[00:00:00] Speaker 00:
The next case, Julio Cesar Basuro Toro Romo versus Alejandro Mayorkas is submitted on the briefs.

[00:00:10] Speaker 00:
And so that brings us to the last case and oral argument in the case of Save the Colorado versus the U.S.

[00:00:18] Speaker 00:
Department of the Interior, Deb Haaland, the Colorado River Energy Distributors Association, and the state of Colorado.

[00:00:27] Speaker 00:
Let me come forward.

[00:00:43] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:46] Speaker 01:
James Saul, on behalf of Appellants, Save the Colorado Living Rivers and the Center for Biological Diversity.

[00:00:52] Speaker 01:
The central issue in this case is the ongoing failure of the Bureau of Reclamation to assess the true impacts of the changing climate on the management and operation of Glen Canyon Dam, as required by NEPA.

[00:01:05] Speaker 01:
For two decades and counting, the Colorado River basin has been gripped by a devastating drought that has significantly curtailed water inflowing into Lake Powell and reduced the reservoir's water storage to a third of its historic capacity.

[00:01:21] Speaker 01:
There is no end in sight to this drought.

[00:01:23] Speaker 01:
And in fact, the best available climate science suggests it is only likely to worsen than the years ahead.

[00:01:29] Speaker 01:
Now the challenges of operating Glen Canyon Dam in this new era of climate change came to a head during the spring and summer of 2022, when the elevation of Lake Powell dropped to within 30 feet of the minimum power pool.

[00:01:43] Speaker 01:
That's the point below which water can no longer move through the dam to generate hydroelectric power.

[00:01:49] Speaker 01:
And this caused the Bureau to make a set of sweeping mid-year changes to the release pattern and schedule from Glen Canyon Dam, mostly by withholding water

[00:01:59] Speaker 01:
during the early spring months and then releasing additional water than originally planned later during the year.

[00:02:05] Speaker 01:
And these mid-year changes were made, at least in part, under the auspices of the Long-Term Experimental and Management Plan, or LTEMP, that is an issue in this case.

[00:02:15] Speaker 01:
The potential for Lake Powell to fall below the minimum power pool was foreseeable at the time the L temps environmental impact statement or EIS was issued in 2016 and the fact that potential was discussed in the basin and the bureaus earlier Colorado River.

[00:02:32] Speaker 01:
basin water supply and demand study that it published in 2012.

[00:02:37] Speaker 01:
But that potential was not considered in the EIS itself.

[00:02:40] Speaker 03:
Mr. Saul, I guess I'm a little confused that you're focusing on the critical elevation for hydropower generation when your claim is that the law doesn't require that generation at all.

[00:02:55] Speaker 03:
I guess it would be helpful if you focused more on the questions of the

[00:03:01] Speaker 03:
the thresholds and the differential between the climate change analyses and the historical analyses adjusted that the agency relied on?

[00:03:09] Speaker 01:
Certainly, Your Honor.

[00:03:10] Speaker 01:
I do want to point out that hydropower is relevant here because all seven of the alternatives that were considered in this EIS assume essentially an unlimited capacity to generate hydropower.

[00:03:24] Speaker 01:
In fact, if you look across the seven alternatives, there's a minuscule, less than a 2% variance in the amount of hydropower that is considered in those alternatives.

[00:03:34] Speaker 03:
Well, that's a function of the annual flows rather than the seasonal flows, and there's quite a bit of difference in the seasonal flows.

[00:03:42] Speaker 03:
Trying to understand here, I mean, the hydropower will either be sustained or not.

[00:03:47] Speaker 03:
It'll either be above or below that level.

[00:03:49] Speaker 03:
But the critical question, both for your hard look and supplemental EIS, is whether the agency properly considered

[00:03:57] Speaker 03:
the flows around that level.

[00:04:01] Speaker 03:
I don't want to spend too much time on the charts, but it does seem that figure 416-2 is kind of where this challenge lives.

[00:04:13] Speaker 03:
Just how much of what is going on that is significant is happening under that 9 million acre foot or 8 million acre foot threshold.

[00:04:25] Speaker 03:
Can you speak a little bit

[00:04:28] Speaker 03:
when we're talking about that critical elevation for hydropower, why didn't the agency properly account for that?

[00:04:36] Speaker 01:
Well, Your Honor, what the Bureau actually did in the EIS is to ignore the projections that it itself had developed as part of the 2012 Basin Study.

[00:04:46] Speaker 01:
That 2012 Basin Study, which it described in the EIS as the best available science,

[00:04:52] Speaker 01:
created what are called a climate change scenario.

[00:04:57] Speaker 01:
I should point out that the very purpose of that 2012 basin study was to identify future water supply demand imbalances and to develop and analyze adaptation or mitigation strategies to kind of get around that.

[00:05:13] Speaker 03:
Why didn't it take account of that sufficiently when it reweighted the historical data?

[00:05:18] Speaker 01:
Well, the important distinction between the 2012 climate change scenario and the hydrologic traces developed as part of the EIS is that in the EIS, the analysis was entirely backwards looking.

[00:05:30] Speaker 01:
What the agency did was to develop a set of 21 hydrologic traces built entirely from the historic record, the flow record from 1906 to 2010.

[00:05:43] Speaker 01:
And it had said in the EIS that it wasn't going to use the climate change scenario that it had developed in the 2012 Basin Study because of some perceived uncertainty about it.

[00:05:56] Speaker 01:
But that was exactly the purpose of that 2012 Basin Study.

