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Upper Colorado Region
Salt Lake City, Utah
Media Contact:
Ken Maxey
(505) 248-5357

Released On: February 19, 2003

Final Biological Assessment on Middle Rio Grande Water and River Maintenance Operations Released
The Bureau of Reclamation (Reclamation) and the U.S. Army Corps of Engineers (Corps) announced today that they have released a final biological assessment (BA) regarding water and river maintenance operations on the Middle Rio Grande. On September 23, 2002, U.S. District Court Judge James Parker issued an order in which Reclamation and the U.S. Fish and Wildlife Service (Service) were ordered to reinitiate formal Endangered Species Act (ESA) consultations to plan for various water operation contingencies that may arise during the Fall of 2002 and throughout 2003.

"The final BA describes proposed federal actions on the Middle Rio Grande, including Reclamation's water management operations and river management activities, the Corps' flood control operation, and non-federal actions," said Ken Maxey, Manager of Reclamation's Albuquerque Area Office. "The BA considers the effects of these proposed actions on federally protected species occurring in or near the Rio Chama or Rio Grande from Heron Reservoir and Velarde, New Mexico, respectively, to the headwaters of Elephant Butte Reservoir."

Two significant differences between the Draft BA and public statements made and the resulting Final BA are: the final BA covers a 10-year period from March 1, 2003 to February 28, 2013, instead of 2003 and out-year water operations. And, Appendix B of the final BA does NOT list a priority of water operations to be implemented to ensure required flows in the Middle Rio Grande for the silvery minnow as previously discussed in the event Judge Parker's decision is upheld.

The Final BA focuses on impacts to the Rio Grande silvery minnow, the southwestern willow flycatcher, the bald eagle and the interior least tern.

Reclamation and the Corps are submitting the Final BA to the Service pursuant to Section 7(a)(2) of the ESA. The Final BA incorporates by reference and summarizes applicable and relevant portions of the BA submitted to the Service on June 6, 2001.

Reclamation and the Corps have determined that the proposed federal and non-federal actions combined may affect, and are likely to adversely affect, the southwestern willow flycatcher. Combined, the proposed federal and non-federal actions may affect, and are likely to adversely affect, the silvery minnow and are likely to adversely modify proposed critical habitat for the silvery minnow. Combined, the proposed federal and non-federal actions may affect, but are not likely to adversely affect, the bald eagle and interior least tern.

Concurrent with court-ordered consultations, federal and non-federal stakeholders are working to develop the Middle Rio Grande ESA Collaborative Program to protect and improve the status of endangered species, while protecting existing and future water uses and ensuring compliance with all applicable laws. The time frame of this Section 7 consultation is intended to cover a maximum period of ten years, anticipating completion of the long-term Collaborative Program and any related Section 7 consultation. Any resulting Section 7 consultations over the Collaborative Program and both short- and long-term needs of the listed species will supercede this consultation.

"Aspects of the District Court's ruling have been appealed by the United States and other parties, and oral arguments were heard by the Tenth Circuit Court of Appeals on January 14, 2003," adds Maxey. "We anticipate that the Tenth Circuit's ruling will further address the scope of Reclamation's authority and we hope that the Tenth Circuit Court will issue its ruling in time to provide guidance for the 2003 irrigation season."

Reclamation anticipates that the Tenth Circuit Court's decision will likely be issued very near to when irrigation water deliveries would normally begin (March 1). Therefore, in order to prepare for a range of outcomes stemming from the Tenth Circuit Court decision in time to proceed for the 2003 irrigation season, the Department of Justice agreed before the District Court that the Federal agencies would consult on two "tracks" for 2003. The first would assume that the Tenth Circuit agreed with appellants that Reclamation's discretion is limited, and the second track would assume that the Tenth Circuit Court upholds the District Court's ruling regarding Reclamation's discretion over water and operations in the Middle Rio Grande and San Juan-Chama projects.

As a result, this consultation is designed to present one standard "proposed action" (contractual water deliveries and other Project operations) and then detail in two appendices Reclamation's available discretion to undertake measures to avoid jeopardy to or to protect and conserve listed species. In the event that the Service determines that the proposed actions are likely to jeopardize the continued existence of the listed species, Appendix A to this BA lists some actions that would be available as reasonable and prudent alternatives to the proposed action, reasonable and prudent measures to reduce any incidental take associated with the proposed action, or to promote conservation and recovery of listed species pursuant to Section 7(a)(1) of the ESA. Appendix B details additional actions that would be available for such measures, consistent with the District Court's decision in the Minnow v. Keys litigation. Under Appendix B, Reclamation has NOT identified the priority of water operations that would be implemented in order to ensure required flows in the Middle Rio Grande for the silvery minnow.

The Final Biological Assessment entitled "Bureau of Reclamation's water and river maintenance operations, Army Corps of Engineers' flood control operation, and non-Federal actions on the Middle Rio Grande, New Mexico March 1, 2003 - February 28, 2013," is available on the Albuquerque Area Office Web site.

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