Minnow-water rule galls greens
A Santa Fe-based environmental organization said it will challenge the U.S. Fish and Wildlife Service's designation of 157 miles of the Rio Grande as critical habitat for the endangered silvery minnow.
Fish and Wildlife announced the designation Wednesday. It replaces a similar 1999 designation that was set aside by court order.
But John Horning, executive director of the environmentalist group Forest Guardians, said the new designation "misses the mark" in the same way the earlier one did.
"Critical habitat is supposed to facilitate the recovery of a species, and we are not going to recover the minnow by concentrating on the middle Rio Grande alone," Horning said Wednesday.
He said Fish and Wildlife needs to extend critical habitat status to the Rio Grande in the Big Bend area of Texas and to the Pecos River in New Mexico and perhaps parts of the Pecos in West Texas.
The minnow, once the most numerous species of fish in the Rio Grande, now exists only in the middle portion of the river designated Wednesday as critical habitat. Some environmentalists contend that the reintroduction of the minnow to southern stretches of the Rio Grande and parts of the Pecos is necessary to re-establish the species.
Horning said the Forest Guardians will challenge the new designation in court, just as the organization challenged the 1999 designation which marked off 163 miles of the Rio Grande as critical habitat.
"They have failed to deliver on recovery," he said. "We are not going to get it while the burden is on New Mexico and the middle Rio Grande alone. Other states and other water users need to share the burden."
The state of New Mexico and the Middle Rio Grande Conservancy District also filed lawsuits challenging the 1999 critical habitat designation - but for reasons different than those offered by the Forest Guardians.
New Mexico and the conservancy district, which provides irrigation water to farmers, feared that critical habitat designation would deny river water to farmers - especially in dry years when it is most needed.
In November 2000, U.S. District Judge Edwin Mechem set aside the 1999 designation on the grounds that it made no sense to assume that in a dry region such as New Mexico an unspecified amount of water would be available at any given time.
On Wednesday, the state Attorney General's Office declined comment on the new designation until it has had a chance to review it. Calls to the Middle Rio Grande Conservancy District seeking comment were not immediately returned.
Critical habitat identifies areas that are essential to the conservation of a threatened or endangered species and that may require special management considerations or protection.
Federal agencies must consult with Fish and Wildlife on projects that might affect the critical habitat area.
However, critical habitat designation is not supposed to affect landowners, and it does not establish any preserve or special conservation area.
In Wednesday's news release, H. Dale Hall, director of the Fish and Wildlife Service's Southwest Region, said the service did not anticipate increasing supplemental water flows to the area just because it has been designated critical habitat.
But the possibility that supplemental water might be diverted to the benefit of the minnow and the detriment of human users is at the heart of a case now before the 10th Circuit Court of Appeals in Denver.
Last year, U.S. District Judge James Parker said the U.S. Bureau of Reclamation and Fish and Wildlife should consider using water from Heron Reservoir in northern New Mexico for the minnow. That would diminish the amount of Heron water available for use by irrigators and San Juan-Chama Project users such as the city of Albuquerque.
The city of Albuquerque and farmers appealed Parker's ruling.
The new critical habitat designation includes 300 feet on each side of the river except when the river is bounded by levees, in which case the levee is included in the designation as well.
Horning said he liked that feature.
"That's a modest step in the right direction," he said. "It recognizes that you can't restore a river without addressing its flood plain."
The designation also includes part of the Jemez River, which runs from the Jemez Canyon Reservoir to where it enters the Rio Grande.
It excludes the pueblo Indian lands of Santo Domingo, Santa Ana, Sandia and Isleta, which were included in the 1999 critical habitat designation.
In Wednesday's news release, Hall said these pueblos had developed voluntary conservation plans that provided greater benefit to the river and the minnow than the critical habitat designation does.
Horning is not so sure about that.
"I'm not convinced the basis for excluding them is supported by any scientific evidence," he said. "I know there are good intentions, but I don't know that there are any concrete plans."
The Fish and Wildlife service said the new designation is based on
an economic analysis, an extensive environmental impact study and
public comments and suggestions.
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