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WildEarth Guardians v. United States Army Corps of Engineers

United States District Court, D. New Mexico

June 6, 2018

WILDEARTH GUARDIANS, Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Federal Defendant, and MIDDLE RIO GRANDE CONSERVANCY DISTRICT, Intervenor-Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK, UNITED STATES DISTRICT JUDGE

         And Elijah the Tishbite, who was of the inhabitants of Gilead, said unto Ahab, f'JAs the LORD God of Israel liveth, before whom I stand, there shall not be dew nor rain these years, but according to my word ["]

         1 Kings 17:1 (King James).

         New Mexico is languishing in the midst of an unprecedented, prolonged drought. As it stands, the many stakeholders who depend on water in the region have become increasingly embroiled in a perilous zero sum game. There simply is not enough water for everyone, and with painful realities imminent, how to best allocate the limited water is a deeply polarizing question.

         If the Court possessed the power of Elijah, it would call down rain to nurture our parched state. But the Court has no such power. All the Court can do is answer the legal question central to this matter: is the United States Army Corps of Engineers (Corps)'s decision not to consult with the United States Fish and Wildlife Service regarding its Middle Rio Grande operations arbitrary or capricious? Plaintiff WildEarth Guardians (Guardians) thinks so, but, surprisingly, Guardians initially ignored a lengthy and detailed document Corps produced to explain its decision.

         Because one cannot simply ignore an agency's explanation when challenging the agency's decision, the Court denies most of Guardians's motion. With regard to Corps's maintenance operations in Abiquiu Dam tunnel and the Jemez Canyon stilling basin, the Court reverses and remands to Corps for clarification and explanation.

         BACKGROUND

         I. Backdrop of the litigation.

         Water is perhaps the most important of all the scarce resources, especially in the American southwest, where human inhabitants rely heavily on Rio Grande water for everything from drinking to farming. Recognizing the scarcity and importance of Rio Grande water, Colorado, Texas, and New Mexico entered into an agreement, called the Rio Grande Compact, specifying how to share water in the region and creating the Rio Grande Compact Commission to help administer the compact.

         Congress, too, recognized the importance of Rio Grande water. When the Middle Rio Grande Conservancy District (MRGCD)[1] faltered, Congress approved the Middle Rio Grande Project. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1104 (10th Cir. 2010). The Middle Rio Grande Project was one of two major projects in the area, and it empowered Corps to construct, maintain, and operate dams and other devices on the Rio Grande and its tributaries. See Id. The operations were not, however, to interfere with the Rio Grande Compact, as Congress strictly regulated Corps's operations and restricted what Corps could do without the approval of the Rio Grande Compact Commission. See Flood Control Act of 1960, Pub. L. No. 86-645, § 203, 74 Stat. 480, 493 (1960) (the “1960 FCA”). Congress's other major project in the area, run by the United States Bureau of Reclamation (Reclamation), was the San Juan-Chama Project, which “imports water from the Colorado River Basin to the Rio Grande Basin.” See Rio Grande Silvery Minnow, 601 F.3d at 1104; see also Pub. L. No. 87-483, 76 Stat. 96 (1962) (“San Juan-Chama Act”).

         But humans are not, obviously, the only living beings to rely on Rio Grande water. The Rio Grande silvery minnow also depends on the water for survival. Once one of the most abundant species of fish in the Rio Grande, the minnow “now occupies a small portion of its historic range, primarily existing in the San Acacia Reach-a sixty-mile stretch of river south of Albuquerque, New Mexico, and north of Elephant Butte Reservoir.” See Rio Grande Silvery Minnow, 601 F.3d at 1104. The minnow's decline may have been caused by low spring run-off and human manipulation of the Rio Grande, such as regulation of river flow to provide for irrigation. See Id. In 1994, the minnow was listed as endangered under the Endangered Species Act (ESA). Id.

