Rio Grande Silvery Minnow v. Bureau of Reclamation, called Rio Grande Silvery Minnow v. Keys in its earlier phases, was a case launched in 1999 by a group of environmentalists against the United States Bureau of Reclamation and the United States Army Corps of Engineers alleging violations of the Endangered Species Act and the National Environmental Policy Act. The case resulted in significant changes to water and river management in the Middle Rio Grande Basin of New Mexico in an effort to reverse the damage that had been done to the habitat of two endangered species.
The waters of the middle section of the Rio Grande in New Mexico, running from north to south past the city of Albuquerque, have been used for irrigation for at least 1,000 years. The Middle Rio Grande Conservancy District built new dams, canals and ditches in the 1930s. In the 1950s the Bureau of Reclamation and Corps of Engineers took over responsibility for rehabilitating, maintaining and operating the storage dams and the river channel. The changes drastically affected the habitat of native fish, including the once-common Rio Grande silvery minnow. The minnow was declared endangered in 1994.
In 1999 a group of conservationists filed suit against the Bureau of Reclamation and the Corps of Engineers on the grounds that they had failed to adequately consult with the United States Fish and Wildlife Service, as required under the Endangered Species Act, to determine if action should be taken to avoid jeopardizing the minnow. The case revolved around whether the Bureau of Reclamation had the authority to use water to assist the minnow when this might affect delivery of water under contract to existing users.
The case was effectively settled in favor of the conservationists in 2003. The United States Court of Appeals for the Tenth Circuit stated that provision of water for fish and wildlife is a beneficial use of the water resources, and the Bureau of Reclamation could and should act to assist the minnow. This was confirmed, with reservations about the water that could be used, by the U.S. Congress in "minnow riders" to the Water Development Appropriations Act of 2004. Arguments dragged on over details of the way in which the Bureau of Reclamation was obliged to consult with the Fish and Wildlife Service. The case was finally settled in 2010. However, some issues concerning water allocation and ownership of properties remain open.
Background
Irrigation works The Rio Grande slows down and broadens as it runs through the relatively flat land of the Albuquerque Basin. It has cut itself a shallow valley in the semi-arid country that lies on both sides. Irrigation has been practiced in this valley for at least 1,000 years. With encouragement from the Federal government, levels of irrigation rose to a peak in the 1880s. However, irrigation and felling of trees upstream in Colorado added silt to the river that was deposited when the current slowed to the north of Albuquerque. The river bed rose. Fields turned into saline marshes. Floods became more common and more severe.
The Middle Rio Grande Conservancy District was created in 1925 to deal with the problems. It built many miles of new irrigation canals and drains, the El Vado storage dam, four diversion dams to feed water into the canals, and levees to guard against flooding. The Conservancy ran out of money in the 1940s and asked the Federal government for help. The Middle Rio Grande Project was approved in May 1950. The Bureau of Reclamation and the Corps of Engineers rehabilitated the dams and built the new Cochiti Storage Dam, completed in 1975. The Bureau of Reclamation undertook extensive work on the river channel, straightening and strengthening the banks and clearing the floodway. The San Juan–Chama Project, completed in 1976, diverted additional water from the Colorado River basin into the Rio Grande basin.
Silvery minnow and willow flycatcher
The Rio Grande silvery minnow used to be one of the most common fish in the Rio Grande, but due to the irrigation works its numbers started declining dramatically. The diversion dams divide its habitat into four separate segments. Although the river spreads out above the dams, below them it cuts deep channels between islands of sediment. During peak irrigation periods, particularly in dry years, these channels may dry up and confine the fish to any pools that remain. The minnows spawn during spring run-off conditions: large volumes of fast-moving water. The dams and other works reduce the intensity of spring run-off. As summer progresses, by diverting water for irrigation or city use the dams cause stretches of the river to dry up in the San Acacia Reach from the San Acacia Diversion Dam downstream for to the Elephant Butte Reservoir. Most surviving silvery minnows are found in this reach.
The silvery minnow was classified as endangered in 1994. The minnow had been reduced to 5% of its former habitat when it was listed. In 1996 a period of drought began that was to last for several years. That year, all the river water was diverted at San Acacia. Many of the surviving minnows died. Lowering the water tables and controlling floods has also had a drastic effect on the riparian zone, which had plants and wildlife adapted to wetter conditions and periodic flooding. Invasive species such as Russian olive that are adapted to the drier, more stable environment began choking out native trees and plants. The southwestern willow flycatcher breeds in dense riparian habitats along rivers, streams, or other wetlands, including the Rio Grande near San Marcial. It was placed on the federal Endangered Species list in 1995.
