WildEarth Guardians v. United States of America et al
Filing
132
MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack DENYING IN PART 120 MOTION Olenhouse Motion for Reversal of Agency Action . Related document(s): 120 MOTION Olenhouse Motion for Reversal of Agency Action (yc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILDEARTH GUARDIANS,
Plaintiff,
v.
No. CIV 14-0666 RB/SCY
UNITED STATES ARMY CORPS
OF ENGINEERS,
Federal Defendant,
and
MIDDLE RIO GRANDE
CONSERVANCY DISTRICT,
Intervenor-Defendant.
MEMORANDUM OPINION AND ORDER
And Elijah the Tishbite, who was of the inhabitants of Gilead, said unto Ahab, [“]As 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,
1
The MRGCD was formed to consolidate water rights and facilitate irrigation in the Middle Rio Grande. Rio
Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1104 (10th Cir. 2010).
2
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.
3
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
4
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.)
5
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
6
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)).)
7
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.
8
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 yearround. (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
9
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
10
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,
11
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 responsible for operation (removal / installation)
of the two bulkhead gates to the irrigation canals.” (See id.)
Reevaluating its legal obligations in light of the information above, Corps determined
that its only action is the reduction in flow from Cochiti Dam to facilitate Reclamation or
MRGCD’s installation of fish screens or outlet gates. (See id. at 22.) Since Corps only performs
12
the flow reduction at Reclamation’s request to assist with Reclamation or MRGCD’s obligations,
Corps maintains that either Reclamation or MRGCD should be responsible for consultation
about the flow reduction. (See id. at 22–24.)
7. Delivery of Water to Offset Evaporation at Cochiti Lake.
Corps explains that the Flood Control Act of 1964 authorized a permanent pool of 1,200
acres (about 50,000 ac-ft) “for conservation and development of fish and wildlife resources and
for recreation . . . .” (Id. at 24 (citing 1964 FCA).) The 1964 FCA authorizes the Secretary of the
Interior to use San Juan-Chama Project water to fill the pool. (Id.) The 1964 FCA “also
mandated the delivery of ‘sufficient water annually to offset the evaporation’ from the permanent
pool . . . .” (Id. (citing 1964 FCA).) The water for offsetting evaporation comes from the San
Juan-Chama Project water stored in Heron Reservoir. (Id.)
Corps construes the commands of the 1964 FCA as requiring it to maintain a permanent
pool at Cochiti. (Id. at 25.) The manner in which the permanent pool is maintained, however, is
subject to consultation if it affects endangered species or their critical habitats. (Id.) Since
Reclamation is the proponent of sending San Juan-Chama water to Cochiti to replenish the
permanent pool and is currently engaged in consultation with FWS, Corps says that it will
“coordinate with Reclamation . . . so that they may re-characterize [the filling of Cochiti Lake
with San Juan-Chama water] as a Reclamation action . . . rather than as an interrelated and
interdependent Corps action,” as they had classified the action in previous years. (Id. at 24–25.)
8. Storage of San Juan-Chama Project Water in Abiquiu Reservoir.
Corps explains that the San Juan-Chama Act authorized the San Juan-Chama Project,
which is run by Reclamation and diverts water from upper tributaries of the San Juan River to
the Rio Grande basin. (Id. at 25.) Another law later authorized Corps to store San Juan-Chama
13
water in Abiquiu Reservoir. (Id. (citing P.L. 97-140).) Under P.L. 97-140, the “Secretary of
Interior (through Reclamation) is also authorized to deliver such water from Heron Reservoir to
[San Juan-Chama] Project water users who have agreements for storage with the Corps.” (Id. at
25–26.) Corps currently stores about 180,124 ac-ft of San Juan-Chama water at Abiquiu. (Id. at
72, Table 5.3.)
Users who have rights to San Juan-Chama water and contracts with Corps for storage
may call for their water. (See id. at 26.) Corps believes it must deliver San Juan-Chama water to
those parties on demand. (Id.) According to Corps, it “has no independent ownership rights,
authority, or discretion regarding release or water delivery,” and, as such, does not need to
consult over the storage or delivery of San Juan-Chama water. (Id. at 26–27.)