[00:06:00] Speaker 01:
The basin study was born from a recognition by the Bureau that entirely backward looking flow projections just simply weren't accurate and were not likely to be predictive of what the flow regime was going to be like in under future climate change.

[00:06:17] Speaker 01:
Even when the low flow regimes were overweighted?

[00:06:19] Speaker 01:
Yes, because the low flow still was only looking at the low flow from the historic record.

[00:06:24] Speaker 01:
And as the 2012 Basin Study recognized, flows are going to be significantly lower, or at least are projected to be significantly lower in the wake of climate change.

[00:06:35] Speaker 01:
And this was in fact discussed in that 2012 Basin Study.

[00:06:38] Speaker 01:
Under the climate change scenario developed as part of the study, the Bureau projected a 9% reduction in mean annual stream flow by mid-century

[00:06:48] Speaker 01:
And it actually projected that Lake Powell would be below the minimum power pool about 24% of the time by 2027.

[00:06:58] Speaker 03:
What impacts would that have on the alternatives?

[00:07:01] Speaker 03:
That's the fallback in terms of its ultimate decision.

[00:07:06] Speaker 01:
Well, again, the Bureau began developing its alternatives on the assumption that hydropower was required, which it is not, and that the reservoir would be sufficiently full to allow hydropower to continue essentially at status quo levels.

[00:07:23] Speaker 01:
And again, the range of variation in hydropower spread across the alternatives was less than 2%.

[00:07:29] Speaker 01:
What the Bureau did not do is consider any alternative that would have

[00:07:34] Speaker 01:
recognized declining capacity to generate hydropower or even worst case scenario potentially consider a total lack of hydropower capacity.

[00:07:45] Speaker 03:
Well, let's set aside the hydropower.

[00:07:47] Speaker 03:
What about because the Bureau did not go with the maximum hydropower alternative.

[00:07:53] Speaker 03:
We can argue about whether hydropower generation is

[00:07:58] Speaker 03:
incident and or required.

[00:08:01] Speaker 03:
But what about all of the other impacts that the statute and then the purpose required the impact statement to address?

[00:08:11] Speaker 01:
Well, so the way I think the hydropower continues to be relevant here is because if the Bureau had developed, for example, an alternative that took hydropower off the table, it could have then considered a much broader range of management scenarios.

[00:08:26] Speaker 01:
that would have been more protective to the downstream resource.

[00:08:31] Speaker 01:
The key statute here is the Grand Canyon Protection Act of 1992.

[00:08:35] Speaker 01:
That's the statute that requires the development of an EIS and it requires a long-term operating plan for the dam.

[00:08:43] Speaker 01:
And the instruction from that statute is to develop a plan to mitigate adverse impacts to the Grand Canyon downstream.

[00:08:52] Speaker 01:
That statute does not require any amount of hydropower generation whatsoever.

[00:08:57] Speaker 01:
In fact, section 1809 of that statute

[00:09:02] Speaker 01:
instructs the Department of Energy to assess and consider alternatives for replacing any hydropower that might be lost as a result of changes to the way the dam is managed under the long-term plan.

[00:09:15] Speaker 03:
Why wouldn't that be in violation of the Colorado River Storage Project Act?

[00:09:20] Speaker 01:
Well, that statute clearly states that the Bureau

[00:09:27] Speaker 01:
can generate hydroelectric power as an incident of the other purposes of the statute.

[00:09:32] Speaker 01:
The primary purposes created by that statute are the regulation of flow and the facilitation of beneficial use of water throughout the basin.

[00:09:42] Speaker 01:
And in this context, the phrase an incident of necessarily means secondary to the other primary purposes.

[00:09:50] Speaker 00:
It's clear that you disagree with the methodology used by the government defendants and you're focusing on hydro power here.

[00:09:59] Speaker 00:
It looks like the government is relying somewhat on the 1956 act.

[00:10:12] Speaker 00:
in that it seems like the act also mandated that hydroelectric facilities be operated in conjunction with other federal power plants present and potential so as to produce the greatest practical amount of power and energy that can be sold at firm power and energy rates.

[00:10:32] Speaker 00:
So doesn't this mean, I guess, from the very beginning that hydro power was a priority at Glen Canyon Dam?

[00:10:39] Speaker 00:
Or what's your response to that?

[00:10:41] Speaker 01:
It doesn't indicate that hydropower was a priority.

[00:10:46] Speaker 01:
The section 620 of 43 USC section 620, which is the 1956 act and again states that hydropower is permitted as an incident of

[00:10:57] Speaker 01:
the other primary purposes of the statute.

[00:11:01] Speaker 01:
And in any event, the instructions of that statute are coming up against the pure physical realities of climate change.

[00:11:09] Speaker 01:
It is going to be impossible to generate hydroelectric power when and if the reservoir level drops below the minimum power pool, which is, again, under the Bureau's own Twenty-Fold Basin Study, projected to be an increasingly common occurrence by middle of this decade.

[00:11:27] Speaker 03:
Let's set aside the hydropower for a second.

[00:11:31] Speaker 03:
All three of your alternatives, why don't those conflict directly with Section 620's requirement that water is stored for beneficial consumption of use?

[00:11:41] Speaker 03:
How are you supposed to do that without a dam?

[00:11:43] Speaker 01:
Well, Your Honor, again, I think the operation of the dam is just going to come up against the physical realities of climate change.

