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Posted on 09/25/2002 9:20:07 AM PDT by CedarDave
Parker Ruling Puts Minnow Before PeopleNow, it's official. The Rio Grande silvery minnow is entitled to all the water it needs from the Rio Grande -- both native flow used by the Middle Rio Grande Conservancy District and imported San Juan-Chama Project water bought and paid for by contractors including the city of Albuquerque. What's left over will be divided among those entitled to it on a pro rata reduced delivery. The conservancy district, Albuquerque, the federal government and the state all will likely appeal.
Substituting his judgment for that of the U.S. Fish and Wildlife Service, U.S. District Judge James Parker declared "arbitrary and capricious" a biological opinion that found conserving the remaining water now in storage for use next year was the most prudent course. While expropriating more water to keep the river wet for the minnows the remainder of this year might make sense from a species preservation standpoint, it narrows options for species preservation in the future if things stay dry.
It must be noted that this ruling was only on an emergency temporary order; the facts leading up to it will be argued all over again and in greater detail in a trial yet to come on the merits. But, the impact, barring a stay by an appellate court, is daunting.
It was a major departure from existing law on endangered species preservation in two important respects. First, lawyers said it the first time any judge had ordered for species preservation the use of water that doesn't belong to a federal agency. All water released for the minnow heretofore has been bought from a willing seller.
Second, lawyers said it is the first time any judge has ordered an affirmative action by a federal agency to preserve a species. Orders heretofore have been to stop contemplated actions.
Parker's ruling will reverberate throughout Western states. Wherever the Bureau of Reclamation has a hand on a control gate, the water -- regardless of who it belongs to -- must go first to any endangered species downstream, then to humans, under Parker's rationale.
Details of Parker's ruling will emerge when his written order is entered. But in his ruling from the bench, he confined the pain to New Mexico -- though the waters of the Rio Grande are used upstream in Colorado and downstream in Texas. Parker in his verbal ruling made no exception to the pro rata depletion of the water to New Mexico users. Consequently, the middle Rio Grande pueblos, currently not parties to the lawsuit, stand to lose their fair share of their prior and paramount water rights along with non-Indian farmers and municipalities. It would be unfair to have it otherwise. If humans really are to be subordinate to the needs of a fish, then all humans should get equal second priority status.
The most ironic aspect of Parker's ruling is that if the Fish and Wildlife experts are correct in their analysis, ordering the release of water to keep the river wet the balance of this year could prove to be a death sentence for the fish because there won't be enough water anywhere to keep the river wet next year if the drought pattern of recent years is repeated. The San Juan-Chama Project diverted a mere 6,000 acre-feet of water from Colorado this year to offset the more than 90,000 it delivered to contract buyers. It has but 158,000 acre-feet remaining in storage.
Attorney Charles DuMars, arguing on behalf of conservancy district irrigators, pointed out the obvious. Noting that environmentalists say that release of water for the minnows in 2000 was what kept them from going extinct then, DuMars tallied the cost. More than 160,000 acre-feet of San Juan-Chama imported water was released for minnow habitat. In addition, the conservancy district released 180,000 acre-feet of water from its El Vado Reservoir on the Rio Chama. A total of 340,000 acre-feet of stored water went down the Rio to augment low natural flow that year.
"Heron (Lake), even if we took every drop, does not contain enough to replicate 2000," DuMars said. And, because the Rio Grande Compact forbids storage of native water in New Mexico until combined storage at Elephant Butte and Caballo reservoirs again goes above 400,000 acre-feet, there will be no storage in El Vado next spring other than a small amount for the middle Rio Grande pueblos.
"The Rio Grande Compact has taken away our reservoirs," DuMars said.
Just as the Endangered Species Act, under Judge Parker's interpretation, is poised to take away our imported San Juan-Chama Project water.
Parker is obliged to rule on the law as he interprets it. His judgment will be second-guessed up the line on appeal. The appeal should attract amicus briefs from every state in Bureau of Reclamation territory, since it has the practical effect of putting their water supplies at risk.
Notwithstanding the legal proceedings, Congress should revisit the issue. It should consider whether it intended the Endangered Species Act to put human society at risk, whether it intended the ESA to be capable of breaking the word of the federal government on water purchased from federal reclamation projects.
If water year 2002 repeats in 2003, the Rio Grande will go dry. Not even a federal judge can create water where none exists.
All content copyright © ABQJournal.com and Albuquerque Journal
(I added western US states with BOR facilities to the topics list)
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OPINION, September 9, 2002All content copyright © ABQJournal.com and Albuquerque JournalEnough Is Enough, Fix or Junk Species Law
Not long ago, the city of Albuquerque had more than 210,000 acre feet of San Juan-Chama Project water in storage around the state. Today, only 20,000 acre feet remain. Mayor Martin Chávez has told the Bureau of Reclamation it can't have it for the silvery minnow.
The city of Santa Fe also has a smaller amount of San Juan-Chama water in upstream storage. For The City Different, the threat is much more immediate. If Santa Fe loses its stored water, it could lose the legal right to store runoff in its mountain reservoirs next spring -- meaning some 40 percent of its municipal water supply is in jeopardy.
Environmentalists will be in the courtroom of U.S. District Court Judge James Parker this morning, seeking an order to expropriate the Albuquerque and Santa Fe water, plus whatever is needed of the San Juan-Chama Project's remaining reserve supply, some 159,000 acre feet under Reclamation's control, stored in Heron Reservoir, southwest of Chama.