9. Storage of Rio Grande System Water in Abiquiu Reservoir.
Congress authorizes Corps to store up to 200,000 ac-ft of Rio Grande water at Abiquiu
Reservoir in lieu of San Juan-Chama water, to the extent that parties with rights to San JuanChama water do not require Corps to store the water at Abiquiu. (See id. at 28 (citing P.L. 100522).) Corps says that Abiquiu currently stores only San Juan-Chama water, and that “there are
no agreements for storage of Rio Grande system water,” so consultation is unnecessary. (See id.)
10. Hydropower Operation.
The County of Los Alamos constructed, operates, and maintains a run-of-the-river
hydroelectric power facility. (Id.) Any “releases below 2,500 cfs are diverted through the power
plant for generation of electricity.” (Id.) Corps does not release any water from Abiquiu Dam
specifically for the benefit of the power plant, and the power plant, as a run-of-the-river facility,
“has no impact on reservoir storage or releases.” (Id.) As such, Corps believes there is no Corps
action that requires consultation. (Id.)
14
11. Pass-Through Operation and Agency Coordination.
FWS has stated that Corps’s “standard procedures of passing all inflow unhindered when
not in flood control operation, as well as the Corps’[s] coordination with other water managers,
constituted interrelated and interdependent actions requiring ESA consultation.” (Id. at 29.) In
the 2014 Reassessment, Corps disagrees. (See id. at 30.)
Corps believes that, except for its unexercised authority to store Rio Grande system water
in Abiquiu Lake, it “has no authority to store or otherwise regulate [Rio Grande] water.” (See id.
at 29.) In allowing Rio Grande water to pass unhindered through its dams, Corps does not need
to take affirmative action for Jemez Canyon and Galisteo Dams, since those two dams “lack any
permanent water supply or recreation pools,” and “[s]treamflow simply passes through the open
outlet works up to the discharge that invokes flood control operation.” (See id.)
As for Abiquiu and Cochiti Dams, since they store San Juan-Chama water, the “outlet
gates at these dams must be adjusted, usually daily, to pass Rio Grande system water while still
retaining the precise volume of [San Juan-Chama] Project water in storage.” (Id.) Corps contends
that the outlet gate adjustment is simply the necessary product of its concurrent duties to
maintain a certain amount of San Juan-Chama water at Abiquiu and Cochiti Dams, and to pass
through, unhindered, the maximum allowable amount of Rio Grande water. (See id.) As such,
Corps believes the outlet gate adjustment is not a discretionary action that triggers consultation.
(See id.)
Corps also claims that “regular coordination and communication” among managers of the
many water management facilities “simply is a requirement of the complex management system
and cannot be construed as an action which, in and of itself, could affect a listed species or its
designated critical habitat.” (See id. (citing 50 C.F.R. § 402.02).) Corps adds that when another
15
water management agency—such as Reclamation or MRGCD—delivers Rio Grande water
downstream, that delivery cannot be considered an “interrelated or interdependent effect,” since
“[t]here is no action by the Corps that causes an effect relative to the ESA, interrelated or
otherwise.” (See id. (citing 50 C.F.R. § 402.022; Am. Rivers v. NOAA Fisheries, No. CV-0400061-RE, 2006 WL 1983178, at *3 (D. Or. July 14, 2006)).)
Corps believes that since the pass-through operations are nondiscretionary and passive,
and coordination and delivery of water downstream by another agency is not an interrelated or
interdependent action, FWS’s previous classification is incorrect, and Corps does not need to
consult over pass-through operations or agency coordination. (See id. at 30.)
12. Emergency Operation.
Section 203(d) of the 1960 FCA enables Corps to suspend the rules from the rest of the
statute if there is an emergency that affects the safety of major structures or endangers lives. (See
id. (citing 1960 FCA § 203(d)).) Corps reasons that since emergencies are by their nature
unexpected, it would not make sense to consult prior to an emergency. (Id.) In the event of an
emergency, Corps says proper procedure is to follow 50 C.F.R. § 402.05, a Corps regulation
covering emergencies. (Id.)
