Regional Report: Southwest Region

Justin S. Tade
U.S. Department of the Interior

10th Circuit Requires U.S. Fish and Wildlife Service to Prepare an Environmental Impact Statement for Rio Grande Silvery Minnow Critical Habitat Designation

On June 21, 2002, the 10th Circuit Court of Appeals affirmed a district court decision ordering the USFWS to prepare an Environmental Impact Statement (EIS) and issue a critical habitat designation for the Rio Grande silvery minnow. Middle Rio Grande Conservancy District, et al. v. Norton, Nos. 01-2057 and 01-2145 (10th Cir. 2002). The Rio Grande silvery minnow was listed as endangered in July 1994. 59 Fed. Reg. 36,988 (July 20, 1994). USFWS did not designate critical habitat at the time of listing. After granting itself an extension to designate critical habitat, USFWS issued its final designation in July 1999. 64 Fed. Reg. 36,274 (July 6, 1999).

In the 10th Circuit, USFWS is required to comply with the National Environmental Policy Act (NEPA) before designating critical habitat for listed species. Catron County v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996). NEPA requires that a detailed statement on the environmental impact of a proposed federal action be made before a federal agency proceeds with a “major Federal action significantly affecting the quality of the human environment.” 42 U.S.C. 4332(2)(c). This detailed statement is called an EIS. 40 C.F.R. 1508.11. However, before writing an EIS, a federal agency may conduct an Environmental Assessment (EA). Id. at 1501.4(b), (c). If after conducting an EA the agency finds that the action will have no significant impact, no further NEPA work is required. However, if the agency finds a significant impact, then the more detailed EIS is required.

In July 1999, USFWS designated critical habitat for the endangered silvery minnow. The designation was challenged on several grounds including that the designation did not comply with NEPA. Typically, the initial decision as to whether to prepare an EIS is left to federal agencies, not reviewing courts. Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 429 (10th Cir. 1996). Regardless of this precedent, the district court ordered USFWS to conduct an EIS and propose a new critical habitat designation within 120 days. USFWS conducted an EA and proposed new critical habitat. USFWS then argued that the new critical habitat designation would have fewer impacts on the human environment so they should be allowed to determine whether an EIS was necessary for the new designation. The 10th Circuit disagreed.

The court found that USFWS’s delayed and inadequate compliance with NEPA and the ESA “have helped to push the Silvery Minnow perilously close to extinction, and because the record contains overwhelming evidence of the environmental impacts of a critical habitat designation, this case represents one of the rare circumstances when a remand to the agency to conduct yet another EA is not appropriate.” Middle Rio Grande Conservancy District, et al. v. Norton, supra. The court found also found weakness in Defendant’s arguments that an EA was appropriate due to the fact that USFWS’s new proposed designation was actually broader than the first designation.

Justin S. Tade is an attorney advisor with the U.S. Department of Interior Southwest Regional Solicitor’s Office. Any views expressed in this article are the authors’ and not necessarily the views of the U.S. Department of Interior.