Enviro group threatens lawsuit if Colo. does not increase Rio Grande flows to N.M. Scott Streater, E&E reporter Published: Wednesday, January 22, 2014 An environmental group has notified Colorado officials that it plans to file a federal lawsuit against the state if it does not increase the volume of water it sends down the Rio Grande to New Mexico, claiming low water flows are harming two endangered species downstream. WildEarth Guardians this week sent a 60-day notice of intent to sue to Mike King, executive director of the Colorado Department of Natural Resources, and others, arguing that the result of the states policy of diverting much of the Rio Grande instead of allowing the river to flow into New Mexico is harming the endangered Rio Grande silvery minnow and the Southwestern willow flycatcher that live downriver. In essence, the group claims that diverting much of the Rio Grande to irrigate crops in Colorados San Luis Valley during peak river flows in May constitutes a take of the two species, requiring the state to obtain a permit under the Endangered Species Act to harm or kill them. The notice was also sent to Interior Secretary Sally Jewell and Fish and Wildlife Service Director Dan Ashe. An estimated 65 percent of the native flows in the Rio Grande originate from snowmelt and runoff from the headwaters of the San Juan Mountains in Colorado, according to the groups 11-page notice. Thus Colorados management of the river flows plays a critical role in limiting the amount of water that is available to create a peak-flow in the spring of each year, according to the notice. Maintaining peak river flows during the spring months is critical to the silvery minnow, as the high waters and snowmelt trigger the minnow to spawn. WildEarth Guardians analyzed water flows at river gauges located upstream and downstream of diversions in the San Luis Valley and found that Colorado at times diverts up to 98 percent of the river flow to irrigation during the rivers peak flows, greatly affecting the minnows habitat in central New Mexico. It is difficult to create a winning hand in the game of restoration in the Rio Grande in New Mexico when Colorado is sitting on at least half the deck, said Jen Pelz, the director of WildEarth Guardians wild rivers program. Peak spring runoff no longer exists in the Rio Grande in central New Mexico in large part because of the consumption in the San Luis Valley authorized by the state of Colorado, Pelz added. The Rio Grande silvery minnow relies on those peak flows to reproduce, and we intend to hold the state of Colorado accountable for the harm it is causing to the species. Todd Hartman, a spokesman for the Colorado Natural Resources Department, said the state cannot comment on pending litigation. The notice of intent is the second from WildEarth Guardians in the past week involving water flows in the Middle Rio Grande and the impacts of low flows to the silvery minnow and Southwestern willow flycatcher, which is a small migratory bird. The group last week filed a notice of intent to sue the Army Corps of Engineers if the agency does not change operations at dams and reservoirs in the Middle Rio Grande in New Mexico to protect primarily the silvery minnows and other species (E&ENews PM, Jan. 14). WildEarth Guardians notice also said the Army Corps violated the ESA by walking away in late November from formal consultation with the Fish and Wildlife Service over impacts to the listed species. The Army Corps actions have interfered with the development of a new plan that the service, the Bureau of Reclamation and other water managers are working on to ensure adequate river flows in the Middle Rio Grande to sustain the silvery minnow and other species, according to the notice. As for the state of Colorado, it is obligated under the Rio Grande Compact of 1939 to provide a percentage of the water to the Colorado-New Mexico state line. However, even considering the State of Colorados obligations under the Compact, the State of Colorados obligation to not take listed endangered species is a completely separate obligation above and beyond any agreement between the states of New Mexico, Texas and Colorado, according to the notice of intent. Therefore, the State of Colorado cannot hide behind its compliance with the Compact as an excuse for not meeting its obligation to comply with the mandates of the ESA. WildEarth Guardians notice says the group plans to file a lawsuit under the citizen suit provision of ESA, which is designed to promote discussions among the parties to avoid litigation. We encourage the State of Colorado to seriously consider the concerns detailed in this notice and ask that you discuss the steps the State may take going forward to remedy these legal violations, the notice said.
Posted on: Sat, 25 Jan 2014 18:27:43 +0000
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