13. Effects of Sediment Retention.
Though “sediment control is an authorized purpose for all four Corps dams in the middle
Rio Grande basin,” Corps has not “purposely operated to detain sediment at [its] facilities” since
2001. (Id. at 31.) The dams, however, naturally collect sediment to some degree, and the pools of
water maintained at Cochiti and Abiquiu pursuant to the 1964 FCA, San Juan-Chama Act, and
P.L. 97-140 also trap sediment. (See id.) This sediment retention creates downstream channel
incision, which may affect the silvery minnow’s habitat. (Id.)
2
The Reassessment cites 50 C.F.R. § 152.02, but this is likely a typographical error.
16
Any effect on the silvery minnow, however, is incidental to the passive sediment
retention that occurs as Corps executes its statutorily-mandated duties. (See id.) Thus, Corps
determined that it does not need to consult on the sediment retention unless it takes affirmative
actions to retain sediment. (See id.)
In sum, Corps feels that it does not need to consult on 11 of 13 identified actions because
those actions are either non-discretionary, not Corps actions, or not applicable given certain facts
(e.g., unpredictable nature of emergencies or no Rio Grande water stored in Abiquiu Reservoir).
(See id. at 33–34.) Corps believes the remaining two actions, involving maintenance, are also
non-discretionary. (See id. at 33.) But the manner in which those actions are executed would
require consultation if the execution could affect endangered species or their habitats. (See id.)
LEGAL STANDARD
A court overturns an agency’s action only if the action is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” Wyoming v. U.S. Dep’t of Agric., 661
F.3d 1209, 1227 (10th Cir. 2011) (citing 5 U.S.C. § 706(2)(A)). The agency action enjoys a
presumption of validity, and it is the burden of the party petitioning the Court to overturn agency
action to prove that such action is arbitrary or capricious. See id. To prove an agency action to be
arbitrary or capricious, the petitioner must prove that the agency relied on factors that Congress
did not intend for it to consider, “entirely failed to consider an important aspect of the problem,”
gave an explanation that contradicts the evidence before the agency, or that the agency’s
rationale was so implausible that it “could not be ascribed to a difference in view or the product
of agency expertise.” Id.
17
DISCUSSION
The 2014 Reassessment is the lynchpin of Corps’s conclusion that it has no discretion
over its Middle Rio Grande operations—and its subsequent refusal to initiate § 7(a)(2)
consultation. As the Reassessment was the reason behind Corps’s actions, whether Corps acted
arbitrarily, capriciously, in abuse of its discretion, or in violation of the law depends heavily on
the validity of the 2014 Reassessment.
I. The 2014 Reassessment is not post-hoc rationalization.
Inexplicably, Guardians did not even mention the 2014 Reassessment in its brief accusing
Corps of reaching an arbitrary decision on its discretion in the Middle Rio Grande. (See Doc.
120.) After Corps highlighted Guardians’s omission, Guardians claimed that it did not need to
consider the Reassessment. (See Doc. 126 at 6 n.2.) According to Guardians, since Corps broke
off consultation with FWS in 2013 and did not issue the Reassessment until 2014, the
Reassessment was not the real reason behind the termination of consultation. (See id.)
But a review of Corps’s letter to FWS terminating consultation undermines Guardians’s
argument. In its letter terminating consultation, Corps said that it was withdrawing from
consultation because its headquarters had instructed it to scrutinize its ESA obligations, and
because FWS was unwilling to identify Corps-specific actions in the Rio Grande. (See A.R.
000127–28.) The letter explains that Corps was going to reevaluate its actions and legal
obligations in the region. (See A.R. 000127.) If Corps found that it had discretion to deviate in its
actions, it was willing to reinitiate consultation. (See id.)
Given Corps’s letter, the Court concludes that the 2014 Reassessment is the real reason
why Corps is not currently consulting with FWS. Corps clearly referenced an upcoming
reevaluation of its actions and legal obligations when it terminated consultation, so the
Reassessment was unlikely to have been created solely for purposes of litigation. And the
18
Reassessment was also the source of many of Corps’s arguments in this litigation, arguments that
Guardians has been all-too-happy to dispute. Where did Guardians think those arguments came
from? Finally, Corps held open the possibility of reinitiating consultation, so Corps’s present,
ongoing refusal to consult can fairly be attributed to the 2014 Reassessment.
