WildEarth Guardians files notices of intent to sue over management of the Middle Rio Grande

Group claims an ad hoc water management scheme and diversions that prevent peak streamflows jeopardize the survival of endangered species in the Middle Rio Grande.

So far this year, WildEarth Guardians has filed notices of intent to sue against the U.S. Bureau of Reclamation (Reclamation), U.S. Fish and Wildlife Service (USFWS), U.S. Army Corps of Engineers (USACE) and the State of Colorado alleging violations of the federal Endangered Species Act (ESA).

At issue is whether the Rio Grande is appropriately managed to support the survival and recovery of the Rio Grande silvery minnow and the Southwest willow flycatcher.  WildEarth Guardians claims that the federal agencies “current ad hoc water management scheme threatens the survival of endangered species in violation of the Endangered Species Act,” with the primary argument the drying of 37 miles of the river last year. The notices allow the agencies 60 days to remedy the complaint before the group proceeds with filing a lawsuit.

“The plan of the past decade has failed to provide an ecologically sound alternative to remedy the impacts of a diverted, dammed and depleted river,” said Jen Pelz, Wild Rivers Program Director at WildEarth Guardians. “A new bold plan and leadership on the part of the federal agencies to secure flows for the river and its growing list of imperiled species remains necessary for the Rio Grande to survive into the future.”

Colorado is on notice because WildEarth Guardians claims that the state’s management and distribution of the Rio Grande before it reaches the New Mexico border places a significant role in limiting peak flows that are critical for the silvery minnow.

The silvery minnow was first listed as endangered in 1994 without specification by the Department of Interior on designation of a critical habitat for the fish.  An early biological assessment (BA) concluded that federal agencies had almost no discretion to control river operations, prompting environmental groups to sue Reclamation and USACE for failing to comply with provisions of the federal ESA.  In 2001, the federal agencies and the State of New Mexico reached an agreement over protection of the silvery minnow, and a federal judge ruled that Reclamation did indeed have the authority to control river operations to benefit the silvery minnow.  Another BA was completed in 2003 that declared 157 miles of the Middle Rio Grande, including a 300-foot riparian zone on each side of the river and any levees bounding the river, as critical habitat for the silvery minnow and examined the impact of certain federal and non-federal actions on the protected species.

In February 2013, Reclamation and USFWS began discussions aimed at establishing a new water management plan to benefit the silvery minor and the Southwest willow flycatcher, but have not released a new plan.

With preliminary February forecasts of the 2014 Middle Rio Grande flows at the Otowi Bridge indicating conditions at 50% of average, WildEarth Guardians believes it is imperative to have a comprehensive water management strategy in place.  They are advocating for a federal water acquisition program that would allow Reclamation to compensate irrigators for foregoing diversions and leaving the water in the river.

While there is not a direct Middle Rio Grande leasing program in place, Reclamation does operate a lease-and-exchange program that ultimately has Middle Rio Grande water right holders leaving native flows in the river.  Under this program, Reclamation leases water from San Juan-Chama Project contractors and provides it to Middle Rio Grande water right holders in lieu of diverting native Middle Rio Grande flows.

Written by Marta Weismann