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<br />feet in the Lower South Park Aquifer). The Applicant then proposes to withdraw water from the <br />underground storage system through 47 wells for ultimate delivery to Aurora. . <br /> <br />11. Rio Grande Silvery Minnow v. Martinez, No. 99 CV 1320, NM Federal District Court. <br /> <br />Issue: Will water users on the upper and middle Rio Grande be forced to by-pass flows <br />to keep the river bed wet and protect fish under the Endangered Species Act? <br /> <br />Decision: Pending. See discussion below ofProgtammatic Biological Opinion, and New <br />Mexico's request for amicus participation by Colora~o. <br /> <br />Discussion: Several environmental groups (Defende~s of Wildlife, Sierra Club, Forest <br />Guardians, Audubon Society, and the Southwest Environmental Center) filed suit against the <br />Bureau of Reclamation and the Corps of Engineers. The federal agencies asserted in a biological <br />assessment that they have little discretion to make releases from federal reservoirs for the silvery <br />minnow and willow flycatcher, because of constraints by Compacts, federal law and existing <br />contracts. The environmental groups filed a motion for preliminary injunction in April to assure <br />that water remained flowing in the river through the irrigation season. <br /> <br /> <br />Page 8 <br /> <br />The Court ordered mediation and issued a gag order as to the negotiations. The parties were <br />able to negotiate a stipulation providing water to the minnow, using some of Albuquerque's San <br />Juan-Chama contract water by exchange, conserved water by the Middle Rio Grande <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 concerned 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 fo~ such purposes. Further, we are concerned <br />about our water in the Rio Grande and whether the fe\leral government is looking to Platoro or <br />the Closed Basin Project to add to the flows for the minnow beyond our Compact delivery <br />requirements. <br /> <br />On June 29, 2001, the United States issued the Programmatic Biological Opinion on <br />the Effects of Actions Associated with the U.S. Bu~eau of Reclamation's, U.S. Army Corps of <br />Engineers', and Non-Federal Entities' Discretionqry Actions Related to Water Management <br />on the Middle Rio Grande, New Mexico ("Bi-Op")! <br /> <br />The Bi-Op analyzes the effects on the listed species (silvery minnow and <br />Southwestern fly catcher) from existing depletions to the Rio Grande that result from both <br />Indian and non-Indian water uses within the actHm area, and extends incidental take <br />coverage to those uses. Regarding the San Juan-~hama project ("SJC"), it appears that <br />the Bi-Op does not call for changes either to the C::ompact or to the governing rules and <br />regulations ofthe SJC project, nor does it call for any significant changes to existing uses of <br />SJC water. <br /> <br />The Bi-Op also gives New Mexico water users incidental take protection. In <br />exchange for this, New Mexico and the United States entered into a settlement where the <br />U.S. would rent water from New Mexico for thr~e years to maintain flows in the Rio <br />Grande. New Mexico must then use those funds; in programs designed to restore the . <br />