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<br />])itt et all August 2001. Replacing the Bypass Flow On The Colorado River
<br />
<br />productive riverine and freshwater ecosystem in the midst of the Sonoran desert. The eastern
<br />delta, the site of to day's Cienega de Santa Clara, was an active arm of the Colorado River, lined
<br />by native cottonwood .and willow trees. I I Development on the Colorado River through the
<br />middle of the 20th century, most notably the filling of Lake Powell behind the Glen Canyon Dam
<br />in the 1950-60's, deprived the delta of nearly all flows, and its ecosystems, dessicated, ceased to
<br />exist. While small flows have returned OIl the river's mainstem, much of the former delta
<br />remains dry.
<br />
<br />The significance of the Cienega de Santa Clara cannot be overstated. The 110,000 acre-feet of
<br />saline water (2400 ppm) that flow via the MODE into the Cienega de SlII1ta Clara has not
<br />restored the pre-development ecosystem, but it has brought significant life back to the landscape.
<br />A 50,000 acre, open-water wetland dominated by cattails and phragmites, the Cienega provides
<br />habitat for tens of thousands of resident and migratory waterfowl, and harbors two endangered
<br />species, the Yuma clapper rail (Rallus longorostris yumanensis) and the desert pupfish
<br />(Cypranodon macularius).12 The Mexican government established protection for the Cienega de
<br />Santa Clara in 1993 when it was included in the core area designation of the Biosphere Reserve
<br />of the Colorado River Delta and Upper Gulf of California. The local community, Ejido Johnson,
<br />has developed a modest ecotourism enterprise, guiding visitors on boats through the Cienega's
<br />open waters.
<br />
<br />The Cienega de Santa Clara is an inadvertent creation of efforts to control salinity on the
<br />Colorado River. It is also the former site of one of the world's great desert river deltas, which
<br />was destroyed as the Colorado River was developed for consumptive use in the United States.
<br />Its ecological value is indisputable, and the Vnited States may be obligated, by several treaties,
<br />laws, and agreements,13 and as a good neighbor, to do it no hann. Furthermore, the United
<br />States may be authorized to protect the Cienega by amendments to the CRBSCAI4 which
<br />sanction funding for measures to replace incidental fish and wildlife values foregone as salinity
<br />control programs are implemented. I ,
<br />
<br />" Edward P. Glenn et aI., (1996), Effects of Water Management on Ihe Wetlands oflhe Colorado River Delta,
<br />Mexico. Conservation Biology 10 (4): 1175-1186
<br />12 For more discussion on the ecology ofthe Cienega de Santa Clara, see Glenn et al. supra n. II, and DanielF.
<br />Luecke, et al. (1999). A Delta Once More: Restoring Riparian and Wetland Habitat inthe Colorado River Delta.
<br />Environmental Defense Fund Publications,
<br />13 See, e.g. Endangered Soecies Act, 16 U,S.C. ~ 1536 (prohibiting federal agencies from "jeopardizing"
<br />endangered or threatened species); Ramsar Convention (requiring the U.S. and Mexico to "fonnulate and implement
<br />their planning so as to promote the conservation of the ",etlands" such as the Cienega de Santa Clara); the La Paz
<br />Agreement (agreeing the U.S, and Mexico to cooperate in the field of environmental protection in the border area).
<br />The transboundary application of the Endangered Species Act is unresolved, See Jennifer Pit~ et aI., (2000). Two
<br />Nations, One River: Managing Ecosystem Conservatioo in the Colorado River Delta. Natural Resources Journal,
<br />40:819-864.
<br />14 Pub. L, No. 98-569 (1984) and Pub,L, No, 104-20 (1995),
<br />"U.S. Bureau of Reelamation, (1974). Colorado River Basin Salinity Control Act Handbook, Section 23, USDA
<br />Rules and Regulations, 8 (as amended by PUB,L. NO, 98-569, 1984). "Fish and wildlife values foregone" is
<br />defined by the United States Department of Agriculture mles and regulations as "incidental habitats that may have
<br />resulted from past irrigation and system practices and nIay be adversely affected by conservation treatment applied
<br />by the participant." Neither the amendments nor the mles and regulations discuss the applicability of this
<br />authorization to transboundary resources.
<br />
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