[00:11:51] Speaker 01:
And if you can't get water through the dam to generate hydroelectric power, it's just not going to be feasible in the future.

[00:11:58] Speaker 03:
But I guess where your law may or may not reflect the physical realities, but the agencies

[00:12:07] Speaker 03:
duties and our duties are set by statute and regulation.

[00:12:11] Speaker 03:
That's what we're trying to follow here.

[00:12:15] Speaker 03:
So I guess to get back to the question of the hard look, what's missing in that, for example, the 30 percent that's missing, what scenarios are missing there that are significant

[00:12:31] Speaker 03:
to the agency distinguishing between the alternatives that were on the table.

[00:12:35] Speaker 03:
Let's just assume that those alternatives were a sufficient set.

[00:12:41] Speaker 01:
Well, the main assumption is that again, all of those alternatives assume that water can get through the dam and be released downstream at any point that the Bureau chooses that to happen.

[00:12:52] Speaker 01:
And as the water in the upper basin continues to decline, as the drought worsens, which the climate studies project, and even the Bureau's own 2012 Basin Study projected, all of those alternatives just will become physically impossible to achieve.

[00:13:07] Speaker 03:
What's in the record that

[00:13:08] Speaker 03:
that reflects that.

[00:13:09] Speaker 03:
So I know we have a supplemental EIS claim.

[00:13:14] Speaker 03:
There's some mention in there of 39% chance that it drops into the low release range, 80% chance of depleting all storage, but didn't the agency account for

[00:13:36] Speaker 03:
most of the range of what happens, at least under the 2007 interim guidelines that will actually determine how much water is running through annually?

[00:13:45] Speaker 01:
Well, the agency ignored the 2012 basin study, which did in fact project the scenario that we are contemplating now and that the dam experienced in 2022, which is water falling below the lowest range projected and with the historic analysis that's reflected in the EIS.

[00:14:04] Speaker 03:
And is that below the

[00:14:05] Speaker 03:
Right, we've got 30th percentile.

[00:14:09] Speaker 03:
The agency does its sensitivity studies down to the 25th percentile.

[00:14:16] Speaker 03:
So I'm trying to really get a sense for just how much here is missing, right?

[00:14:20] Speaker 03:
The sensitivity studies that it does for the analyses, which is its chosen methodology, get us down to 25% of the flows.

[00:14:30] Speaker 03:
Can you just map on the 2012 study?

[00:14:33] Speaker 03:
And then I'm also going to ask you to map on your supplemental evidence onto the lowest range that the agency did consider.

[00:14:41] Speaker 01:
Well, I don't have precise numbers to give you in terms of million acre feet, for example.

[00:14:46] Speaker 01:
But the EIS acknowledges that the bottom 30% of the range of future likely flows are simply excluded in its own hydrologic trace analysis.

[00:14:57] Speaker 01:
Even if the NEPA analysis was sufficient when the EIS was published in 2016, the Bureau here unlawfully failed to prepare a supplemental EIS as required by NEPA.

[00:15:08] Speaker 01:
This court has held that the significance threshold for triggering an SEIS is a low standard.

[00:15:16] Speaker 01:
That's League of Wilderness Defenders versus Connaughton.

[00:15:19] Speaker 01:
And Save the Colorado submitted a letter in June of 2019 to the Bureau.

[00:15:23] Speaker 01:
requesting an EIS and attaching six new climate studies that collectively show that the analysis included in the EIS was insufficient and woefully inadequate for the purpose.

[00:15:37] Speaker 00:
Let me ask you about that because it seems like what's required is that there be significant new circumstances or information and I guess my question for you is why do these six post 2016

[00:15:52] Speaker 00:
studies reflect significant new information, analysis, and conclusions?

[00:15:58] Speaker 01:
Well, most importantly, because they show that the alternatives considered in the EIS are likely to be physically impossible to achieve at any point in the future.

[00:16:07] Speaker 01:
And collectively, these six studies show that the drought that the basin is now experiencing is only likely to worsen in the future.

[00:16:16] Speaker 01:
The worsening is going to be more extreme than was projected in 2016, and the effects of the drought are going to be felt in the basin sooner.

[00:16:25] Speaker 03:
What was the bare minimum that the agency would have had to do, in your view, to respond to your request for a supplemental environmental assessment?

[00:16:34] Speaker 01:
What's required by NEPA as this court held in friends of the Clearwater versus Dombeck is that the agency be open and receptive to the new information to consider it and to make a reason determination as to its significant.

[00:16:49] Speaker 00:
Now, obviously we think that it needs to have materially altered or affected the process or the result.

[00:16:59] Speaker 00:
What, what, what's, what's your position there?

[00:17:02] Speaker 00:
Because it seems like

[00:17:04] Speaker 00:
And this is what I'm struggling with on on this is need to potentially affect the result or simply the process.

[00:17:14] Speaker 01:
Clearly will affect both your honor and it kind of again goes back to the ability to achieve.

[00:17:19] Speaker 01:
the alternatives that the agency chose to consider in the EIS.

[00:17:24] Speaker 01:
As the drought worsens, as the drought forces shifts in the timing of flow and runoff in the basin, water will become a challenge to get through the dam and to move downstream.

[00:17:38] Speaker 01:
And it will become frankly impossible for the Bureau to generate any amount of electricity at the dam.

[00:17:48] Speaker 03:
acknowledged, engaged in a supplemental environmental impact statement on the annual flows.

[00:17:54] Speaker 03:
Why couldn't it wait to conduct that analysis and then come back to the LTEMP sub annual flows?