Under the Endangered Species Act, the minnow became protected when it was listed in 1994, and the flycatcher became protected in 1995. Each Federal agency must "insure that any action authorized, funded, or carried out by such agency, is not likely to jeopardize the continued existence of any endangered species or threatened species." The agency must consult with the United States Fish and Wildlife Service, which will formulate a Biological Opinion on the effect of the agency's action on the survival of the species or on critical habitat. This applies to "actions in which there is discretionary Federal involvement or control." Where practical, the Biological Opinion must define Reasonable and Prudent Alternative actions to avoid jeopardizing the endangered species.
Litigation
Initial case
In 1999 a stretch of the Rio Grande was designated a critical habitat for the silvery minnow by the Secretary of the Interior. This habitat extended from Cochiti Dam to the north of Albuquerque down to Elephant Butte Reservoir in the south. The Fish and Wildlife Service received a court order to accept the Department of Interior's Rio Grande silvery minnow Recovery Plan and to conduct an Environmental Impact Statement for this stretch of the river. The critical habitat designation was challenged in court by the Middle Rio Grande Conservation District, but was upheld on appeal.
The Defenders of Wildlife, Forest Guardians, National Audubon Society, Sierra Club, and other environmental organizations filed suit in 1999 on behalf of the Rio Grande silvery minnow (Hybognathus amarus) and the Southwestern willow flycatcher (Empisonax trailii extimus) against the Bureau of Reclamation and the Corps of Engineers for failure to fully consult with the Fish and Wildlife Service. The environmental groups made the case that the Bureau of Reclamation and the Corps of Engineers had "significant discretion over virtually all aspects of their funding and operation of the Project, and therefore they must consult with the Fish and Wildlife Service on all of these actions."
Several users of the water intervened, including the State of New Mexico and the Middle Rio Grande Conservancy District. It emerged in the hearings that the Middle Rio Grande Conservancy District had been using 11.36 cubic feet of water for each square foot of irrigated land. The Fish and Wildlife Service issued their first Biological Opinion on 29 June 2001. The Environmental groups filed a second amended complaint in which they contested the validity of the Biological Opinion while repeating their claim that the Bureau of Reclamation and Corps of Engineers had not consulted with the Fish and Wildlife Service to the fullest extent of their discretionary authority. The district court affirmed the 2001 Biological Opinion on 19 April 2002, but left the remaining claims to be resolved later. The Corps of Engineers was held to not have discretion over use of water. However, the court found that the Bureau of Reclamation had discretion over its actions, so the Endangered Species Act required it to consult with the Fish and Wildlife Service. The intervenors and the federal agencies appealed this decision.
Biological opinions
In 2002 the State of New Mexico and the United States agreed to avert an emergency by allocating up to of water as a Conservation Pool for species use, to be held in the Abiquiu and Jemez Canyon reservoirs. The Environmental Groups sought an emergency injunction on 4 September 2002, alleging that the Minnow was being endangered by a drought year. They asked that the court order the federal agencies to release the water needed to meet the flow requirements defined in the 2001 Biological Opinion. On 12 September 2002 the Fish and Wildlife Service issued a new biological opinion which agreed that the Bureau of Reclamation operations probably jeopardized the minnow, but said there was no "Reasonable and Prudent Alternative". On 19 September 2002 the Environmental groups filed another complaint that challenged the 2001 and 2002 Biological Opinions, asked for a legally adequate biological opinion to be prepared and asked that the Federal Agencies "take all steps within their discretionary authority necessary to conserve" the Minnow.
On 23 September 2002 the district court issued a Memorandum Opinion that took both the Bureau of Reclamation and Fish and Wildlife Service to task and said the 2002 Biological Opinion was arbitrary and capricious. The opinion recommended storing water upstream rather than releasing water. The court noted that "one does not quench thirst by withholding water". The court concluded that the Bureau of Reclamation was empowered to restrict the amount of water diverted for irrigation purposes and to release the resulting supply of water to the minnow's environment. The defendants appealed this decision.
On 16 March 2003 the Fish and Wildlife Service issued yet another Biological Opinion. In this Biological Opinion the Fish and Wildlife Service concluded that proposed actions by the Bureau of Reclamation and Corps of Engineers, whether or not they were discretionary, would probably jeopardize the continued existence of the Minnow. The Fish and Wildlife Service defined Reasonable and Prudent Alternatives "based on biological needs of the species, independent of sources of water and discretionary authority." The Bureau of Reclamation presented two proposals for avoiding jeopardy to the minnow. The first assumed that the Bureau of Reclamation did not have the discretion to limit contracted deliveries of water so as to benefit the minnow, but proposed to lease water from willing lessors to enhance river flows as needed. The second assumed it did have discretion, and proposed to spread the shortages between the users.
First appeals
The Tenth Circuit Court of Appeals heard appeals against the district court decision in April 2003, releasing its ruling on 12 June 2003.