Rio Grande Silvery Minnow Gets a Reprieve

©Tom Jervis

In September, judge James Parker ruled that the Bureau of Reclamation (BOR) had to keep portions of the Rio Grande wet for the Rio Grande silvery Minnow, even if that means releasing water from Heron Reservoir, something the BOR has refused to do. The action came after a coalition of environmental groups sued the BOR and the Fish and Wildlife Service over their management of the river and the fish. The immediate cause for the judge's action was a finding by the Fish and Wildlife Service that there was no reasonable and prudent alternative to letting the river dry up after irrigators prematurely used up their allotted water for the year.

A wet fall has resulted in an outcome that many hoped for but few expected. Despite a ruling staying Judge Parker's order, the Rio Grande did not dry up, and it appears that the Rio Grande Silvery Minnow will survive another crisis. The Tenth Circuit Court of Appeals will hear the case in January, and the minnow's future hangs in the balance. Regardless of the outcome of the appeal, the case is likely to go to the Supreme Court. The outcome is uncertain and it is possible that even if, or especially if, the courts uphold Judge Parker, Congress will decide to extirpate the Rio Grande Silvery Minnow.

Judge Parker was clearly annoyed that he was put in the position he was. Writing in his opinion, he carefully laid out the sequence of events that led to the situation and then wrote: "The actions and inactions of the BOR resulted in a crisis that was then thrust upon this Court a few days ago. This Court had to make very difficult choices with limited ESA (Endangered Species Act) options on an emergency basis. The Court believes this crisis situation could have been avoided if the Federal Defendants, especially the BOR, had properly performed their statutory duties."

The plaintiffs agree. It is plain to those who have followed the developments that there was an attempt to use the drought crisis as an excuse to extirpate the minnow from the Rio Grande--and avoid any blame. The Bush Administration, through the BOR, could have invoked a seldom-used provision of the ESA to request an exemption to the ESA in this case. Instead they chose not to, hoping to force the judge to play that role. The provision, often referred to as the "God-squad," would have put them in the position of having to publicly make a decision to save or to extinguish a species. Apparently for an Administration so committed to the sanctity of life, even that was too much to stomach-or perhaps it was considered too much a political liability. Although the God-squad has been invoked before, it has never chosen to extirpate a species.

The truly sad thing about all this is that it never had to happen. As the judge pointed out: "Hence, as early as the spring of this year, the BOR knew or should have known that it would be unable to meet the ... flow requirements for the remainder of the year. Likewise, as early as April 2002, the BOR knew or should have known that ... a jeopardy opinion without a reasonable and prudent alternative might result. Nonetheless, the BOR delayed ... consultation. But, during the four or five month interim, the BOR had already released from the upstream reservoirs and delivered nearly all of the 2002 contracted water." In other words, had the BOR practiced a little foresight, it could have stretched out the water it had and forestalled the crisis.

A great deal of misinformation has been bandied around in the press since judge Parker's ruling in the Rio Grande Silvery Minnow case on September 19, 2002. The truth of the matter is:

• The minnow and the Rio Grande are one in the same. The reason the silvery minnow is endangered is because the river itself is endangered. If we lose the minnow we are losing the Rio Grande and the bosque. The issue is whether we want a living river or a dead ditch.
• There are long-term solutions which can save the river and end the cycle of yearly conflicts over water. These include: more efficient water management, federal and state leadership, voluntary water leasing by farmers (forbearance) in time of drought, increasing both urban and agricultural water conservation, restoring river and bosque habitat, reestablishing the silvery minnow in multiple locations of its original Rio Grande habitat, and establishing a permanent endangered species conservation water pool. The Plaintiffs, in the silvery minnow case, offered these as a compromise. Albuquerque, the State, and the Bureau of Reclamation rejected the settlement offer.
• Judge Parker's ruling does not take Albuquerque's water. The water he designated for river use belongs to the federal government, not the City of Albuquerque. It is excess water delivered from the Colorado River not needed to make deliveries to San Juan-Chama contractors like Albuquerque.
• Judge Parker's ruling does not take water out of the mouths of Albuquerque's children. Even if the drought continues, there will be no effect on the water available for use by Albuquerque residents.
• Albuquerque does not have one of the best water conservation records in the southwest. It has one of the worst. Albuquerque uses 209 gallons per person per day. Santa Fe, El Paso, Tucson, and San Antonio use between 139-150.
• The silvery minnow cannot be reestablished from captive populations. No fish species has ever been successfully restored from captive populations alone. If the river goes dry, the minnow, the bosque, the birds and other wildlife dependent on a living river cannot survive. If the river goes dry the Rio Grande moves one step closer to extinction.
• Environmentalists, Pueblos, farmers, and cities can learn to cooperate. Cooperative water management can insure enough water for Native American, farm, and city use while insuring a living river for our children's children.

Last April, judge Parker ruled that the law required all water users, including the endangered species, to share the scarcity as well as the bounty the Rio Grande provides. The BOR, the city of Albuquerque, and the irrigators apparently did not learn that lesson in April any more than they did in kindergarten. It is a lesson we all learn sooner or later. We can hope for the sake of the minnow, that the politicians learn it as well.