[00:18:06] Speaker 03:
It seems like otherwise it's kind of the tails wagging the dog, isn't it?

[00:18:09] Speaker 01:
I don't think so, Your Honor.

[00:18:11] Speaker 01:
Well, the LTEP was issued in 2016, and here we are seven, eight years into the 20-year lifespan of the LTEP.

[00:18:18] Speaker 01:
That analysis is urgently needed now in order for the Bureau to be able to assess the effects of climate change and to develop a series of alternatives that are just more feasible in light of climate change.

[00:18:31] Speaker 02:
Isn't this an ongoing process?

[00:18:33] Speaker 01:
Well, there is a process underway to consider and likely develop an EIS for the next set of interim guidelines that will address annual releases.

[00:18:43] Speaker 01:
But that future EIS is still early in its draft phase right now.

[00:18:47] Speaker 01:
We're not sure what the analysis will ultimately contain.

[00:18:50] Speaker 01:
And importantly here, it won't consider

[00:18:53] Speaker 01:
Glen Canyon dams operations specifically, and it won't affect the LTMP or lead to an analysis that might affect the LTMP.

[00:19:01] Speaker 01:
That can only happen through here, in this case, a supplemental EIS for this particular decision.

[00:19:08] Speaker 00:
Did you want to reserve the balance?

[00:19:09] Speaker 01:
I would.

[00:19:09] Speaker 01:
Thank you, Your Honor.

[00:19:23] Speaker 04:
Good morning, Your Honor.

[00:19:24] Speaker 04:
May it please the Court.

[00:19:26] Speaker 04:
John Beese from the Department of Justice on behalf of the federal defendants.

[00:19:29] Speaker 04:
With me at Council's table is Council for the Intervener States and Council for the Intervener Energy Distributor Associations.

[00:19:37] Speaker 04:
The federal defendants here initiated an administrative proceeding to tackle a very discreet task assigned to it by Congress in the Grand Canyon Protection Act, which was limited to evaluating what timing of releases from the dam would best protect natural, cultural, and recreational resources in Grand Canyon National Park and Glen Canyon National Recreation Area.

[00:19:57] Speaker 04:
That is, the timing of the releases and not the volume.

[00:20:00] Speaker 04:
The volume of releases is set

[00:20:03] Speaker 04:
by other administrative proceedings under other statutes.

[00:20:06] Speaker 04:
So the only question before the agencies here is, for a given volume of release from the dam, what's the best way to release it to protect resources downstream, like increasing sediment sand bars in the park, or helping the humpback chub, which is a threatened species in the river, or ensuring that the rainbow trout fishery continues to develop, which is something the tribes rely on?

[00:20:30] Speaker 03:
What good is

[00:20:32] Speaker 03:
studying the variation of flows in the river if there's no water in it or not enough.

[00:20:41] Speaker 04:
So the whole point of having a system of reservoirs is to provide operational certainty for water users in the context where there's hydrological uncertainty.

[00:20:51] Speaker 04:
You don't know how much rain there will be each year.

[00:20:53] Speaker 04:
And the purpose of the dams is to make sure there's enough water to serve contracts like, for instance, the central

[00:20:58] Speaker 04:
Arizona project, which provides a typical year, a million acre feet of water for Phoenix, those users need to know the water is available.

[00:21:08] Speaker 04:
And Tucson.

[00:21:09] Speaker 04:
And Tucson.

[00:21:09] Speaker 04:
And Tucson.

[00:21:10] Speaker 04:
So you use the reservoirs to hold the water in the years where you have a lot of rain to make up shortfalls in years when you have less.

[00:21:19] Speaker 04:
And are there, of course, are there scenarios?

[00:21:22] Speaker 03:
Sorry, I guess there are scenarios where

[00:21:27] Speaker 03:
whether you look at it in terms of elevation or acre feet, the storage runs out.

[00:21:35] Speaker 03:
Those are foreseeable scenarios that have been presented before the agency, correct?

[00:21:40] Speaker 04:
I would say the agency certainly recognizes that climate change presents an important challenge for the Colorado River Basin that requires further thought about

[00:21:51] Speaker 04:
how much water can be relied upon in the system and how much water can be stored and released from the dams.

[00:21:56] Speaker 03:
It's not foreseeable that there's at least a significant chance that storage goes away, in which case none of these alternatives make any sense?

[00:22:10] Speaker 04:
The agency, I think, is confronting those questions in the appropriate administrative context in evaluating

[00:22:16] Speaker 04:
two things.

[00:22:16] Speaker 04:
One, they have a current proceeding underway to consider whether for the water years where the 2007 interim guidelines are still in place, which is 24, 25 and 26, whether there need to be adjustments to that in light of the drought experience.

[00:22:32] Speaker 04:
And then there's a separate administrative proceeding for the post 2026 interim guidelines that will govern the annual amounts.

[00:22:39] Speaker 04:
And it could be that they'll learn that decide in those proceedings that they'll be

[00:22:45] Speaker 04:
less average inflow into the system.

[00:22:47] Speaker 03:
Wasn't this foreseeable on the record of the environmental impact statement that's before us?

[00:22:55] Speaker 04:
I think the amount of water overall is unlikely to impact what timing of release best protects the downstream resources.

[00:23:03] Speaker 04:
If there's no storage, how are you supposed to time the releases?

[00:23:06] Speaker 04:
So I don't think there's an anticipation that there will be no storage.

