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<br />. <br /> <br />. <br /> <br />. <br /> <br />Page 7 <br /> <br />Conservation District, and pumped water from the low flow conveyance channel into the river. <br />The Court approved the stipulation and ordered mediation for a permanent solution to the <br />problem. We are concemed regarding any position the United States may take with respect to <br />releasing San Juan-Chama water directly for instream flows. The federal law authorizing the <br />San Juan-Chama project appears to forbid releases for such purposes. Further, we are concerned <br />about our water in the Rio Grande and whether the federal government is looking to Platoro or <br />the Closed Basin Project to add to the flows for the miJmow beyond our Compact delivery <br />requirements. <br /> <br />On June 29,2001, the United States issued the Programmatic Biological Opinion on the <br />Effects of Actions Associated with the U.S. Bureau of Reclamation's, U.s. Army Corps of <br />Engineers', and Non-Federal Entities' Discretionary Actions Related to Water Management on <br />the Middle Rio Grande, New Mexico ("Bi-Op"). <br /> <br />The Bi-Op analyzes the effects on the listed species (silvery minnow and Southwestern <br />fly catcher) from existing depletions to the Rio Grande that result from both Indian and non- <br />Indian water uses within the action area, and extends incidental take coverage to those uses. <br />Regarding the San Juan-Chama project ("SJC"), it appears that the Bi-Op does not call for <br />changes either to the Compact or to the governing rules and regulations of the SJC project, nor <br />does it call for any significant changes to existing uses of SJC water. <br /> <br />The Bi-Op also gives New Mexico water users incidental take protection. In exchange <br />fot this, New Mexico and the United States entered into a settlement where the U.S. would rent <br />water from New Mexico for three years to maintain flows in the Rio Grande. New Mexico must <br />then use those 1:i.ulds in programs designed to restore the endangered species. Based on the Bi- <br />.Op and this agreement, the U.S. and New Mexico'then moved the District Court to dismiss the <br />complaint as moot. The environmental groups opposed this and moved to amend their complaint <br />to add a claim that the Bi-Op was arbitrary and capricious. <br /> <br />The Court allowed the environmental groups to amend their complaint, did not dismiss <br />the action as moot and made comments to the effect that, had the Bi-Op not been issued when it <br />was, he would have found for the plaintiffs. The Court also stated that in his view all Corps of <br />Engineer and Bureau of Reclamation actions are discretionary and the federal agencies may <br />disregard contracts or compacts. The Court requested briefing on this issue and the issue of <br />whether the litigants can "go behind" the Bi-Op and challenge the agency conclusions. The <br />Court denied the State of Colorado's motion for amicus status and declined to accept <br />Colorado's amicus brief joining the State of New Mexico's Brief on these issues, The Court <br />has scheduled a hearing on the substantive issues for November 19, in Albuquerque. <br /> <br />12. Middle Rio Grande Conservancy District v. Norton, Cry. 99-870, 99-872, 99- <br />1445MJRLP (Consolidated), NM Federal District Court. <br /> <br />Issue: Whether the rule designating critical habitat for the silvery minnow is valid. The <br />U.S. District Court determined that the rule is invalid. However, the rule was to remain in <br />operation for 120 days, in which time the Secretary may issue another rule designating habitat. <br />