Federal Appeals Court Rules on Middle Rio Grande, Minnow Issues - Prior Expansive Pro-ESA Rulings Voided

On April 21st, the U.S. Court of Appeals for the Tenth Circuit finally issued its ruling involving a crucial issue for Endangered Species Act (ESA) "consultations" on federal water project operations, and federal agency activities in general.

Starting way back in 1999, several environmental groups, including the Sierra Club, had filed suit claiming that the federal agencies had “significant discretion over virtually all aspects of their funding and operation” of the Middle Rio Grande Project of water management and flood control structures from Cochiti Dam to Elephant Butte Reservoir. The issue of agency “discretion” is a vital one, since an ESA regulation says that the ESA only requires a federal agency to “consult”— to seek an official opinion from the U.S. Fish and Wildlife Service (FWS) on impacts to endangered species—when its actions involve “discretionary Federal involvement or control” (50 CFR § 402.03).

In 2002, a federal court ruled that the agencies had “discretion to consult with FWS about limiting or reducing contract deliveries under the SJCP (the San Juan-Chama Project, for City of Albuquerque water) and the MRGP (Middle Rio Grande Project, providing water to farmers).” In other words, the agencies could be required to curtail municipal and agricultural water diversions, if this was necessary to help prevent the extinction of the endangered Rio Grande silvery minnow. Even after a new 2003 FWS Biological Opinion provided more protections, the court said in 2005 that the issue was so important that this 2002 ruling would stay in effect.

Now, the Tenth Circuit has ruled that the 2003 BiOp “mooted” environmental claims on the issue of agency discretion, so that the 2002 District Court ruling has been “vacated” and is of no legal effect whatsoever. If the issue arises in the future, a rule for the middle Rio Grande would need to be argued and established on a blank slate.