[00:23:08] Speaker 04:
I think the question is whether or not the drought will permit the continued amount of the current releases.

[00:23:14] Speaker 04:
Right now,

[00:23:15] Speaker 04:
The water decrees assume about 15 million acre feet a year, which was the experience in the early 20th century.

[00:23:23] Speaker 04:
And maybe that amount is less.

[00:23:26] Speaker 04:
Now, maybe the average is going to be, I think, the 2012 study projects somewhere between 3.5 and 8.5 percent decline by 2050.

[00:23:36] Speaker 04:
There will still be a lot of water in the system.

[00:23:38] Speaker 04:
It will just be less than was being relied upon.

[00:23:40] Speaker 04:
Those questions are best analyzed in the context of the annual amounts released.

[00:23:45] Speaker 04:
not in the context of figuring out whether or not releasing it in April or June is best protective of the humpback chub or protects sediment.

[00:23:52] Speaker 03:
Why isn't the absence of the driest 30% significant to your analysis of these alternatives?

[00:23:59] Speaker 04:
Sure.

[00:23:59] Speaker 04:
The agencies looked very carefully at whether or not climate change scenarios would impact how effective the different alternatives were.

[00:24:09] Speaker 04:
They did a sensitivity analysis that

[00:24:12] Speaker 04:
provided extra weight to the driest years to anticipate potential climate impacts.

[00:24:17] Speaker 04:
And they learned that although the aggregate performance of all of the alternatives was affected by climate change when there were drier years, it affected the aggregate performance of all, the relative performance of the different alternatives wasn't impacted materially by different climate scenarios.

[00:24:34] Speaker 04:
And if that's true for the range from 75% to 25%, there's no reason to think it would be different in lower ranges.

[00:24:41] Speaker 04:
Why not?

[00:24:42] Speaker 04:
Because if the climate scenarios aren't affecting whether alternative D performs better than alternative B or alternative G, those questions, if it's not sensitive to that, it shows that the alternatives are robust against those different uncertainties, that they perform, relatively speaking, they perform the same across all climate scenarios.

[00:25:04] Speaker 04:
And so further testing on climate data, as the agency's experts concluded here, would not

[00:25:10] Speaker 04:
provide valuable information and deciding between those alternatives.

[00:25:14] Speaker 03:
Somewhere in that 30% or in the 0 to 25% that used for the sensitivity analysis, the storage runs out, right?

[00:25:23] Speaker 04:
So I think if we were in a scenario where it looked like storage was running out, that would be something that would be addressed in the context of the annual amounts released, and it would ensure those adjustments

[00:25:34] Speaker 04:
ideally should ensure that we wouldn't be in a scenario where the water would run out.

[00:25:37] Speaker 04:
But when we're talking about issues involved, as my friend said, millions of acre-feets of water, and that it would be practically impossible to achieve things in the system, those are questions about what is the reliable amount of water that can be released from the system each year, which is an annual amount question.

[00:25:55] Speaker 04:
That's volume.

[00:25:56] Speaker 04:
That's a volume question.

[00:25:58] Speaker 04:
It's not a timing question.

[00:26:00] Speaker 04:
So it's beyond the scope of what the agencies were considering here.

[00:26:03] Speaker 04:
I mean, my friend said if you take hydropower off the table, there would be all these other alternatives they might have considered, but that's beside the point because the timing question is governed by taking a given volume.

[00:26:17] Speaker 04:
So the 2007 guidelines right now say no matter what the scenario, there's a minimum seven million acre feet released every year from Glen Canyon Dam.

[00:26:27] Speaker 04:
So that seven million acre feet, then the question is, what is the timing?

[00:26:30] Speaker 04:
That's what this proceeding is looking at.

[00:26:32] Speaker 04:
Whether that seven million acre feet needs to be reduced to six million acre feet because of drought, that's a question to be considered in the context of the annual amounts released, not in the context of how you distribute that amount across a year.

[00:26:47] Speaker 04:
Do you release it in the spring or do you do it evenly across a year?

[00:26:51] Speaker 04:
Those are the types of questions that the agencies were looking at in this proceeding and structuring their decision-making like that is something

[00:26:57] Speaker 04:
this agency's prerogative to decide.

[00:26:59] Speaker 04:
They're entitled to structure it in a way they think is sensible and is in fact, sorry.

[00:27:03] Speaker 03:
Could you, so help me understand here in terms of the, so we have in figure 416.2, right, which where the petitioners have suggested is the best analysis.

[00:27:19] Speaker 03:
The bar on the right, that reflects, does that reflect the,

[00:27:27] Speaker 03:
projection weighted historic scenarios that the agency considered?

[00:27:32] Speaker 03:
I believe the bar on the... It says historic and climate change and I'm just trying to... I don't think it shows the weighting in that chart.

[00:27:40] Speaker 04:
I think it's just showing what is the range in the historic traces and what is the range in the 2012 study.

[00:27:47] Speaker 03:
Okay, so the weighting

[00:27:50] Speaker 03:
would have the effect of bringing, I'm trying to understand this concession that you're missing 30% and that this is the description of the 30%.

[00:27:58] Speaker 03:
Even with the weighting of the historical data, the agency still

[00:28:06] Speaker 03:
omitted the driest 30% of years.

[00:28:08] Speaker 04:
So what the agency did with the weighting is if you take, they took 21 historical traces, which are like a 20-year experience on the river, what was the inflow and outflow for that 20 years?