II. The Court gives the 2014 Reassessment Skidmore deference where Corps interprets
legislation.
In its Reassessment, Corps pondered many considerations, including factual ones. (See,
e.g., 2014 Reassessment at 17 n.41.) But the primary thrust of Corps’s analysis was driven by its
interpretation of statutes.
a. The law of deference to agency interpretation of statutes.
In judging Corps’s interpretation of statutes, the Court must first determine how much
deference to give Corps’s interpretation.
Under Chevron deference, a court defers “to an agency’s interpretation of a statute that it
is responsible to implement if (1) the statute is ambiguous or silent as to the issue at hand and (2)
the agency’s interpretation is neither ‘arbitrary, capricious, [n]or manifestly contrary to the
statute.’” Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir. 2010) (quoting Herrera-Castillo v.
Holder, 573 F.3d 1004, 1007 (10th Cir. 2009)). Chevron deference is warranted if “‘Congress
delegated authority to the agency generally to make rules carrying the force of law,’ and the
agency’s interpretation of the statute was issued pursuant to that authority.” Id. at 1096–97
(citing United States v. Mead Corp., 533 U.S. 218, 226–27 (2001)). Usually, a binding
interpretation warranting Chevron deference is created through adjudication or notice-andcomment rulemaking. See id. at 1097 (citing Mead, 533 U.S. at 226–27).
In some cases, however, an agency’s interpretation can receive Chevron deference even
when it is not the result of adjudication or notice-and-comment rulemaking. See WildEarth
19
Guardians v. Nat’l Park Serv., 703 F.3d 1178, 1188 (10th Cir. 2013) (citing Barnhart v. Walton,
535 U.S. 212, 222 (2002)). In those cases, the “agency’s expertise, the importance of the
question to the agency’s administration of the statute, and the degree of consideration the agency
has given the question” convince the Court that Chevron deference is otherwise appropriate. Id.
(citing Barnhart, 535 U.S. at 222).
But most times, if an agency creates a non-binding interpretation outside of adjudication
or notice-and-comment rulemaking, such interpretation is given Skidmore deference. See
Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (explaining that agency interpretations
“contained in policy statements, agency manuals, and enforcement guidelines” created without
notice-and-comment rulemaking or adjudication lack the force of law and receive Skidmore, not
Chevron, deference). How much respect a court gives an agency’s interpretation under Skidmore
deference depends on factors such as “the thoroughness evident in [the agency’s] consideration,
the validity of [the agency’s] reasoning, [and the agency’s] consistency with earlier and later
pronouncements . . . .” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Ultimately, a court
gives an agency as much deference under Skidmore as the agency’s interpretation has power to
persuade. Carpio, 592 F.3d at 1098 (“The paramount consideration is whether the [agency’s]
decision has ‘the power to persuade.’”) (quoting Skidmore, 323 U.S. at 140).
b. The parts of the 2014 Reassessment that interpret statutes receive Skidmore
deference.
The 2014 Reassessment was not the product of notice-and-comment rulemaking or
formal adjudication. It only made recommendations regarding consultation with FWS, (see 2014
Reassessment at 34–35), and Guardians has not alleged that Corps is bound by the Reassessment.
Consequently, the parts of the Reassessment that interpret statutes appear to be non-binding
agency interpretations subject only to Skidmore deference. See Christensen, 529 U.S. at 587.
20
Though Corps argued that Chevron deference applies in this case, (see Doc. 124 at 22–
23), Corps has not explained why its expertise, the importance of the question, or the degree of
its consideration should overcome the presumption of Skidmore deference.3 Skidmore is
therefore the proper level of deference to give the parts of the 2014 Reassessment that analyze
statutes.
III. The parts of the 2014 Reassessment that analyze statutes are persuasive.
The central question under Skidmore deference is whether Corps’s interpretations of law
have the power to persuade.
a. The parts of the 2014 Reassessment analyzing statutes are persuasive because of
their procedural validity.
