The Endangered Art of Compromise
12:00 am
Mon June 4, 2012

"A Different Way of Going About This"

Unless you are an environmental lawyer or glutton for punishment, I'm not sure I would recommend reading this paper entitled The Rio Grande silvery minnow: 11 Years of Litigation.  But skimming it will surely give you a sense of why I describe the Middle Rio Grande Collaborative Program as a "turbulent marriage."

It will also help explain the impetus for a new and innovative collaboration (note the lower case "c") happening in southern New Mexico.  The audio clip here is from an interview with Audubon Society's Karyn Stockdale about the effort to preempt an extended silvery minnow-esque court battle in the Lower Rio Grande by working out water agreements in advance of potential listings stemming from last year's legal settlement.  You'll notice some echoes of the Conservation Agreement idea in here too. That is, using the threat of a listing as a way to spark cooperation.

For more information on the project, check out this article by Laura Paskus from the Utton Center's Environmental Flows Bulletin:

Conservationists and Irrigation District Blaze the Way on Water Transfers

In the lower Rio Grande in New Mexico, water managers and conservationists are working together to address endangered species issues, ensure farmers can earn a living, and create an innovative water transaction program.
“It’s a collaborative effort to increase habitat territory for the southwestern willow flycatcher that is sensitive to farmers’ water needs,” says Beth Bardwell, director of freshwater conservation for Audubon New Mexico. “It’s cool because we’ve found a way to walk together down this path.”
As part of a long-term project by the United States International Boundary and Water Commission to manage the Rio Grande Canalization Project—the 105-mile stretch between Percha Diversion Dam and the American Dam near El Paso—the commission has set aside funding for two projects, one dedicated to habitat restoration on five pilot project sites and the other to establish an environmental water rights transaction program.
That funding was granted to the U.S. Fish and Wildlife Service (FWS), which passed money for the water transactions project through the nonprofit National Fish and Wildlife Federation (NFWF). NFWF released a request for proposals, and awarded the contract to Audubon New Mexico.
In cooperation with the Elephant Butte Irrigation District, the nonprofits are seeking willing sellers, lessors, and donors of water rights—who will be compensated for water at the market rate. Having looked upriver to legal altercations between farmers and environmentalists in the Middle Rio Grande, farmers in the district did have their doubts, says Bardwell. The lower Rio Grande is fully adjudicated, and farmers worried the transactions might not be voluntary. For the program to work, farmers need to know they won’t incur liability under the Endangered Species Act if their water helps create new habitat for the endangered bird.
“They want assurances that in low water years, shortages will be shared,” she says, adding that the project’s partners are currently working with FWS to ensure that the agency’s Biological Opinion for the project will recognized shared shortages in low water years—something that, if adopted, would be a new management tactic.
Currently, there are one to seven breeding territories for the flycatcher within the project area during a given year. “The hope is that by restoring habitat below Elephant Butte, the number of breeding territories will increase to 25,” says Bardwell.
The amount of water that could be transferred represents somewhere between 0.5 to 1.5 percent of the irrigation district’s full supply—a relatively small amount. But that water could be used in different ways, says Bardwell: to flood irrigate a pilot site; to help restore a pilot site from salt cedar to riparian shrub; to use as environmental peak releases, which would ride atop springtime irrigation releases; or to offset a net increase in depletions from changes in plant communities at a restoration site. The water, she adds, is for restoration at up to 30 sites.
As project partners prepare to identify willing lessors and sellers in the coming year, the project may be put to the test as FWS revises its critical habitat designation for the endangered bird in an area that includes the Rio Grande from Caballo Dam to Leasburg Dam.
But Bardwell remains optimistic. The project’s partners have asked FWS to exclude that 46-mile reach from the critical habitat designation. By working together,
people are willing to be flexible, she says, and plenty of lessons have been learned upstream. “If we can use the Endangered Species Act to support flexibility, that may be as powerful—or more—as using the ESA as a hammer.”
The Rio Grande Water Transactions Program is modeled most closely on NFWF’s Columbia Basin Water Transactions Program, says Darvid Yardas, NFWF’s director of southwest and interior water programs.
Ten years ago, the Bonneville Power Administration began working with NFWF to manage a program that supports voluntary transaction to improve Columbia River flows in Idaho, Montana, Oregon, and Washington. According to NFWF, the Columbia Basin program has invested $27.5 million to secure more than 5.3 million acre feet of water for high-priority habitat and native fish populations.
Expanding that work to the “iconic rivers of the desert southwest” was obvious, Yardas explains in an email to Environmental Flows, especially because Audubon New Mexico and others were already laying the groundwork for a “cooperative environmental water transactions program” to address the water needs associated with riparian habitat restoration in the USIBWC’s Canalization Project.
“Early success and meaningful progress there might very well lead to other transactions-based opportunities in other parts of the Rio Grande watershed over time,” he adds, “however our priority is to help Audubon New Mexico get the current project up and running.”