Arizona Water Resource Volume 12 Number 1

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July - August 2003 TT TT Arizona Water Resource Skirmish in New Mexico in Ongoing Battle Over Water for Species An,-Iona Confronts Similar Issue With Southwest Villow Flycatcher Nesting The ongoing controversy about allocating scarce water resources to preserve a specie was further fueled recently when an appellate court allowed the U.S. Bureau of Reclamation the option to divert water from cities and farms to protect an endangered minnow in the Rio Grande in New Mexico. The decision raised a hue and cry, with critics of the ruling warning of short -and long -term conse- quences. The decision upheld an earlier ruling by a federal judge that water in Huron Reservoir should be used to preserve the fish. In the midst of the furor is the tiny endan- gered Rio Grande silvery minnow. The contro- versy involves releasing Rio Grande water backed up behind Huron Reservoir, a facility managed by the BuRec. Water right holders to reservoir supplies include the city of Albuquerque and Middle Rio Grande Conservancy District. They had signed contracts decades earlier, before the passage of the Endangered Species Act. The ruling allows BuRec the discretion of reducing deliveries of contracted water to ensure flow for the threatened minnow. In other words, the court deter- mined that the ESA takes precedence over the water contracts of cities and irrigators. The resulting fray was predictable. N.M. Attorney General Patricia Madrid said, "This case in- volves one pivotal question: Who controls New Mexico's water, New Mexico or the federal government ?" Those opposed to the ruling see its immediate or short -term effect as reducing water supplies to local and state water users. With water siphoned off to protect a species, less water is available for human consumption. This threat raised the ire of New Mexico Gov. Bill Richardson who said, "I pledge my best efforts to protect Albuquerque and New Mexico from this grievous imbalance in the Endangered Species Act " Albuquerque Mayor Martin Chavez foresees dire and heart- rending consequences saying the decision takes "water from the mouths of this city's children." Agricultural interests claim the rul- ing will further reduce farmers's ability to earn a living in the state. Other observers expressed concern about the broader, more long -range effect of the ruling, fearing it could affect management of waterways across the West and threaten all cities and farms served by federal water projects. BuRec Commissioner John Keys III says if the ruling stands it could affect every Reclamation stor- age project with an endangered species regardless of the state in which it is located. Saying the decision "profoundly disappointed" him, U.S. Sen Pete Domenici views the decision as a threat to estab- lished water law throughout the West. On opposite sides of the issue are environmentalists, who are pleased with the decision, and NM political and business leaders who generally denounce it. Environmentalists, fearing the decision had come too late to save the threatened fish, say the fish is an indi- cator species, its survival a measure of the health of the river. The U.S. Fish and Wildlife Service and BuRec joined in appeal- ing the original ruling arguing that the ESA does not give the Bu- reau discretion to deliver less than the full amount to entities who have contracted for water. On the legislative front, Domenici lost little time in adding language to the Senate Energy and Water Appropriations Bill that bars federal agencies from taking water already owned by New Mexico's cities and farmers for use of the endangered Rio Grande silvery min- now. The "rider" also recognizes the U.S. Fish Silvery Minnow Photo: U.S Wildlife Service and Wildlife Service's current biological opinion as the definitive statement on the minnow's re- covery. According to this opinion, the Bureau only needs to maintain river flow until June 15 Fish each year. NM Rep. Heather Wilson introduced similar measures to the House version of the bill. The bill passed and is expected to be signed into law by President Bush. In response to a similar issue, Arizona has been taking action to ensure water supplies and protect a specie without incurring at the same time undue consequences and costs. At issue in Arizona is the Southwestern willow flycatcher, an ESA - protected species. Due to the ongoing drought, the level of Roosevelt Lake has dropped significantly, and flycatchers have moved their nests near the dry lake bottom, an area usually underwater. By refilling the reservoir in response to increased precipitation the Salt River Project will be destroying flycatcher habitat in violation of the ESA. SRP, however, negotiated a permit from the U.S. Fish and Wildlife Service to refill Roosevelt Lake when wet conditions re- turned. Measures that SRP agreed to adopt to obtain the permit include purchasing of habitat in other locations. Meanwhile fly- catchers have been found to be nesting in drought -dried areas at Horseshoe Reservoir, and SRP is again working with FWS to devel- op a strategy to balance interim reservoir operations and flycatcher protection. It may have been in response to the NM ruling along with the situation in Oregon's Klamath Basin in 2001 that prompted Arizona Department of Water Resources Director Herb Guenther to warn of conflicts that could result if water users lose out to endangered species for water supplies. He said, "At some point in time, push will come to shove. I believe it will eventually come to civil disobe- dience where the people are going to demand water back from the species." Guenther made his remarks at a Phoenix conference on July 8 sponsored by the U.S. Department of Interior as part of its Water 2025 initiative. A