In deciding the persuasiveness of an agency’s interpretation of law, courts can examine
procedural hallmarks of persuasiveness, such as the thoroughness evident in the agency’s
interpretation, the agency’s care in determining a solution, or whether the agency leverages its
expertise. See Carpio, 592 F.3d at 1098 (citations omitted).
Here, Corps was meticulous and thorough. Instead of indiscriminately combining all its
Middle Rio Grande actions together, as Guardians does, Corps painstakingly identified the
specific actions for which it is responsible. Corps then examined whether it had discretion for
each action. In doing so, Corps looked to caselaw (for example, citing Am. Rivers v. NOAA
Fisheries), (see 2014 Reassessment at 29); statutes (for example, parsing the text of the 1960
FCA), (see id. at 13); and its own expertise (for example, noticing that Galisteo Reservoir, as an
unregulated outlet structure, is physically incapable of retaining carryover storage), (see id. at 17
3
Guardians’s position on deference is unclear. (Compare Doc. 120 at 46 (Guardians’s opening brief) (explaining
that Chevron governs), with Doc. 126 at 9–10 (Guardians’s reply brief) (rejecting Chevron and arguing that
Skidmore applies).)
21
n.41). The Court is convinced that Corps’s 2014 Reassessment was the result of thorough,
careful, and expert analysis.
b. The parts of the 2014 Reassessment analyzing statutes are persuasive because of
their substantive validity.
The persuasiveness of an agency’s interpretation also depends on the interpretation’s
substantive validity. See Carpio, 592 F.3d at 1098 (citations omitted). Corps’s consultation
opinion regarding its flood control, release of carryover storage, pass-through procedures, and
emergency operations, as well as its determination of the channel capacity, (Reassessment action
numbers 1–3, 11–12) is largely driven by its analysis of the 1960 FCA. Corps’s consultation
opinion regarding its creation and maintenance of permanent pools at Abiquiu and Cochiti
(Reassessment action numbers 7 and 8) is largely based on its interpretation of P.L. 97-140, the
1960 FCA, and the 1964 FCA. The Court will address each cluster of activities in turn.
1. Flood control, carryover storage release, pass-through procedures, emergency
operations, and determination of channel capacity (Reassessment action
numbers 1–3, 11–12).
The 1960 FCA provides that “all . . . reservoirs constructed by the Corps . . . as a part of
the Middle Rio Grande project will be operated solely for flood control and sediment control.”
1960 FCA (emphasis added). The 1960 FCA goes on to specify a strict operating schedule, such
as “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 . . . .” Id. Corps may not depart from
the operating schedule except in certain limited emergencies or with the advice and consent of
the Rio Grande Compact Commission. See id.
The 1960 FCA also squarely addresses fish and wildlife concerns: Corps may establish
“permanent pools for recreation and fish and wildlife propagation,” but the water to fill those
22
pools must be “obtained from sources entirely outside the drainage basin of the Rio Grande.” See
id. In the 1964 FCA, Congress authorized Reclamation to send San Juan-Chama water to fill and
maintain the permanent pool. See 1964 FCA.
Corps’s position, then, is that the FCAs entirely stifle its ability to deviate in its
operations: it is directed to only consider flood and sediment control; Congress explicitly
provided a way to deal with environmental issues in the statutes; and Corps’s operations must
follow a strict schedule, with deviations permitted only in limited situations outside its control.
Under these conditions, and keeping in mind that all four dams must be operated in a coordinated
manner, and that Corps cannot upset the fragile equilibrium of water rights protected by various
contracts and the Rio Grande Compact, Corps believes it does not have sufficient discretion to
necessitate § 7(a)(2) consultation. This conclusion is bolstered by the Supreme Court’s ruling in
National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007).