Water, the precious resource on which life depends, is in short supply. And, partly because of profligate releases for habitat enhancement for the silvery minnow over the last three years, it's in critically short supply.
The environmentalists make clear that they rank the needs of the minnow above human uses. The widespread system of Rio Grande dams and flood control facilities built over the last 60 years to husband the resource and protect lives and property must, in their view, henceforth be operated to keep a stretch of the river wet -- until the water runs out, that is. And that is likely just around the corner.
Albuquerque's San Juan-Chama water, for which city taxpayers have paid more than $45 million since the early 1970s, will not be an assured supply if Albuquerque's claim on it is perpetually secondary to the minnow's.
The San Juan-Chama project stored water that is coveted to keep the river wet for another two months will not soon be replaced. The project delivered more than 80,000 acre feet to users this year -- but only about 6,000 acre feet to replenish the supply came through from drought-stricken Colorado.
The Rio Grande Compact prohibits storage of native Rio Grande water in New Mexico -- such as in Santa Fe's municipal reservoirs -- when storage in Elephant Butte falls below 400,000 acre feet, as it did this summer. State Engineer Tom Turney hoped to get around that by releasing non-native water (the San Juan-Chama water, "imported" from the Colorado River basin, which is not subject to the Rio Grande Compact).
The legal attempt to seize the imported water places the situation at a crossroad. Judge Parker's earlier ruling that the Bureau of Reclamation can and must use all water within its control for minnow needs set the stage. That decision is on appeal to the 10th Circuit Court of Appeals and almost certainly will go all the way to the U.S. Supreme Court. Turney late Friday filed court documents seeking an emergency order from the 10th Circuit to prevent the release of the water.
But the appeal process could take years. The economy of Santa Fe and the Rio Grande Valley could be decimated in the meantime if the arbitrary dumping of water squanders what little is left and the drought continues.
The congressional delegations of the western Reclamation states should collaborate on bipartisan legislation to exempt the operation of federal water projects from the Endangered Species Act. New Mexico's experience with the silvery minnow makes clear that the Endangered Species Act is fatally flawed. Congress should fix it -- or junk it.
I wonder how much these enviromental groups spend on litigation when the money could go to projects that actually help animals.
September 24, 2002State Appeals Judge's Minnow Decision
The Associated Press
SANTA FE — Saying that water for people can't be put at risk, the state of New Mexico on Tuesday appealed a federal judge's decision to release reservoir water for the endangered silvery minnow in the drying Rio Grande.
State Attorney General Patricia Madrid filed the appeal in Santa Fe, asking the 10th U.S. Circuit Court of Appeals in Denver to reverse last week's ruling.
"It is intolerable that our farmers and the residents of the middle Rio Grande Valley should have the water they own and need for their survival put at risk by" U.S. District Judge James Parker's decision Sept. 18, she said.
The state has been wracked by drought, and "the possibility that the same problems will face us next year exists," she said.
"If the water from Heron (Reservoir) is released for the fish, we may lose a reserve that could be even more critical to us next year," Madrid said.
State Engineer Tom Turney says most of the water in northern New Mexico reservoirs is owned by Albuquerque, Santa Fe and irrigation districts. He argues there's not enough water in reserve and that a program to raise minnows in captivity will ensure the species' survival.
Last week, Parker ordered flows in the Rio Grande to continue to the San Acacia Reach, where the largest surviving wild population of the minnow exists.
Parker said the U.S. Fish and Wildlife Service and the U.S. Bureau of Reclamation failed to adequately consider water from Heron Reservoir to help the tiny fish.
The agencies proposed an "arbitrary and capricious" plan that failed to fully consider alternative water sources, he said.
The Fish and Wildlife Service's biological plan for protecting the Rio Grande silvery minnow was flawed, the judge said, because it overlooked water supplies stored upstream at Heron Reservoir.
The Sept. 12 biological opinion said the fish was in jeopardy, but there was no alternative for water this year and that water should be saved for next year when drought conditions could be worse.
Environmentalists, who lauded Parker's decision, on Tuesday called for a long-term, cooperative plan for the river and the minnow.
"The issue of the silvery minnow is much broader than the minnow itself," said Kara Gillon, wildlife counsel for Defenders of Wildlife.
"The silvery minnow is representative of the health of the entire Rio Grande. The minnow is an endangered species because the river is endangered," she said.
John Horning, executive director of Forest Guardians, said, "Unless the community supports such things as voluntary water leasing, better water management, bosque restoration and conservation for the river, there's a very real danger of losing both the minnow and the rio itself."
The ruling affected water Albuquerque has stored in Heron Lake from the San Juan-Chama project, which diverts water to the Rio Grande basin from southern Colorado.
Could be. From Judge Parker's opinion:
The agencies proposed an "arbitrary and capricious" plan that failed to fully consider alternative water sources, he said.
All of it. Environazis are not for animals or the envirnment. They are against humans. An inportant distinction to remember
God Save America (Please)
As I've said on other posts, I don't believe the minnow (as a species) die off in times of drought. In my work as a groundwater geologist, I have seen minnows in shallow ephemeral pools (formed by groundwater discharge at the surface) in otherwise dry arroyos over a mile from the nearest permanent surface water source. I was amazed by the sight, because as the groundwater levels rise and fall, the pools form and evaporate. Something was letting them survive and reproduce (maybe eggs laid in moist mud that hatch when underwater again??). I don't have the answer, but am convinced the science is there to figure it out (if they really wanted to) and that this is all a big scam by the enviromentalists and their lawyer friends.
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