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l Rio Grande Basin Issues Creede Watershed Work: The Upper Willow Creek Restoration Study is in its final phase. A report has been prepared in draft form and is being reviewed and finalized. The Willow Creek Restoration Committee, a local watershed group, has directed the effort, partially funded by the CWCB. The consultant for the study is Agro Engineering, located in Monte Vista, Potential flooding risks and debris risks related to flooding have been identified in the portion of the watershed upstream of Creede. Alternatives for addressing those problems have been presented to the committee. Those alternatives were considered formally at the committee's regular monthly meeting in Creede on Sept. 4 and then finalized arid prioritized. The study concludes with recommendations to the committee for design and implementation of specific projects. Two related efforts, not funded by CWCB, are currently underway as well. The first effort will address the replacement or repair of the flood control flume in Creede. The second effort will address the restoration of the stream from the downstream end of Cree de to the confluence with the Rio Grande and necessary reclamation of the tailiIJ.gs through which that section of the creek flows, Rio Grande Silvery Minnow v. Keys: The U.S. T~nth Circuit Court of Appeals has granted a motion by the state of New Mexico, Albuquerque, Santa Fe, the Middle Rio Grande Conservancy District, the Rio de Charna Acequia Association, and Double M. Ranch (defendants, intervenors and appellants) for a stay of a district court's order to release water under contract from Heron Reservoir in northern New Mexico to maintain Rio Grande flows some 200 miles down-stream to protect the endangered silvery minnow. The Circuit judges wrote that, "we note that these 'appeals raise very substantial questions, including but not limited to (1) whether contracts governing:distribution offederal project water stored in Heron Reservoir permit the Bureau of Reclamatiotl to release such water as one means of complying with the Endangered Species Act, (2) whether this case involves agency action implicating the ESA, in light of the pertinent contracts and surrounding circumstances, and (3) whether the district court gave adequate deference to relevant findings of the Fish and Wildlife Service." The Appeals Court action followed a Sept. 18 U.S. District Court of New Mexico decision to force Reclamation to release water from Heron Reservoir. Considering the Fish and Wildlife Service's (FWS) September 12 Biological Opinion (BO), th~ court ruled that the FWS and Reclamation failed to consider a reasonable and prudent alternative that would have avoided jeopardy to the silvery minnow. . . Reclamation argued that having an estimated 150,000 to 200,000 silvery minnows safely held in captivity to ensure species' survival and allowing certain stretches ofthe river to run dry for the remainder of the year would not endanger the spe9ies. The court noted that the federal agencies failed to prove there were enough sexually mature minnpws captured to ensure species survival. "The record is devoid of evidence that, with the dramatically limited flows resulting from the September 12,2002 proposal, it can reasonably be expected that enough silvery minnow[s] will survive in the wild to maintain, with augmentation, 100,000 to 1,000,000 [the estimated figure for ensuring sufficient genetic variability to prevent eventual extinction] adult silvery minnows capable of reproduction in the wild," The District Court concluded that the September 12 BO, unlike an August 2 BO, was arbitrary and capricious because it did not consider releasing water from Heron Reservoir for the remainder of 2002, The court also found that the release ofwatj::r from Heron Reservoir this year to meet flow requirements for the silvery minnow is consistent:with the intended purposes of the San Juan-Chama Project legislation. Additionally, the court said that due to Reclamation's obligations under the 17 .