Minnow rule may set precedent, Norton says

By Kate Nash
The Albuquerque Tribune


Albequerque, N.M. - The 10th Circuit Court of Appeals in Denver is set to decide next month whether Albuquerque or the endangered Rio Grande silvery minnow will drink first from New Mexico reservoirs in times of drought.

But the case also could help federal water managers decide how to manage water disputes across the country, U.S. Secretary of the Interior Gale Norton said in an interview Wednesday after an appearance at Santa Ana Pueblo.

"This case will help us understand what the rules are" when it comes to accommodating human needs and protecting endangered species, she said.

Norton's department oversees the U.S. Bureau of Reclamation and the U.S. Fish and Wildlife Service, agencies involved in a yearslong lawsuit over protecting the tiny fish.

She said she's watching the case to see how the federal government can protect the minnow and its habitat while meeting its contractual obligations to deliver water to Albuquerque.

The ruling has the potential to set a precedent for other related cases, Norton said.

"We need to find ways of protecting endangered species within the context of existing water rights," she said.

Environmentalists first filed a lawsuit in 1999 saying the federal agencies that control dams and reservoirs along the Rio Grande weren't doing enough to protect the minnow. The fish had been listed as endangered in 1994.

The issue came to a head this year as severe drought left reservoirs nearly empty and threatened to dry up crucial stretches of the Rio Grande where the minnow lives.

In September, U.S. District Judge James Parker ordered the Bureau of Reclamation to release stored water from the San Juan Chama diversion project. The city of Albuquerque owns the water, which is earmarked for a drinking water project scheduled to go on line in 2006.

On Jan. 14, the Denver Court will hear appeals of Parker's decision by the city, the state and the Middle Rio Grande Conservancy District. Albuquerque says it needs every drop of the water it has set aside for the diversion project.

If the court upholds Parker's decision - based in part on the federal agencies' duty to protect the fish under the Endangered Species Act - Norton said it will pose difficulties for agricultural and community interests when it comes to water allocations.

But she said she doesn't foresee Congress working to change the Endangered Species Act.

"There have been big attempts to change the ESA in the past, but our focus is on finding balance within the existing act," she said.


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