In January 2013, the U.S. Fish and Wildlife Service (USFWS) designated nearly 1,300 miles of streams throughout the southwest  as critical habitat for this sweet looking bird, the Southwestern Willow Flycatcher. The area included land along the Rio Grande and Conejos Rivers in Colorado, as well as an area surrounding the upper part of Elephant Butte Reservoir in New Mexico.

The designation had some excited and others concerned that it could impact water availability within the Rio Grande Basin.  CFWE got the information wrong in our Rio Grande Compact story published in the latest issue of Headwaters magazine, we wrote “The USFWS could use the designation to require the delivery of more water downstream, beyond what is required under the compact.” Which is just not true… our most sincere apologies! You can read a correction in the article on our website– but if you’re interested in the designation, read more here, where we have room to elaborate.

Folks don’t necessarily know what the designation will mean in the future, but it will not directly affect the compact. The USFWS fact sheet on the topic says they were able to exclude all of the non-Federal lands in the San Luis Valley ‘in recognition of a history of proactive conservation’– 87 percent of lands proposed as critical habitat are covered by the San Luis Valley Regional Habitat Conservation Plan.

The people of the San Luis Valley spent time and money developing a Habitat Conservation Plan for the willow flycatcher prior to this designation. They were under the understanding that if they developed and implemented a strict conservation plan, the USFWS would not designate critical habitat in Colorado, says David Robbins attorney for the Rio Grande Water Conservation District. That’s the first reason why some in the San Luis Valley are upset about the critical habitat designation– they developed a plan but still face a critical habitat designation.

Of course, people in Colorado’s Rio Grande Basin developed the Habitat Conservation Plan not only because they wanted to do the best thing for the southwestern willow flycatcher, but also to avoid any conflict over the Rio Grande Compact. So where’s the nexus between critical habitat and water for the compact? Federal lands including the Alamosa National Wildlife Refuge and some parcels of BLM land were included in final critical habitat designation– those lands were not covered by the Conservation Plan and they’re Federal lands. From the USFWS:

In order to provide for more predictability and consistency in the designation of CH, we believe it appropriate as a matter of policy that we generally not exclude federal lands from a CH designation unless a national security or national defense issue is implicated.

The compact could intersect with critical habitat designation and individual water users anywhere there is a project with a federal nexus.  Some say somewhere within this nexus, the result will be that Colorado delivers more water downstream, which is not precisely true according to both the USFWS and Robbins. However, Robbins notes, without the critical habitat designation, there wouldn’t be any concern.

But, some level of consultation with the USFWS occurs with or without designated critical habitat.  If a project with a Federal nexus (i.e., authorized, funded, or carried out by a Federal agency) affects the flycatcher or its designated critical habitat, the lead Federal agency (such as BLM, US Army Corps of Engineers, Bureau of Reclamation, or Natural Resource Conservation Service) enters into consultation with the Service.  The lead Federal agency determines whether a project may affect the flycatcher or designated critical habitat.

The other concern around Colorado water for critical habitat comes from past experience on the Rio Grande with the silvery minnow in New Mexico. To protect the silvery minnow, the USFWS has required that federal agencies release water from federal dams to maintain instream flows for the minnow. More water for the minnow means that agriculture in central New Mexico suffers, while southern New Mexico and El Paso, Texas benefit– according to a New Mexico State University researcher. Water releases for the silvery minnow are made from Federal water projects– and many water users even in Santa Fe and Albuquerque depend on that Federal water. This, of course, does not equate to water for the southwestern willow flycatcher in Colorado, and there is no connection between conservation needs for the minnow and critical habitat for the flycatcher. In the San Luis Valley, there are two big federal projects, but the USFWS has stated that, “in no way can critical habitat designation for the flycatcher in Colorado force delivery of more water for silvery minnow habitat needs in New Mexico.”

“There are scenarios where that might occur, but they are not a guarantee… there are scenarios where that would not occur,” Robbins says. “It’s one of those ‘in the eye of the beholder’ statements.”

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