Mississippi-Alabama Sea Grant Legal Program

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Water for Endangered Silvery Minnow Considered a Beneficial Use

Rio Grande Silvery Minnow, et al. v. Keys, 333 F.3d 1109 (10th Cir. 2003).

Sarah Elizabeth Gardner, J.D.

Defenders of Wildlife and other environmental groups sued the Bureau of Reclamation, Department of the Interior, Fish and Wildlife Service, and Army Corps of Engineers under the Endangered Species Act for water diversions and storage facilities believed to jeopardize the endangered Rio Grande silvery minnow (minnow). The Tenth Circuit Court of Appeals held that the Bureau of Reclamation (Bureau) has the discretion to reduce contract deliveries and restrict diversions to meet Endangered Species Act (ESA) duties.1

Background Litigation
Listed as endangered by the Fish and Wildlife Service (FWS) in 1994, the recovery of the silvery minnow has been hampered by a lack of water. As with many of the Western rivers, the Rio Grande is fully appropriated, with farmers, cities, and species in competition for the valuable resource. The main conflict coalesces around the flow and allocation of the Rio Grande. How much water must be retained in the Rio Grande to protect the silvery minnow? Which sector should be required to “give up” its water to save the minnow? Should existing water contracts yield to new ESA requirements?

In 1999, the Secretary of the Interior designated 163 miles of the main stem of the Rio Grande as critical habitat for the minnow. Litigation immediately ensued and the federal agencies involved have struggled ever since to balance the existing water obligations in the region with the mandates of the ESA. Two major water projects operate in the region. In June 1963, the Secretary of the Interior entered into a contract with the City of Albuquerque to furnish and supplement its water supply for municipal, domestic, and industrial uses. A subsection of the contract provided for the furnishing of water for fish and wildlife benefits. The second project, the Middle Rio Grande Project (Project), was approved and operated for flood control and reclamation purposes in the 1920s - 1940s. The project flopped, but the U.S. agreed to rescue the project in the late 1940s and acquired all the Project’s obligations in exchange for all its property rights, water rights, and necessary easements, including an obligation to provide water for fish and wildlife.

Two biological opinions have been prepared relating to the effect of water quantity on the minnow and the Bureau and the Corps have been repeatedly chastised by the court for failing to properly consult with the FWS. The plaintiffs instituted the present lawsuit to challenge the Bureau’s activities with regard to both water projects and ensure that the required amount of water is delivered to those portions of the Rio Grande designated as critical habitat for the minnow.

Bureau’s Discretion to Allocate Water
The Bureau claimed that the existing water contracts defined its obligations under the ESA, and because the contracts failed to expressly permit a delivery reduction below the fixed amounts, it did not have the authority to reduce payments under its negotiated water contracts. The City of Albuquerque, who intervened in the lawsuit on behalf of the Bureau, claimed that the fixed repayment contracts cannot be made subservient to ESA compliance because they gave the City a “perpetual right” to use the project water. The State of New Mexico, an additional intervener, argued that the delivery of water for fish and wildlife purposes is not a beneficial use and that the loss of water to protect the silvery minnow resulted in irreparable harm to its citizens.
The Tenth Circuit looked to the contractual language to decide whether the contracts reserved discretion for the Bureau to comply with the ESA. Reading the contracts as a whole, the court held that the contracts established a repayment schedule, provided that in years of scarcity non-federal parties would share the available water, and expressly stated that the provision of water for fish and wildlife is a beneficial use of the water resources. The court determined that in the contract, the Bureau retained the discretion to determine the “available water” from which allocations would be made and the allotments that would be altered for “other causes,” which could include the prevention of jeopardy to an endangered species.2 Therefore, the Bureau had the discretion, for the purpose of preventing the extinction of the silvery minnow, to reduce contractual deliveries of available water.

The court ended its opinion by quoting the U.S. Supreme Court in its seminal case TVA v. Hill regarding the broad legislation enacted by Congress to protect endangered species which provide “keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask.”3 The court recognized that the minnow “provides a measure of the vitality of the Rio Grande ecosystem, a community that can thrive only when all of its myriad components – living and nonliving – are in balance.”4 The court then affirmed the district court’s decision that the Bureau has discretion to reduce deliveries of water under its contracts to comply with the ESA.

1. Rio Grande Silvery Minnow, et al. v. Keys, 333 F.3d 1109, 1114-1115 (10th Cir. 2003).
2. Id. at 1129.
3. Id. at 1138 (citing Tenn. Valley Auth. v. Hill, 437 U.S. 153, 177 (1978)).
4. Id.

Refugium Creates Habitat Conditions for Silvery Minnow

In the fall of 2001, construction began on a “Rio Grande Silvery Minnow Rearing and Breeding Facility” at the Albuquerque Biological Park. New Mexico Governor Bill Richardson joined City of Albuquerque Mayor Martin Chavez on June 27, 2003 for the ribbon cutting on the state-of-the-art refuge for the endangered silvery minnow.

The facility consists of a 50,000 gallon naturalized “refugium” along with a 3,500 square foot building with aquariums where the minnows will be artificially spawned and raised to supplement the refugium population. The refugium reconstructs the habitat thought to best foster minnows, consisting of a donut-shaped outdoor pond varying in depth from about 1 inch to 2 feet with pumps that control the current to mimic the natural flows of the Rio Grande. The bottom surface consists of sand, gravel, and silt. The area surrounding the pond includes boulders and cottonwood boughs which create natural cover and eddies.

The Refugium is funded by the New Mexico Interstate Stream Commission and managed by the City of Albuquerque in cooperation with the US Fish and Wildlife Service, New Mexico Game and Fish, the Interstate Stream Commission, and the Bureau of Reclamation.

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