         Another species that relies on the Rio Grande is the southwestern willow flycatcher. The flycatcher is a small bird, approximately 15 cm long, which breeds in southwestern states. See Final Rule Determining Endangered Status for the Southwestern Willow Flycatcher, 60 Fed. Reg. 10694 (Feb. 27, 1995). The flycatcher's habitat, consisting primarily of deciduous shrubs and trees, is growing increasingly scarce due to “brood parasitism and lack of protective regulations.” Id. In 1995, the flycatcher was listed as endangered under the ESA. Id.

         In an effort to protect the minnow and flycatcher, Guardians, an environmental advocacy organization, has sued Corps for conducting its Middle Rio Grande Project operations in a manner that allegedly violates sections 7 and 9 of the ESA.

         Section 7(a)(2) of the ESA requires federal agencies to ensure that they do not “jeopardize the continued existence” of or harm any endangered species or its critical habitat. See 16 U.S.C. § 1536. To facilitate compliance with this substantive command, § 7(a)(2) provides that an agency considering an action must first determine whether the proposed action may affect an endangered species or its habitat. 50 C.F.R. § 402.14(a). If the action may do so, the agency must consult with the United States Fish and Wildlife Service (FWS). See 50 C.F.R. §§ 402.13, 402.14. At the end of consultation, FWS issues a Biological Opinion, which includes FWS's assessment of the likely effects of the proposed agency action. See 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)-(h). If FWS believes the proposed action is likely to jeopardize or harm an endangered species or its habitat, FWS issues a Reasonable and Prudent Alternative that the agency may take to avoid adversely affecting the endangered species. 50 C.F.R. § 402.14(h). At that point, an agency must either terminate an action likely to harm an endangered species (according to FWS's Biological Opinion), seek an exemption, or follow the Reasonable and Prudent Alternative. Rio Grande Silvery Minnow, 601 F.3d at 1106.

         Crucially, § 7(a)(2) is subject to an important limitation. The section only applies to actions that an agency has discretion or control over-so if the agency has no discretion to alter its actions, then an agency need not consult with FWS over that particular action. 50 C.F.R. § 402.03.

         In addition to § 7(a)(2), § 9 of the ESA prohibits any federal agency from “taking” a listed species. 16 U.S.C. § 1538(a)(1). To “take” in this context means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct.” 16 U.S.C. § 1532(19). If, after consultation, FWS finds that an agency's action will result in incidental taking of an endangered species, FWS may include an Incidental Take Statement in its Biological Opinion. 16 U.S.C. § 1536(b)(4). Any taking covered by the scope of the Incidental Take Statement will not violate § 9. See 16 U.S.C. § 1536(o)(2).

         According to Guardians, Corps is violating § 7(a)(2) by jeopardizing the minnow and flycatcher through its Middle Rio Grande operations while not consulting with FWS regarding such operations. (See Doc. 66 at 36-37.) Additionally, Guardians alleges that Corps is violating § 9 by “taking” the minnow through its operations. (See Id. at 37.)

         For this matter, a request to reverse an agency action, Guardians focuses on § 7(a)(2). According to Guardians, Corps's decision that it does not have sufficient discretion over its Middle Rio Grande operations to require consultation is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. (Doc. 120 at 55.) As such, Guardians asks this Court to force Corps to consult with FWS. (Id. at 56.)

         II. More on Corps and why it believes it does not have discretion to deviate.

         a. Corps's Middle Rio Grande operations.

         Under the Middle Rio Grande Project, Corps operates and maintains four dams on the Rio Grande and its tributaries: Abiquiu, Cochiti, Galisteo, and Jemez Canyon Dams. (A.R. 000004 (2014 Reassessment) at 9.) These dams are operated in a “coordinated and concerted manner, ” in accordance with § 203 of the 1960 FCA. (Id.)

         Abiquiu was initially authorized only for flood and sediment control, but later legislation gave Abiquiu the authority to store San Juan-Chama Project water, see Pub. L. No. 97-140, § 2(b), 95 Stat. 1717 (1981) (“P.L. 97-140”), and natural Rio Grande basin water, see Pub. L. No. 100-522, § 1, 102 Stat. 2604 (1988) (“P.L. 100-522”). (2014 Reassessment at 9-10.) Only San Juan-Chama Project water is currently stored at Abiquiu. (Id. at 10.)

