“Silvery minnow” no precedent for Delta

Posted on | February 16, 2010 | 2 Comments

This follow up to “Soft on Fish” arrived today from a member of the water bar familiar with the 2003 Silvery Minnow legislation cited by Senator Feinstein as precedent for the rider that she plans to attach to a jobs bill to increase water diversions from the Sacramento-San Joaquin Delta to farm interests on the West Side of the Central Valley.

“Senator Feinstein’s press release stated, “There is precedent for the solution I am pursuing: in 2003, the Senate unanimously approved legislation that provided water supply certainty with regard to restrictions imposed to protect the Silvery Minnow in New Mexico. In that legislation, Congress mandated that a Biological Opinion be implemented with a change.”

It is not true that the silvery minnow rider is similar to, or provides precedent for, Senator Feinstein’s Bay-Delta proposal.

First, there was no exemption from the Endangered Species Act in that rider. It only prohibited the Bureau of Reclamation from using water stored in and delivered from the San Juan-Chama Project’s Heron Reservoir in New Mexico to meet the Reasonable and Prudent Alternative (RPA) in the biological opinion from the Fish and Wildlife Service on silvery minnow.

In other words, Reclamation could not use water from that Project to alleviate jeopardy to an endangered species in the Middle Rio Grande.

The San Juan-Chama Project diverts water from the Colorado River basin and adds it to the Rio Grande basin.  When water was diverted from the San Juan tributaries, it went through an Endangered Species Act consultation with the US Fish and Wildlife Service.  Many in Congress felt, in response to the 10th Circuit’s ruling that prompted the legislation, that it was inequitable that the water again be part of an Endangered Species Act consultation when it was released into the Middle Rio Grande.

And, since it added water to the Rio Grande, it seemed perverse to some to use that water for Endangered Species Act purposes.

The other Bureau of Reclamation project in the Middle Rio Grande, the one that diverts water, received no such protections from the Endangered Species Act.

Second, while that rider did insulate the silvery minnow Biological Opinion from judicial review, it did not change the opinion.  In fact, that rider said that as long as the Bureau of Reclamation complied with Fish and Wildlife’s reasonable and prudent alternative, the opinion was sufficient.

In Senator Feinsten’s case, the rider would loosen the protection that Interior and Commerce department scientists felt necessary to protect listed species. This was not done in the silvery minnow rider.

Third, although it’s not clear, the “water supply certainty” referred to by the Senator in the New Mexico case appears to involve the needs of Albuquerque. The San Juan-Chama Project stores and delivers half (and this only started in December) of the city’s supply. Were Albuquerque faced with the situation that California is in – drought – it too would have a drastically reduced water supply.  For example, in 2002 only 6,300 acre feet were stored in the reservoir.  If that continued for a couple of years, deliveries would be reduced, Endangered Species Act or no Endangered Species Act.”

Comments

2 Responses to ““Silvery minnow” no precedent for Delta”

  1. OtPR
    February 17th, 2010 @ 4:32 pm

    This is great stuff. I’d wondered about the silvery minnow aspect of Sen. Feinstein’s statement. What happened to the minnow after? But getting the legal background is just as good.

    I’m so glad we have blogs now, where people can scrutinize banal politician’s statements.

  2. chas moore
    March 21st, 2010 @ 6:14 pm

    Too many dams controlling big agribusiness demands for water. Much of which is wasted or tainted thru use. Forget the minnow, lets take care of homo erectus first. Yes and no more expensive National Parks for further burden to this poor economy.

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