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Land Letter Page 1 of2 ~ SEARCHABLE STORY ARCHIVE ~ SPECIAL REPORTS ~ KEY DOCUMENTS Update for Thursday April 10, 2003 COLORADO RIVER BuRec can't divert water to aid Mexican species, judge says Molly Villamana, Land Letter staff writer Siding with the Bureau of Reclamation, a federal iudge ruled last week that BuRec does not have discretion over how much Colorado River water it sends to Mexico, meaning that the bureau did not fail to protect "sted species in Mexico's portion of the Colorado River Delta. Bound by the 194~ U S -Mexil".n treaty. BuRec must deliver 1.5 million acre-feet of Colorado River water to Mexico. ~iQht environmental groups -- four from the United States and four from Mexico - argued that BuRec is responsible for ensuring the listed species in the Colorado River Delta are not negatively affected, sending :'ldditional water to the delta if the species require it. V R ni~trir:t .llInge .James Rohertson sided with BuRec's interpretation of the treaty, saying the agency is required to deliver 1.5 million acre-feet -- no more, no less. Robertson said it is not within BuRec's discretion to increase water delivery. BuRec divides 7.5 million acre-feet of water in the lower Colorado River basin among users in Nevada, Southern California and Arizona, diverting an additional 1.5 million acre-feet of water suitable for agricultural purposes to Mexico. Each state is allotted a specific portion of river water, planned to such minute detail that in dry years the Colorado River may not reach the Gulf of California, leaving the delta dry. In their court filings, the environmental groups attest BuRec has the ability to alter its management upstream - either through "river regulation, improvement of navigation and flood control" - to ensure the water reaches the gulf and the species in the delta that depend on it. The species dependent on Colorado River water reaching the delta are the Yuma clapper rail, Southwestern willow flycatcher, desert pupfish, totoaba bass and vaquita harbor porpoise. In 1996, BuRec determined its discretionary management of the lower Colorado River would not affect the porpoise, pupfish or clapper rail. It further studied how its discretionary operations would affect the totoaba bass and willow flycatcher, determining that it only needed to be concerned for the flycatcher because the bass was endemic to Mexico. The National Marine Fisheries Service sided with BuRec, writing in 1997 that "the United States, and therefore [BuRec], has n9- authority or discretion over the flow of water to the Colorado River Delta as a .result ofthe-.Mexican Water Treaty of 1944 and the 1964 Supreme Court decision that enjoined rBu~ec] f~m releasing excess water to Mexico beyond that called for in the treaty." To address the flycatcher, the Fish and Wildlife Ser\{ice advised BuRec to purchase 1,400 ::lcres of replacement habitat. Despite these previous opinions, decisions and court cases, the environmentalists argue BuRec has the ability to affect water operations to change how much water reaches the delta for the species. "There are a lot of actions there that are discretionary and that do impact the delta, and those weren't adequately considered in this decision," said Kara Gillon, an attorney for Defenders of Wildlife, one of the plaintiffs in the case. "The cwly 'o@ter that gets to the delta is when there are flood control leases from Lake l\1.e.ad," Gillon said. http://www.eenews.net/LandletterlBackissues/041003/04100307.htm 4/10/2003