         Cochiti, like Abiquiu, was originally only authorized for flood and sediment control. (Id. (citing 1960 FCA).) Later legislation added the authority to create a permanent pool at Cochiti Lake for the “conservation and development of fish and wildlife resources . . . .” (Id. (citing Flood Control Act of 1964, Pub. L. No. 88-293, 78 Stat. 171 (1964) (the “1964 FCA”)).) Corps has maintained a permanent pool of San Juan-Chama Project water at Cochiti since 1975. (Id.)

         Galisteo Dam is authorized only for flood and sediment control. (Id. (citing 1960 FCA).) Galisteo “is ungated, and its reservoir is normally dry, with most inflows occurring in the summer months as a result of thunderstorm activity.” (Id.)

         Jemez Canyon Dam and Reservoir, which has been in operation since 1953, was authorized by the Flood Control Act of 1948, Pub. L. No. 80-858, 62 Stat. 1171 (1948) (the “1948 FCA”), and the Flood Control Act 1950, Pub. L. No. 81-516, 64 Stat. 170 (1950). (2014 Reassessment at 10.)

         b. Corps's consultation with FWS.

         In the early 2000s, Corps and Reclamation together voluntarily initiated § 7(a)(2) consultation with FWS regarding the effects of their Middle Rio Grande operations. (Id. at 5 n.1.) That consultation yielded FWS's 2003 Biological Opinion, which expired in 2013. (See Id. at 6 n.9.) As the 2003 Biological Opinion neared expiration, Corps sought to consult with FWS again. This time, however, Corps wanted to consult independently instead of combining the Middle Rio Grande actions of both Corps and Reclamation-that is, Corps wanted FWS to isolate and identify actions specific to Corps for which Corps is responsible. (See Id. at 5.)

         According to Corps, FWS initially agreed to consult solely on Corps-specific actions, and Corps and FWS consulted under that agreement. (Id. at 5-6; see also A.R. 000127.) In 2013, however, FWS apparently told Corps that “it could not honor its commitment to provide the Corps with an agency-specific [Biological Opinion].” (2014 Reassessment at 6; see also A.R. 000127.)

         This about-face prompted Corps to withdraw from consultation with FWS. (2014 Reassessment at 6; see also A.R. 000127.) In its letter to FWS withdrawing from consultation, Corps explained that it had received guidance from headquarters directing it to carefully review its legal requirements under § 7. (See A.R. 000128.) As a result, Corps planned to reassess its actions and legal obligations in the Middle Rio Grande. (See A.R. 000127.) Corps reserved the right to reinitiate consultation unless it found that its actions were wholly non-discretionary or part of the environmental baseline. (Id.)

         c. 2014 Reassessment.

         In reassessing its legal obligations in the Middle Rio Grande, Corps identified 13 actions that it undertakes and analyzed whether it had discretion over any of those actions. Because the information here is critically important in resolving this matter, the Court briefly summarizes Corps's discretion conclusions for each of the 13 actions.

         1. Determination of the Maximum Safe Channel Capacity.

         The first action that Corps identified was its responsibility, mandated in § 203 of the 1960 FCA, to determine the maximum safe channel capacity. (2014 Reassessment at 11.) Corps believed the maximum safe channel capacity was the maximum safe flow at Albuquerque, meaning the “maximum rate of flow that can be carried at the time in the channel of [the] Rio Grande through the middle valley without causing flooding of areas protected by levees or unreasonable damage to channel protective works . . . .” (See Id. at 11-12 (citing 1960 FCA §§ 203(a) and (c)).)

         Corps initially specified a maximum safe flow of up to 5, 000 cubic feet per second (cfs) at Albuquerque. (Id. at 12.) After experimentally increasing the flow and informally consulting with FWS, Corps increased the maximum channel capacity from 5, 000 cfs to 7, 000 cfs, which has remained the maximum safe channel capacity since 1996. (Id.)

