The Rio Grande Silvery Minnow Litigation - Is the End in Sight?

Justin S. Tade
Office of Solicitor, U.S. Department of the Interior
Endangered Species Committee Newsletter Regional Reporter,
Southwestern United States

The views expressed in this article are those of the author and are not necessarily the views of the U.S. Department of the Interior.

The endangered Rio Grande silvery minnow is found in the Middle Rio Grande in New Mexico and has been the catalyst for years of litigation involving the species listing, critical habitat designation, and dewatering of the river. The minnow and the water upon which it depends have led to extensive public discourse on the value of this endangered fish and its impact that ranges from the river pools to farmers' fields and home water taps. Since the 1500s, fish, birds, mammals, farmers, ranchers, Pueblos and communities in Colorado, New Mexico and Texas have relied upon the Rio Grande for life. Today, protection of the minnow calls for nothing more than providing enough water at the right time in the Middle Rio Grande to provide for their survival and eventual recovery. However, growing use of the river coupled with occasional droughts has caused federal, state and local government, environmental groups and Rio Grande water users to think diligently about how to balance human needs with minnow needs. As with most rivers in the arid West, the claims, treaties, agreements, and laws governing the distribution of Rio Grande water are complex.

In an effort to keep water in the Middle Rio Grande for the survival of the silvery minnow, a consortium of environmental groups sued the U.S. Bureau of Reclamation (Bureau) and the U.S. Army Corps of Engineers (Corps) in November 1999. The U.S. Fish and Wildlife Service (Service) was added as a named defendant in July 2001. The primary thrust of plaintiffs' complaint was that the diversion of water from the Middle Rio Grande had not been the subject of a Section 7 consultation and was therefore in violation of the ESA. The plaintiffs asked the court to order the Bureau and the Corps to complete consultation with the Service pursuant to Section 7 of the ESA and to undertake actions necessary to avoid take of silvery minnow and jeopardy to the species. This lawsuit led to the intervention of numerous parties, including the State of New Mexico, City of Albuquerque, and the Middle Rio Grande Conservancy District (MRGCD).

Numerous entities play a role in controlling water in the Rio Grande. Two Bureau projects, the Middle Rio Grande Project in New Mexico and the San Juan-Chama Project in Colorado and New Mexico, are involved in this lawsuit. The Middle Rio Grande Project encompasses the stretch of the Rio Grande that was designated as critical habitat for the minnow. Unlike most Bureau projects, the Bureau did not construct the irrigation works associated with the Middle Rio Grande Project and did not file applications to appropriate water rights. All of the "natural flow" water in this stretch of the Rio Grande is spoken for by the MRGCD, six Pueblos, and the Bosque del Apache National Wildlife Refuge. None of these party's rights have been quantified by a water rights adjudication. MRGCD, an intervenor in the lawsuit, claims that its works and rights to Rio Grande water are not subject to ESA Section 7 consultation requirements because they are not federal.

Water from the San Juan-Chama Project is stored in Heron Lake in northern New Mexico and is delivered to entities that have contracts for San Juan-Chama water, including the City of Albuquerque and MRGCD. It has been the position of the Bureau that it does not have discretion, under the San Juan-Chama Project Act, to unilaterally reallocate the amount of deliveries to water contract holders to aid the minnow. Based on the asserted lack of discretion, the Bureau argued that if they have no discretion in regard to water deliveries, then consultation under Section 7 is not required.

In July 2000 the minnow's situation was dire. Due to drought, sections of its critical habitat were drying, thus threatening this imperiled species with extinction. Nearly 100 farmers dependent upon Rio Grande water gathered at the head of an irrigation canal to ensure that water would not be used to save the minnow. While the river dried and biologists waded the Rio Grande to capture and release minnows further upstream where the river was still flowing, the parties to the lawsuit were ordered into mediation. The mediation resulted in two agreements, entered as court orders, for water deliveries to the Middle Rio Grande to provide water for the minnow while continuing to provide water to farmers. In June 2001, the United States and the state of New Mexico reached an agreement to provide supplemental water for the minnow over the next 3 years. In the meantime, the Service completed a biological opinion, thus partially mooting the plaintiff's original complaint.

In July 2001, Plaintiffs filed a second amended complaint. This complaint primarily challenges the Service's biological opinion. Plaintiffs contend that the protections contained in the biological opinion do not provide sufficient water flows to avoid jeopardizing the minnow. Plaintiffs also continue to pursue their argument that the Bureau and the Corps violated Section 7(a)(2) of the ESA by failing to consult with the Service over the full scope of the federal agencies' discretionary actions relating to Middle Rio Grande water storage, releases and deliveries. On April 19, 2002, the New Mexico U.S. District Court issued its decision in this litigation. The court held that the Service's biological opinion was valid even though the Bureau failed to consult with the Service about protecting the silvery minnow using two sources of water under two federal projects, the Middle Rio Grande Project and the San Juan-Chama Project. Taking judicial notice of a current drought, however, the court indicated that reinitiation of Section 7 consultation was likely to happen sooner than Dec. 31, 2003, which is the time period covered by the biological opinion.