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1 <br />11 <br />I� <br />u <br />1 III. ADMINISTRATIVE AND STATUTORY RESPONSES TO RECLAMATION'S <br />DAM OPERATIONS <br />2 <br />A. FWS's 1978 Biological Opinion <br />3 <br />Between 1963 and 1991, Reclamation operated the Dam under an extremely high <br />4 <br />fluctuating flow regime to promote hydropower revenues. In 1978, FWS reviewed these <br />5 <br />operations and prepared an ESA section 7(a)(2) biological opinion, concluding Dam <br />6 <br />operations "jeopardize" the humpback chub. According to FWS, "[p]ast, present and <br />7 <br />proposed future operations of Glen Canyon Dam ... [are] jeopardizing the continued <br />8 <br />existence of the species by limiting its distribution and population size." Exh. 1 (1978 BO) <br />9 <br />at 5. FWS based its conclusion on "abnormal water conditions that result from the <br />10 <br />operation of Glen Canyon Dam." Id. at 2. These conditions altered the natural fluctuations <br />11 <br />of the river's levels and introduced cold water. Id. at 2 -3.6 Reclamation did not modify <br />12 <br />operations as a result of FWS's findings and biological opinion. <br />13 <br />B. Grand Canyon Protection Act of 1992 <br />14 <br />Dissatisfied with degraded conditions that were manifested by, among other things, <br />15 <br />the loss of four of eight fish native to the Grand Canyon, Congress enacted the Grand <br />16 <br />Canyon Protection Act of 1992 (GCPA). Congress intended that this new legislation would <br />17 <br />compel Reclamation to change its Glen Canyon Dam operations in a manner that protects <br />18 <br />downstream natural resources. GCPA requires Reclamation to: <br />19 <br />exercise other authorities under existing laws in such a manner as to protect, <br />20 mitigate adverse impacts to, and improve the values for which Grand Canyon <br />National Park and Glen Canyon National Recreation Area were established, <br />21 including, but not limited to natural and cultural values and visitor use. <br />22 GCPA, Public Law No. 102 -575, § 1802(a). The primary purpose of the Grand Canyon <br />23 Protection Act "is to take immediate and lasting steps to protect the resources of the Grand <br />24 Canyon." H.R. Rep. No. 102 -114 Part 1, at 85 -86 (1991); S. Rep. No. 102 -267 at 135 <br />25 (1992) ( "The primary purpose of this title is to authorize changes in the operation of Glen <br />26 <br />27 6 In 1978, FWS had not yet designated critical habitat for the chub. As a result, FWS <br />28 did not determine whether Dam operations adversely modify chub critical habitat in the <br />1978 Biological Opinion. <br />Memorandum in Support of Ms.' 8 <br />Motion for Summary Judgment <br />