Monthly Archives: January 2014

Is Colorado violating the Endangered Species Act?

Water issues on the Rio Grande just got more interesting.  The environmental group WildEarth Guardians recently gave Notice of its intent to sue the State of Colorado for violating the Endangered Species Act.  Guardians alleges that Colorado is violating ESA section 9, which makes it illegal for any person to “take”–basically, kill or harm–an animal protected by the ESA.  The key species involved here is the Rio Grande silvery minnow, the last wild population of which lives in the Rio Grande in central New Mexico.

Guardians argues this:  silvery minnows need certain flows in the Rio Grande, especially high flows in the spring, to survive and reproduce.  But flows in the river have been inadequate for the minnow in recent years, largely because water uses within Colorado take too much water out of the river, especially in dry years.  The letter alleges that Colorado water uses (for San Luis Valley irrigation) have taken as much as 98 percent of the natural flows of the Rio Grande at any given time, and the resulting low flows have taken silvery minnows.  And because the State of Colorado administers water rights under state law, the State is responsible for that take, violating the ESA.

This would be an unusual case, but not a unique one.  Most ESA cases involving harm to protected species are brought against federal agencies, under a different part of the law applicable only to them.  There have been some similar cases to this one, however, where courts have held that state or local governments caused take.  Notably, a federal court in Texas recently found that inadequate water management by the State of Texas took endangered whooping cranes by drying out their winter habitat.  (That decision has been stayed and is now on appeal; watch this space for further developments.)  These cases establish that state governments may violate section 9 if they allow private activities that result in take.

That said, this case would not be a slam dunk–more like a contested 3-pointer.  Guardians would have to overcome serious factual and legal challenges to prevail against Colorado.   On the facts, they would have to show that water use activities within Colorado caused actual harm to actual minnows miles downstream in New Mexico.  As to the law, they would have to show that Colorado has enough power or control over those water uses to make the State (rather than the users themselves) responsible for any take they cause.   Guardians could expect a fierce battle on both points.

Colorado is likely to raise another argument:  that its water uses are fully legal under the Rio Grande Compact, a Congressionally-approved interstate agreement that allocates Rio Grande water among the States of Colorado, New Mexico, and Texas.  Such compacts impose obligations on states that are enforceable in the Supreme Court.  Compacts can limit water uses in an upstream state, even if those uses would be legal under the laws of that state.  But can the ESA limit water uses in the same way, even if those uses would be legal under a compact?  A case against Colorado may answer that question … or it may not.  If Guardians can’t show that Colorado violated the ESA, there is no conflict with the Rio Grande Compact, and no need to decide if one trumps the other.  Colorado’s uses under the Compact would be safe; the minnow might not be so fortunate.

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Rivers and RIPs: Recovery? Really?

If you give a rip about western rivers and their native fish and wildlife, you should know the term RIP.  By that I do not mean Rest In Peace–although that too has relevance, given how many of the West’s native fish species have been extirpated from all or many of the streams they once inhabited.  Instead I mean Recovery Implementation Programs, which have a stated goal of recovering species protected by the Endangered Species Act.  These RIPs have become a preferred approach to ESA compliance for river-dependent species, at least in the Interior West.

So you know a little about the ESA but don’t know what a RIP is?  No surprise, given that you won’t find any mention of RIPs in the ESA itself or even its implementing regulations.  The only place you will find RIPs, in fact, is in western river systems where water management and use cause problems for threatened or endangered species (mostly fish and birds).  The oldest of the established programs, on the Upper Colorado, dates back to the 1980s; later ones appeared on the San Juan (1990s) and the Platte (2000s).  The newest RIP, on the Middle Rio Grande, is still on the launch pad and faces some potentially crucial uncertainties.

In very general terms, all of these RIPs provide for ongoing water management, use, and development, but also for certain benefits for the target species and their habitat.  They all involve shared governance involving federal agency representatives, state officials, and certain stakeholders.  Essentially, the participating entities agree on a plan of action that includes a variety of measures relating to the species (often relying on adaptive management);  if that plan continues to be implemented, the U.S. Fish & Wildlife Service will deem that water use and development activities under the RIP are complying with the ESA.   (This is an oversimplification of a somewhat diverse group of complicated programs; for more information see a long article I published last year called  Avoiding Jeopardy, Without the Questions,  RIPpiece .)

Why have RIPs become such a popular form of ESA compliance on (interior) western rivers?  I would offer three primary reasons.  First, they provide a much greater role for states and stakeholders than the usual approach to ESA compliance for actions involving federal agencies.  Second, they are not terribly expensive, and the federal government supplies most of the money.  Third, and most importantly, they have kept the ESA from seriously disrupting water management, use, and development in the river basins where they have become established–partly by keeping ESA issues out of court.  These are the major reasons why the Upper Colorado and San Juan programs attracted bipartisan (!) support in the last Congress; even ESA-bashers supported them.

So what’s not to like?  My overarching concern about these programs is that their success is demonstrated primarily in legal and political terms, not biological terms.  In other words, as I see it, RIPs have become popular because they give western states, water users, and management agencies greater control and certainty in implementing the ESA, with modest impacts on water management.  They have not become popular by being wildly successful in recovering species or restoring their habitats.  The Upper Colorado program, for example, started working a quarter century ago to bring back three endangered fish species; today all three remain endangered, and a fourth has been listed.  This is not to say that the RIPs have not delivered real benefits for the species, or that they are bad policy.  But remember, these programs are also set up to protect the water resources status quo, which may be highly detrimental to river-dependent species.  Without meaningful changes in water allocation, infrastructure, or management, recovery seems a lofty goal indeed.

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