FWS Ignores Many Minnow Plan
Comments, Half-Answers Others

ALBUQUERQUE — The U.S. Fish and Wildlife Service received 47 letters concerning its draft recovery plan for the Rio Grande silvery minnow, an officially "endangered" species in the Rio Grande, but says it found it "impracticable" to respond to each issue raised by them.

The letters contained 175 pages of comments that agency personnel say were reviewed by their recovery team.

Jennifer Fowler-Propst, a field supervisor with the USFWS, did respond to some degree to several issues raised by New Mexico Secretary of Agriculture Frank Dubois.

Dubois questioned, for example, whether the recovery objective and criteria are measurable. Fowler-Propst says the recovery plan has been modified to include measurable criteria based on a moving five-year average of the silvery minnow's population densities as determined from samples taken each fall.

"The criteria also include a requirement to maintain adequate winter habitat to ensure that winter mortality rates do not significantly impact spring spawning densities," she says.

The initial criteria are based on population densities from samples in the San Acacia reach which will be applicable to all upstream reaches in the Middle Rio Grande, she adds.

Fowler-Propst says the criteria will be reevaluated during the monitoring process of the reestablished populations of the minnow.

Dubois also questioned the recovery plan with regard to a lack of social or economic concern. In response, Fowler-Propst says USFWS policy on recovery plan participation and implementation requires that the social and economic impacts be "minimized."

She contends the water required to maintain suitable minnow habitat would be acquired from "willing" sellers.

"It is assumed that the willing sellers would be compensated at going market rates," she says.

If diversion structures are to be removed, she adds, to allow the river to run and allow upstream migration of the minnow, alternative measures of supplying water in the same location, in the same amount and at the same time, would have to be provided. Who would be required to provide them and how they would be provided are not exactly clear.

The service has a policy, she says, of involving potentially affected parties in the development of recovery plans in order to minimize social and economic impacts with the recovery of the species.

She says a National Environmental Policy Act analysis, which she claims is not necessary as part of developing a recovery plan, will be completed as part of proposing a recovery plan.

Dubois also questioned whether New Mexico law would allow the acquisition of water or water rights to provide for instream flow for the protection of the minnow. Citing a New Mexico Attorney General's opinion of March 27, 1998, Fowler-Propst says there is nothing in the New Mexico state constitution or laws that would preclude the state engineer from approving an application to change the purpose or place of an existing water right to an instream purpose.

Whether those laws anticipated the state engineer being forced to make such changes is unclear.

In response to Dubois' question of whether the recovery efforts of the minnow will supersede existing water laws, court decisions and international treaties, Fowler-Propst says the Endangered Species Act requires cooperation to the "maximum extent practicable" with state laws.

The bottom line, it seems, is that the federals have no compunction against overruling state laws, court decisions or treaties once they have "cooperated" to the "maximum extent practicable" and still not achieved their goal.