[00:28:17] Speaker 04:
And you look at it from 1905 to 1925, then 1910, then 19...

[00:28:22] Speaker 04:
30, et cetera, that's a 20-year trace.

[00:28:25] Speaker 04:
They took the driest, if you took them all and weighted them equally, that's 21 traces, it would be about slightly under 5% of the weight in the model.

[00:28:33] Speaker 04:
Instead of doing that, they took the driest trace and gave it an 18% weight in the model so that the modeling would really flag for them if there was an issue with drier traces and how that different alternative was performed.

[00:28:46] Speaker 04:
And what they learned was that

[00:28:48] Speaker 04:
different climate scenarios did not affect the relative performance of the alternatives on the resource goals in the LTEMP.

[00:28:55] Speaker 04:
It did affect, it did have an aggregate impact because there was less water, but it didn't affect whether alternative D was better than a different alternative.

[00:29:02] Speaker 04:
And so because it's not relevant to the decision before them here, the timing question that they're answering here, they concluded they didn't need to model more of that range because they determined that the alternatives were robust against those different uncertainties.

[00:29:17] Speaker 04:
that they weren't sensitive to that in their relative performance.

[00:29:21] Speaker 04:
So if they're deciding which one performs best relatively, they pick the one that performs best even in the dry.

[00:29:28] Speaker 04:
They didn't show, for instance, that alternative D did better in wet years, but alternative F did better in dry years.

[00:29:36] Speaker 04:
It showed that they all

[00:29:37] Speaker 04:
performed relatively the same across the different scenarios.

[00:29:40] Speaker 03:
Does that sensitivity analysis, and excuse me for being technical, and please correct me if I get any of the technical parts wrong.

[00:29:48] Speaker 03:
If I can.

[00:29:50] Speaker 03:
Did it consider the low release regime under the 2007 interim guidelines?

[00:29:58] Speaker 03:
You mentioned the seven million acre feet, for example.

[00:30:02] Speaker 03:
Did it consider that?

[00:30:04] Speaker 03:
Because the bars don't suggest that it did.

[00:30:07] Speaker 03:
That driest year is still wetter than the low release regime under the guidelines, isn't it?

[00:30:15] Speaker 04:
It considered the full range of inflows.

[00:30:19] Speaker 04:
So the 7 million is the release amount, not the inflow amount into the reservoir.

[00:30:24] Speaker 04:
It included the range of historical experience, including the driest one in the past 118 years.

[00:30:34] Speaker 04:
evaluate what that meant for the annual flows because those are set in a different process.

[00:30:38] Speaker 04:
But, you know, it did look at what that was.

[00:30:43] Speaker 04:
And I think the main point from the agency's perspective is if wet years and dry years aren't affecting which alternative is best, it's not relevant here.

[00:30:55] Speaker 04:
It might be, you know, of course it is important in the context of what the annual amounts are and the agency is

[00:31:00] Speaker 04:
considering it in that appropriate context.

[00:31:03] Speaker 04:
And so issues like whether or not there'll be a point where the dams are physically unable to release water and things like that, that's a question of annual amount.

[00:31:11] Speaker 04:
Is there enough that we can keep releasing seven million acre feet every year and still have water in the dam?

[00:31:16] Speaker 04:
If it turns out in those proceedings, the agency concludes that there need to be adjustments to those amounts to make sure there's water in the dam.

[00:31:22] Speaker 04:
I think that is the context where those questions are being considered.

[00:31:26] Speaker 04:
If climate change will make the operation of the dams impossible,

[00:31:30] Speaker 04:
As my friend said, that's the place where the agency would have to confront that issue and think about it and think how do we change the annual amounts to make sure that we can continue to operate the dams as we're required to by statute.

[00:31:42] Speaker 04:
But what the sensitivity analysis showed is it doesn't mean that there's a difference in how the timing of the water within the year should be done.

[00:31:51] Speaker 04:
That if the annual amount comes down to six million acre feet a year instead of seven,

[00:31:57] Speaker 04:
the long-term average looks like is twelve million and not fifteen million that will affect of course

[00:32:10] Speaker 04:
If it's six million instead of seven million, that means if 10% is released in April, 10% is less than it would be with seven million.

[00:32:16] Speaker 04:
But it doesn't affect the distribution within a year.

[00:32:19] Speaker 04:
Sorry.

[00:32:19] Speaker 02:
At some point in the process, the plaintiffs requested supplemental information and a new SEIS.

[00:32:29] Speaker 04:
Correct.

[00:32:29] Speaker 04:
They sent a letter to the agency in 2019 suggesting that a supplemental environmental impact statement should... Did the agency respond?

[00:32:35] Speaker 04:
The agency did not respond.

[00:32:37] Speaker 00:
uh... that is that a nipah violation right there we don't believe so i think from our perspective the letter raises the same issues that they raised in their comments to the i thought that if you don't respond that that's just automatically i mean almost automatically a nipah violation the question is then whether it was prejudicial is am i correct in my analysis

[00:33:01] Speaker 04:
that our view is that we don't necessarily have to respond to every single letter if they don't raise new significant issues.

[00:33:08] Speaker 00:
Let's talk about whether or not this is significant because that was the question I had.

[00:33:12] Speaker 00:
I think that's appropriate.

[00:33:14] Speaker 00:
So I guess to Judge Hawkins.

[00:33:16] Speaker 00:
So let me ask you because you argue that the supplemental statement was not required because the additional climate change information

[00:33:26] Speaker 00:
would not inform how best to adapt or manage dam operations through the timing of releases and protect down stream resources, which is what you've been talking about in terms of defending the report in general.