         Though it acknowledged its previous informal consultation with FWS regarding the flow rate, Corps determined on reconsideration that since the 1960 FCA does not include permission to deviate for environmental reasons, the maximum safe flow turns only on engineering judgment. (See Id. at 13.) As such, Corps determined that it has no discretion to deviate for environmental purposes.

         2. Flood Control Operation.

         Another action Corps takes on the Rio Grande is flood control. This function was mandated by § 203 of the 1960 FCA, which states that “Cochiti Reservoir, Galisteo Reservoir, and all other reservoirs constructed by the Corps of Engineers as a part of the Middle Rio Grande project will be operated solely for flood and sediment control . . . .” (Id. at 13-14 (citing 1960 FCA § 203).) As mentioned, the 1960 FCA also provides that “the outflow from Cochiti Reservoir during each spring flood and thereafter will be at the maximum rate of flow that can be carried . . . without causing flooding of areas protected by levees or unreasonable damage to channel protective works.” 1960 FCA § 203(a). Section 203(b) goes on to say that Galisteo and Jemez Canyon Reservoirs are to release water “at the maximum rate practicable” during summer floods “or thereafter.” 1960 FCA § 203(b). Additionally, releases from July through October should also be “limited to the amounts necessary to provide adequate capacity for control of subsequent summer floods.” Id.

         Corps interpreted the above provisions of the 1960 FCA-including the “or thereafter” language-to mean that the stringent flood control provisions outlined in § 203 apply year-round. (See 2014 Reassessment at 13-15.) This meant that Corps should always operate the dams for flood control and release water at the maximum safe and practicable rate that complies with all Congressional commands. (See id.) Consistent with this interpretation, Corps repudiated its old practice of distinguishing between periods of summer storm floods and spring runoff for purposes of consulting with FWS, since, according to Corps, “Congress has mandated the same requirements for flood operation throughout the year.” (See Id. at 15.) Similarly, Corps turned away from its old practice of deviating from standard operations to prevent damage to nonprotected works-specifically, to protect a historic railroad bridge crossing and the adjacent spoil bank levee. (See Id. at 15-16.) According to Corps, Congress only allowed it to moderate water release to guard protected levees and channel protective works. (See Id. at 16.) In conclusion, Corps determined that its Middle Rio Grande operations must be run only for flood and sediment control and are so strictly regulated that Corps does not have sufficient discretion to require consultation. (See Id. at 16.)

         3. Release of Carryover Storage.

         After studying §§ 203(a) and (c) of the 1960 FCA, Corps determined that the questions of how it must retain water, when it must retain water, and how it can release retained water are all strictly regulated by the 1960 FCA. (See Id. at 18.)

         According to Corps, § 203(a) prevents Corps from releasing water from Cochiti during the months from July to October when there is more than 212, 000 acre-feet (ac-ft) of storage space and the inflow of water is less than 1, 500 cfs. (Id. at 16 (citing 1960 FCA § 203(a)).) Corps says this provision is “to prevent the diversion or depletion of water . . . that would otherwise have been delivered downstream to the State of Texas, but was detained by flood-control operation.” (Id. at 16-17.) Corps adds that this retention requirement typically applies when spring runoff water is still detained in Cochiti Lake into July and the flow at Otowi gage is less than 1, 500 cfs. (See Id. at 16.)

         Corps claims that a similar retention provision in § 203(b) governs carryover storage in Galisteo and Jemez Canyon Reservoirs. (Id. at 17.) Section 203(b) limits the release from Galisteo and Jemez Canyon Reservoirs from July through October to the amount necessary to leave sufficient space for subsequent summer floods. See 1960 FCA § 203(b). Galisteo Reservoir, Corps adds, has an unregulated outlet structure, which is physically unable to retain carryover storage, so the flow and retention provisions in 203(b) apply only to Jemez Canyon Reservoir. (See 2014 Reassessment at 17 n.41.)

