FWS Issues “No Jeopardy” Biological Opinion Covering Middle Rio Grande Water Management Activities

After four years of consultation, the U.S. Fish and Wildlife Service (“FWS”) released a new biological opinion (“BiOp”) concluding that the endangered Rio Grande silvery minnow, the endangered southwestern willow flycatcher, and the threatened yellow-billed cuckoo will not be jeopardized by water-related activities. The new BiOp, which was released in December 2016, replaces a 2003 BiOp that had expired in 2013, but was extended when water management agencies requested to reinitiate consultation.

The 2003 document was a “jeopardy” BiOp concluding that certain actions proposed by the U.S. Bureau of  Reclamation (“Reclamation”) and the U.S. Army Corps of Engineers (“USACE”) jeopardize the silvery minnow and the flycatcher by reducing or degrading habitat. The actions included non-discretionary activities like delivering specified volumes of contracted water. To offset the impacts on habitat, the 2003 BiOp established strict streamflow targets for certain locations. (For additional background on the 2003 opinion, see “Reclamation and Corps Release Final BA for Middle Rio Grande Operation,” Water Strategist February 2003).

The new BiOp has a “no jeopardy” conclusion—meaning FWS determined that the proposed activities will not jeopardize the silvery minnow, flycatcher, or cuckoo. FWS found the status of the flycatcher and the cuckoo to be stable. The difference in conclusions about the silvery minnow is driven by additional data and analysis and the inclusion of certain conservation commitments in the proposed actions. Extremely low silvery minnow numbers in 2013 led FWS to develop hydrobiological objectives in which they analyze and assess the relationship between silvery minnow density and flows. The objectives provide scientific information to guide water management decisions.

Based on 20 years of observations, FWS found that there are a few key conservation actions that are critical to silvery minnow survival: restoring river connectivity, restoring and enhancing habitat on a large scale, and conservation storage. To cover issues related to the lack of river connectivity, Reclamation will ensure fish passage at the Angostura, Isleta, and San Acacia diversion dams. Large-scale habitat restoration is addressed by several projects that Reclamation will implement. Reclamation, USACE, Albuquerque-Bernalillo County Water Utility Authority, and Middle Rio Grande Conservancy District (“MRGCD”) are working to develop a 30,000 AF to 60,000 AF conservation storage pool in Abiquiu Reservoir. In addition, Reclamation has submitted “River Integrated Operations” that include an adaptive management framework that allows for ongoing data collection, testing, and adjustment of water management strategies.

The silvery minnow was listed as endangered in 1994. FWS did not immediately designate critical habitat for the species, and conflict ensued among the state, local agencies, and agricultural interests over the steps needed to preserve the fish. In 1998, Reclamation began leasing water from San Juan-Chama Project contractors. The water was delivered to irrigators on the Middle Rio Grande who would then leave native flows instream. The environmental group, WildEarth Guardians filed the first lawsuit in 1999 claiming that Reclamation and USACE failed to comply with the federal Endangered Species Act (“ESA”). In 2000, Reclamation ordered MRGCD to release 1,200 AF—more water than the district had available for that summer—to maintain a streamflow target of 300 cfs. A legal opinion by Solicitor of the Department of the Interior on the matter held that under the 1951 repayment contract between MRGCD and Reclamation, MRGCD operates its river facilities as an agent of the federal government. This opinion directly contradicted a biological assessment that stated that federal agencies have no discretion over Middle Rio Grande operations. This matter led to further court action. Court rulings focused on the narrow facts of the case—like determining that the federal agencies do have the authority to control river operations to benefit the silvery minnow. The court proceedings, however, opened larger philosophical questions, like whether it is appropriate to order the use of water from one river basin (the Colorado) to conserve a species in another river basin (the Rio Grande). In early 2014, WildEarth Guardians filed notices of intent to sue against Reclamation, USACE, FWS, and the State of Colorado alleging violations of the ESA, and in summer 2014 moved forward with a lawsuit against Reclamation and USACE. A decision has not been rendered. (For an example of Reclamation’s San Juan-Chama lease-exchange program, see “Transactions,” Water Strategist May 2010. For more on the 2014 notices of intent to sue, see “WildEarth Guardians Files Notices of Intent to Sue over Management of the Middle Rio Grande,” Journal of Water February 2014. For additional background and issues related to the silvery minnow, Water Strategist July/August 2000, July/August 2001, May 2002, October 2002, February 2003, and July/August 2003).

Because the new BiOp was developed cooperatively and includes participation by various water management agencies, allowing them to commit to actions that will conserve the silvery minnow while still meeting local water demands, conflict is expected to subside. Other areas of the west that are facing the insurmountable challenge of balancing human water demands with environmental or wildlife needs may benefit from the flexibility of a similar approach.


Written by Marta L. Weismann