[00:33:42] Speaker 00:
But I guess, how do you know

[00:33:46] Speaker 00:
that the post 2016 studies would not inform the operations if you did not acknowledge them and analyze them.

[00:33:57] Speaker 04:
So I guess the agency's analysis in the 2016 environmental impact statement concluded that

[00:34:07] Speaker 04:
different climate scenarios did not affect the relative performance of the alternatives on the timing of release.

[00:34:13] Speaker 04:
It's obviously relevant to annual amounts, but it's not relevant to the timing of release.

[00:34:19] Speaker 04:
And in fact, the points made in the letter in 2019 and the studies attached to it are quite similar to comments that the plaintiffs made in the administrative process and the agency addressed in its response to those comments.

[00:34:32] Speaker 04:
I think it's at 8 PR 1833 and 34.

[00:34:38] Speaker 04:
They didn't respond to the letter, but it didn't raise.

[00:34:42] Speaker 02:
I think what you're telling us both here and in your briefing is that there's an easy response to it, but you didn't even bother to do that.

[00:34:52] Speaker 00:
Even while this has been pending, there's been no response, is that correct?

[00:34:57] Speaker 00:
I believe so.

[00:35:00] Speaker 00:
You didn't respond at all, correct?

[00:35:02] Speaker 04:
Right.

[00:35:03] Speaker 04:
After the 2019 letter.

[00:35:06] Speaker 00:
Right.

[00:35:09] Speaker 00:
It seems like the FEIS was based on the Bureau of Reclamation's 2012 study and historical data weighted to reflect potential future drought scenarios.

[00:35:25] Speaker 00:
If it turns out that the ongoing mega drought is much worse than anyone forecast,

[00:35:35] Speaker 00:
I guess my question in 2012, isn't it possible that the new climate science would change the analysis in the environmental impact statement?

[00:35:48] Speaker 04:
So I think the agencies concluded in the 2016 environmental impact statement that those questions may be very important to the question of the annual volume, but they were not materially affecting the relative performance of the alternatives on the timing.

[00:36:02] Speaker 04:
excuse me, on the timing.

[00:36:03] Speaker 04:
And since this proceeding was limited to the timing question, they didn't think that information was relevant to those questions.

[00:36:11] Speaker 04:
The agency is obviously looking at those questions in the context of the annual amounts question, the annual volume question, which is where we believe they're most relevant in the appropriate administrative context, where the questions raised by the 56 and 68 Act are being addressed, not the questions addressed by the

[00:36:28] Speaker 04:
Grand Canyon Protection Act here.

[00:36:29] Speaker 03:
Mr. Reese, I guess, again, just to hone in on this, I think the argument here in some ways, Senator, is I'm looking at page 44 of your brief.

[00:36:43] Speaker 03:
You argue, as you do here today, there's common sense that modeling factors aren't likely to affect the relative performance of the alternatives under consideration in terms of the variation of the flows that you're looking at.

[00:36:58] Speaker 03:
Line D, the cyan line, lines pretty well up with the other ones.

[00:37:03] Speaker 03:
And so I see that point on the record.

[00:37:06] Speaker 03:
It's the following sentence, which is not supported by any citation to the record or otherwise that I'm hung up on.

[00:37:18] Speaker 03:
Sure, the variation within a range doesn't seem to make a difference according to the sensitivity analysis, or that might be an area where we're going to defer.

[00:37:26] Speaker 03:
But the range itself,

[00:37:28] Speaker 03:
The bottom of that range seems to be missing the consideration of significant information about how much water is going to be available to time throughout the year.

[00:37:45] Speaker 04:
If there are concerns about how much water is available in the system, that is something that would have to be addressed in the context of the agency's obligations under the 56 and 68 acts in the context of the long-term operating criteria.

[00:37:59] Speaker 04:
And once they are addressed there, I think the LTEM reasonably assumes that there will be some annual volume being released, whether at 6 million or 5 million or 7 million acre feet.

[00:38:11] Speaker 03:
But if it reasonably assumes, I mean, did the final EIS assume a release of 5 million acre feet?

[00:38:18] Speaker 03:
I didn't see that.

[00:38:19] Speaker 04:
No, it assumed, as was legally required when they did it, that there was a minimum of 7 million acre feet being released.

[00:38:25] Speaker 04:
because that was the legal requirement under the 2007 guidelines at the time.

[00:38:30] Speaker 04:
But if the pattern of distribution, the pattern of timing within a year needs to be reduced because the annual volume is reduced, that isn't something that would be considered here unless that reduction affected when it should be released.

[00:38:44] Speaker 04:
If we're only releasing five million, should we release more in the spring or a question like that?

[00:38:49] Speaker 04:
But the sensitivity analysis showed that

[00:38:54] Speaker 04:
it wouldn't affect the relative performance of the alternative.

[00:38:58] Speaker 04:
So it wouldn't affect which alternative should be selected, regardless of whether it's 9 million or 7 million or 6 million.

[00:39:05] Speaker 00:
So are you saying that the six studies that came out later that the plaintiffs appellants are pointing to would not have had an impact or affected the sensitivity studies?

[00:39:21] Speaker 04:
Yeah, I think the agency's analysis, their experts concluded that the amounts weren't sensitive to differences in climate scenarios, that they were robust against more drought situations and more wet situations as we see, you know.

