Endangered Species Act
The federal Endangered Species Act was designed to prevent or delay extinction of species whose populations have been seen to be declining significantly. The act constrains federal behaviors that advesely affect such species' habitats. In particular, the act places both demands and limits on managed water flows in the Rio Grande.
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Description of the Issue
The federal Endangered Species Act imposes significant constraints on water flows in the Rio Grande.
The 1973 Endangered Species Act (16 U.S.C. § 1531 et seq.) established requirements for protecting and conserving federally listed threatened and endangered plants and animals as well as the habitats they occupy. It includes provisions for the U.S. Fish and Wildlife Service (FWS) and/or NOAA’s National Marine Fisheries Service (NMFS) for marine species to list species’ statuses and designate their critical habitats to include specific area(s) occupied and potentially occupied by the species when listed. Such areas are to hold those physical or biological features essential to the conservation of the species and may require special management considerations or protection. ESA also provides the opportunity to develop and implement “recovery plans” to aid the conservation and survival of the species listed, unless such a plan will not promote the conservation of the species. Produced recovery plans must (1) describe what is needed to return the species to a healthy state; (2) include criteria defining this healthy state so that, when achieved, the species can be removed from listing; and (3) estimates of the time required for recovery and how much it will cost. The ESA also requires a review of all listed species at least once every five years, followed by a review of any approved recovery plans using available monitoring data to determine whether the plan needs revision and, if so, the revision produced
Of particular relevance to water planning and management along the Middle Rio Grande (MRG), ESA requires that federal agencies consult with FWS and/or NMFS to ensure that actions they authorize, fund, or implement do not significantly jeopardize the existence of listed species or produce long-term adverse effects to designated critical habitats for these species. These consultations include identification and prohibition of any action that may cause a significant "take" of any listed endangered fish or wildlife. Specific requirements to allow any authorized action(s) are defined in a Biological Opinion (BiOp or BO) produced by FWS or NMFS. FWS is the lead federal agency for implementing ESA in New Mexico.
Requirement for the protection of listed species and their habitats along the NM MRG are currently defined in FWS’s 2016 “Final Biological and Conference Opinion for Bureau of Reclamation, Bureau of Indian Affairs, and Non-Federal Water Management and Maintenance Activities on the Middle Rio Grande, New Mexico” (https://www.fws.gov/southwest/es/NewMexico/BO_MRG.cfm). The NM Interstate Stream Commission and the Middle Rio Grande Conservancy District are the non-federal agencies included in this BO. Because the U.S. Army Corps of Engineers under federal law lacks discretionary authority regarding operation of Corps reservoirs along the MRG and its tributaries (including Cochiti and Abiquiu), their operations are excluded from this BO.
Under this 2016 BO, four ESA listed species must be considered and FWS defined management and conservation actions followed during current and future water management planning and actions for the MRG. Three of these are listed as endangered (Rio Grande Silvery Minnow, Southwestern Willow Flycatcher, and New Mexico Meadow Jumping Mouse), and one is listed as threatened (Western Yellow-Billed Cuckoo).
Of these species, issues related to the silvery minnow are the most demanding and contentious to MRG stakeholders due to river-flow requirements to stimulate spring spawning, channel drying often occurring during the late-spring and summer irrigation season, adverse flow effects related to climate change, and questions whether its long-practiced monitoring program provides reliable data to assess its true population status along the MRG.
Monitoring data show that flycatcher populations along the management unit that includes the MRG exceed population target for this unit, but uncertainties exist due to infestation of the exotic salt-cedar (or tamarisk) beetle’s defoliation impacts within critical MRG riparian habitats for this flycatcher.
Monitoring also shows that the cuckoo population is relative stable and is distributed from the Belen Reach of the MRG south to Elephant Butte Reservoir and beyond.
The BO also determined that proposed water management actions “may affect, but [are] not likely to adversely affect” the NM Meadow Jumping Mouse, its designated critical habitat, or a fifth listed species, the threatened Pecos Sunflower, as long as management and conservation outlined in the BO are followed.
Various committees and working groups formed by Middle Rio Grande Endangered Species Collaborative Program are actively working to advance the scientific understanding, resolve species uncertainties, and help guide management actions of its members in relation to BO requirements for these listed species.