Middle Rio Grande ESA and other Environmental Issues
Endangered Species Act (ESA) compliance for New Mexicans in the Middle Rio Grande
In 1994 the Rio Grande silvery minnow was listed as endangered and the Southwestern Willow Flycatcher was listed in 1995. Litigation followed these listings over alleged ESA and National Environmental Policy Act violations (Minnow v. Keys, 1999). A biological opinion was issued by the U.S. Fish and Wildlife Service in 2000 as mandated by the court, which was amended/revised in 2001 and again in 2003. The 2003 biological opinion that was issued with a 10-year duration provided some limited flexibility in ESA water operations depending on hydrologic conditions in the basin. The biological opinion provides a Reasonable and Prudent Alternative (RPA) and other measures that are expected to keep the species from further decline in its status and assist in its recovery.
The State of New Mexico through the Attorney General intervened in Minnow v. Keys and as such was able to contribute to the negotiations that eventually lead to the 10-year biological opinion for MRG water operations. The State of New Mexico did so to protect the water rights of its citizens and ensure that Rio Grande Compact obligations were not impaired. The Middle Rio Grande Conservancy District was also an intervener in the lawsuit.
Compliance with ESA is necessary so that MRG water users can continue their daily activities and be economically viable without the undue burden of individually addressing ESA compliance. The State of New Mexico has worked closely with the federal water management agencies and the Service to ensure that broad coverage is afforded the water users in the state. A new biological opinion is in the process of being formulated that provides additional flexibility in water management based on sound scientific adaptive management principles. The NMISC continues to advocate on behalf of New Mexico water users in ESA issues.
Middle Rio Grande Endangered Species Act Collaborative Program
The Middle Rio Grande Endangered Species Act Collaborative Program (MRGESCP) was organized to protect and improve the status of the endangered species present in the Middle Rio Grande (MRG) while simultaneously protecting existing and future regional water uses. As directed by Congress, the Secretary of the Interior established an Executive Committee in 2004. The Committee sets goals, priorities, and assists the federal agencies with decisions on budget allocations. There are 16 members currently signed on to the MRGESCP Executive Committee: the US Bureau of Reclamation, US Fish and Wildlife Service, the US Army Corps of Engineers, Albuquerque Bernalillo County Water Utility Authority, Assessment Payers Association of the MRGCD, Bureau of Indian Affairs, City of Albuquerque, Middle Rio Grande Conservancy District (MRGCD)New Mexico Attorney General's Office, NM Department of Agriculture, NM Department of Game and Fish, NM Interstate Stream Commission, Pueblo of Isleta, Pueblo of Sandia, Pueblo of Santa Ana,
Santo Domingo Tribe, and the University of New Mexico.
Program activities generally include water acquisition and management, habitat restoration, endangered species science and monitoring, and silvery minnow propagation.
MRG Recovery Program
In 2009, the Collaborative Program began a transition to a Recovery Program that will improve the status of the species and provide greater regulatory certainty for its members. The Recovery Implementation Program will include actions that promote the recovery of the MRG endangered species. The State is taking a leadership role in the establishment of the Recovery Program. Draft documents of the program organization structure and governance, the long-term plan, and the 5-year action plan have been approved in 2013 by the Executive Committee of the Collaborative Program. With a new biological opinion in place for MRG water operations expected in 2015, the MRG Recovery Program should be established formally soon after. The U.S. Fish and Wildlife Recovery Plans (link?) will be used to guide activities of the MRG Recovery Program.
Drought Water Management Planning
The New Mexico Interstate Stream Commission has urged that the Collaborative Program develop a MRG Drought Management Plan that will be used to provide viable options to alleviate conflicts between water users and species needs, including ESA compliance during extended periods of drought. At these times, alternative actions must be taken quickly to ensure that the gains of previous efforts are not lost. Such options may include changes in the priorities for funding, water management, and species management and monitoring.
Water Management Actions
In 2001, the State entered into an agreement with the United States to lease stored water, termed “Compact Management Water” over a three-year period for endangered species purposes. It did so after applying for and securing a permit from the New Mexico Office of the State Engineer. A total of 58,814 acre-feet was stored all in 2001 and released during 2001 and 2002 to meet flow requirements. At the time, New Mexico had a very large Accrued Credit in Elephant Butte Reservoir, on the order of 270,000 acre-feet. The water was only stored at times when the flow in the Rio Grande was in excess of all downstream diversion demands.
The NMISC entered into agreement with the United States, in 2003 to provide stored water to meet both 2003 Biological Opinion’ flow targets and Middle Rio Grande Conservancy District irrigation demand. . At that time, Article VII of the Rio Grande Compact was in effect. That meant native Rio Grande water could not be stored upstream of Elephant Butte Reservoir unless made possible through a relinquishment of New Mexico Accrued Credit Water in Elephant Butte Reservoir to Texas. New Mexico and Texas negotiated and agreed on relinquishments in 2003, 2008 and 2010 that have made 296,500 acre-feet of water available for storage and release to meet middle valley demands to date, New Mexico made the water available to be stored and released subject to a number of conditions. To date, the NMISC has leased 91,000 AF of water to Reclamation to be used to meet requirements of the 2003 Biological Opinion and provided 191,000 acre-feet to the MRGCD. That stored water, directly and indirectly, has played a large role in keeping portions of the river wet in the MRG through the extended drought.
The Strategic Water Reserve statute was enacted by the New Mexico Legislature in 2005. The Reserve Statute allows the NMISC to acquire water rights either to assist the state and water users in complying with interstate stream compacts, or to assist the state and water users in water management efforts for the benefit of threatened or endangered, aquatic or riparian obligate species. In the Middle Rio Grande the NMISC has leased approximately 950 acre-feet of water rights into the Reserve to offset depletions associated with changes in reservoir operations that benefit the species and to offset increased depletions that result from habitat restoration projects and NMISC uses the rights for State-sponsored restoration projects up and down the Middle Rio Grande, and also in exchange for other commitments by US Army Corps of Engineers and is planning to use them and more for planned Recovery Program projects. The NMISC also is applying to the OSE to transfer an additional 154 acre-feet of water rights into the Reserve from the Bureau of Reclamation.