[00:39:37] Speaker 00:
And so my question is just process and procedure at this point, though.

[00:39:41] Speaker 00:
You didn't need to submit a declaration or a statement to that.

[00:39:45] Speaker 00:
In fact, I acknowledged the response because it wouldn't have

[00:39:50] Speaker 00:
it's no, there's no prejudice.

[00:39:52] Speaker 00:
Is that what you're arguing?

[00:39:54] Speaker 00:
So I think, and what's your best case?

[00:39:57] Speaker 04:
I think if the court's view is that we should have responded, I think our argument would still be that it's harmless error because those studies aren't relevant based on the analysis and the final impacts, final environmental impact statement.

[00:40:10] Speaker 04:
Um, and obviously things like the 2022, uh, supplemental environmental notice of intent,

[00:40:17] Speaker 04:
isn't even relevant to the 2019 letter because they came out much later and aren't part of the case.

[00:40:23] Speaker 03:
I see my time is up.

[00:40:25] Speaker 03:
Could I ask just one more question about the record just so I can understand this?

[00:40:30] Speaker 03:
Can you help me with the concordance between the, so you'd said very helpfully that the

[00:40:38] Speaker 03:
final environmental impact statement and the sensitivity analysis considered flows all the way down to the bottom of the low release range that's provided by the interim guidelines.

[00:40:51] Speaker 03:
How does that match up with the 75 percentile mean and 25th percentile sensitivity analysis that you do?

[00:41:00] Speaker 03:
I'm just having trouble finding in the environmental impact statement where

[00:41:06] Speaker 03:
it states and considers that the bottom of the possible flows under the guidelines at that seven million acre feet.

[00:41:15] Speaker 04:
So I guess they modeled everything and what they were looking at was the relative performance of the different alternatives at the bottom, in the middle, at the top of the range, across all of the possible climate scenarios because they don't know what the future will hold.

[00:41:29] Speaker 04:
They can only see how robust the alternatives perform in different scenarios.

[00:41:33] Speaker 04:
And so the places where they looked at that and concluded there's not a meaningful difference in their performance, you can see it in the rod at 4ER641 to 42.

[00:41:44] Speaker 04:
And you can see it in the EIS at 6ER1113.

[00:41:51] Speaker 04:
And then again, at 8ER1742.

[00:41:55] Speaker 04:
And I think in that section more broadly about climate change there.

[00:41:58] Speaker 04:
And then again, in the response to the comments

[00:42:00] Speaker 04:
from the plaintiffs at 8ER 1833 to 34.

[00:42:03] Speaker 04:
I think in all of these places, they make the point that when we study the sensitivity to wet and dry scenarios, and that kind of uncertainty is what you're gonna get with climate change, more variability as we're seeing now in California.

[00:42:15] Speaker 04:
There is also more rain sometimes, more drought sometimes.

[00:42:19] Speaker 04:
The purpose of the dam is to even that out and provide operational security to water users.

[00:42:25] Speaker 04:
Thank you very much for your patience.

[00:42:26] Speaker 04:
We ask the court to affirm the decision below.

[00:42:29] Speaker 00:
Thank you.

[00:42:42] Speaker 01:
Your Honors, the argument that the LTMP is just a narrow decision that is unrelated to the annual release volume and would therefore be unaffected by future climate change is belied by the EIS itself.

[00:42:58] Speaker 01:
In the EIS, the Bureau admits that climate change effects, such as decreased inflow into the reservoir system and greater evaporation and evapo-transpiration losses, quote, would affect all of the LTEMP alternatives.

[00:43:11] Speaker 01:
That's 6ER1113.

[00:43:12] Speaker 01:
And they even admit that these climate change issues will require the Bureau to make specific adjustments to daily and monthly release volumes under the LTEMP.

[00:43:22] Speaker 01:
That's 5ER1018.

[00:43:24] Speaker 01:
And the experience of 2022 shows how this is likely to happen in the future.

[00:43:31] Speaker 01:
Council for the Bureau suggests that the LTMP was intended to create operational certainty.

[00:43:36] Speaker 01:
Operational certainty went out the window in 2022, and that is likely to be the norm going forward due to climate change.

[00:43:46] Speaker 01:
To the extent that the Bureau might have considered the available storage elsewhere in the system, including reservoirs further upstream as a means to balance out flows, lower flow years versus high flow years, one of the studies included with Save the Colorado's SEIS letter, the Re and Salazar study at 2ER 276, actually projects with 80% certainty

[00:44:10] Speaker 01:
that due to climate change and the ongoing drought, all of the storage in the upper basin will be depleted.

[00:44:16] Speaker 01:
So that kind of balancing technique just won't be available to it.

[00:44:21] Speaker 01:
And with that, we ask the court to reverse the decision of the district court and vacate the record of decision for the LTEP here.

[00:44:28] Speaker 01:
Thank you, Your Honor.

[00:44:29] Speaker 00:
Thank you very much, Mr. Saul, Mr. Bees, and your other colleagues at council table.

[00:44:37] Speaker 00:
appreciate your presence here today in the oral argument presentations.

[00:44:41] Speaker 00:
The case of Save the Colorado versus the U.S.

[00:44:44] Speaker 00:
Department of the Interior Colorado River Energy Distributors Association in the state of Colorado is now submitted.

[00:44:53] Speaker 00:
And that concludes our calendar for today.

[00:44:56] Speaker 00:
So we are adjourned.

[00:44:57] Speaker 00:
Thank you.