         After the July through October period, Corps posits that the carryover water should be released from all dams as expeditiously as allowed, pointing to § 203(c) of the 1960 FCA, which requires that “all reservoirs will be evacuated completely on or before March 31 of each year . . . .” (See Id. at 17 (citing 1960 FCA § 203(c)).)

         Finally, the Rio Grande Compact Commissioner of either New Mexico or Colorado can require Corps to release carryover water at the maximum safe flow. (See Id. at 17-18 (citing 1960 FCA § 203(c)).)

         After considering and interpreting the above provisions, Corps concluded that it has insufficient discretion in its release of carryover storage to require consultation. (Id. at 18.)

         4. Flow Reduction to Inspect Abiquiu Dam Tunnel.

         Corps believes that it has an inherent, non-discretionary responsibility to maintain civil works structures authorized by Congress. (Id. at 19 (citation omitted).) Accordingly, Corps's position is that it does not need to consult with FWS about the fact of maintenance. (See id.) However, Corps acknowledges that it has discretion over the manner in which it conducts maintenance, and should consult with FWS if its current maintenance practices adversely affect endangered species. (See id.)

         To maintain Abiquiu Dam, Corps conducts periodic inspections of the outlet tunnel. (Id.) During the inspection, Corps must suspend releases from Abiquiu for about an hour while personnel are physically present in the tunnel. (See id.) These inspections usually occur during low flow periods in the winter, to minimize disruption, but could technically occur any time there is a structural or safety concern. (See id.)

         Since inspection of Abiquiu requires a decrease in discharge, the current maintenance practice potentially affects endangered species. (See id.) Though Corps had previously determined that the temporary suspension of discharge does not affect endangered species, the 2014 Reassessment recommended that Corps “verify or reevaluate the effects” of the suspension. (See id.) Only if the discharge suspension may affect endangered species or their critical habitats should Corps consult with FWS. (See id.)

         5. Flow Adjustment to Flush Jemez Canyon Dam Stilling Basin.

         There is a stilling basin downstream from the outlet of Jemez Canyon Dam. (Id. at 20.) Sediment collects in the basin, and Corps must flush the basin to prevent high flows from lapping over the basin's walls. (Id.) To flush the basin, Corps detains inflow for up to four or five days before releasing the detained water at a rate of about 600 cfs to rinse sediment from the basin. (Id.) This flushing operation is done when required, typically once or twice a year. (Id.)

         As with the inspection of the Abiquiu Dam tunnel, Corps believes that maintenance of the stilling basin is a nondiscretionary responsibility. (Id.) But the manner of flushing the basin, which decreases and then subsequently increases discharge, could affect organisms downstream. (Id.) The 2014 Reassessment recommended that Corps verify or reevaluate the effects of the flushing operation, and only consult with FWS if the operation may affect endangered species or their critical habitats. (Id.)

         6. Flow Reduction to Install and Remove Irrigation Outlet Gates at Cochiti Dam.

         There are two bulkhead outlet gates in the walls of a stilling basin below Cochiti Dam. (Id.) The outlet gates prevent any water from entering the canals during the non-irrigation season, and the gates are removed during the irrigation season. (See id.) When the gates are removed, fish sometimes enter the irrigation canal and die in the agricultural ditches and fields. (See Id. at 21.) To prevent this, fish screens are installed when the bulkhead gates are removed during the irrigation season, and then the fish screens are swapped out for the gates during the non-irrigation season. (See id.) The fish screens and bulkhead gates are submerged, so hydrostatic pressure prevents the exchange of the screens and gates unless Corps decreases the total release rate from Cochiti Dam from 150 to 100 cfs. (See Id. at 20.)

         In conducting the 2014 Reassessment, Corps unearthed a June 1967 Memorandum of Agreement that “outlined the rights and responsibilities of the Corps, Reclamation, and [the MRGCD] regarding . . . construction of new irrigation outlets in the Cochiti Dam stilling basin.” (See Id. at 21.) Corps claims that section four of the Memorandum of Agreement “makes it apparent that Reclamation-not the Corps-is ...


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