In Home Builders, the Supreme Court grappled with how to reconcile the Clean Water
Act with the ESA. See id. at 649. While § 402(b) of the Clean Water Act requires the
Environmental Protection Agency (EPA) to “transfer certain permitting powers to state
authorities upon an application and a showing that nine specified criteria have been met,”
§ 7(a)(2) of the ESA appeared to add an additional requirement of consulting with the designated
federal agency prior to taking an action that could jeopardize any endangered species or its
habitat. See id. Home Builders noted that § 402(b) “operated as a ceiling as well as a floor”—the
ceiling is the fact that the EPA may only consider nine specified criteria, and the floor is the fact
that the EPA may not consider fewer criteria than the nine listed. See id. at 646. Adding the laterenacted § 7(a)(2)’s consultation requirement would “raise the floor” and “effectively repeal
23
§ 402(b)’s statutory mandate by engrafting a tenth criterion onto the [Clean Water Act].” Id. at
646, 663.
Refusing to find such an implicit repeal and modification without “clear and manifest”
legislative intent, Home Builders approved regulation 50 C.F.R. § 402.03, which makes the ESA
applicable only to agency actions that result from agency discretion. Id. at 665. Since § 402(b)
required the EPA to transfer permitting power when nine enumerated criteria were satisfied, the
EPA had no discretion to “add another entirely separate prerequisite to that list,” so the EPA was
not required to consult under § 7(a)(2). See id. at 671.
Likewise, here the later-enacted ESA cannot implicitly repeal and modify the 1960 FCA.
For example, § 203(b) of the 1960 FCA sets a ceiling and a floor for the amount of water
Galisteo and Jemez Canyon Dams can release during certain months:
Releases of water from Galisteo Reservoir and Jemez Canyon Reservoir during
the months of July, August, September, and October, will be limited to the
amounts necessary to provide adequate capacity for control of subsequent summer
floods; and such releases when made in these months, or thereafter, will be at the
maximum rate practicable under the conditions at the time.
1960 FCA § 203(b). This means that from July through October, Corps cannot release more
water than necessary to control summer floods—a ceiling—and Corps cannot release less water
than the maximum rate practicable—a floor. Corps basically has no discretion on water release at
Galisteo and Jemez Canyon during those months. The ESA cannot implicitly raise the FCA’s
ceiling by forcing Corps to release more water than the amount necessary to control summer
floods, just as the ESA cannot lower the floor by forcing Corps to release less than the maximum
amount of water practicable under the conditions at the time.
As another example, the 1960 FCA mandates that Corps pass Cochiti Reservoir water
downstream during each spring flood at the “maximum rate of flow that can be carried at the
time . . . without causing flooding of areas protected by levees or unreasonable damage to
24
channel protective works.” See 1960 FCA § 203(a). This, too, means Corps has no discretion on
how much water to release: it cannot release less water than the maximum rate of flow that can
be carried at the time—the floor—and it cannot release so much water that it causes
impermissible flooding or damage—the ceiling. The ESA cannot implicitly rewrite this provision
by either allowing Corps to release less water than the maximum rate of flow, or allowing Corps
to release so much water that prohibited consequences occur.
A few more examples: the 1960 FCA tells Corps that it may run its Middle Rio Grande
operations “solely for flood control and sediment control.” See 1960 FCA § 203 (emphasis
added). The ESA cannot implicitly delete the word “solely” and rewrite the provision to allow
Corps to operate for flood control, sediment control, and fish and wildlife development. And
while the 1960 FCA allows for deviations from the operating schedule, the enumerated
permissible deviations—with the consent of the Rio Grande Compact Commission and in case of
emergency—have nothing to do with the environment. See id. The ESA cannot implicitly repeal
and rewrite the 1960 FCA to add another reason to deviate from the strict operating schedule.
It appears that Home Builders is directly on point, and Guardians does nothing to
convince the Court otherwise. Rather than discussing ceilings, floors, or implicit modification of
existing law, Guardians only attempts to distinguish Home Builders by offering an unhelpful,
circular assertion:
In [Home Builders], the substantive statute at issue divested the U.S.
Environmental Protection Agency of all discretionary authority. In this case on
the other hand, as explained in Guardians’ Opening Brief and in this Reply Brief,
the Corps does have discretionary authority to modify its MRG Project operations
for the benefit of the minnow and flycatcher. Accordingly, those aspects of the
[Home Builder] decision which deal with circumstances where agencies have no
statutory discretion whatsoever are not applicable here.
25
(Doc. 126 at 26.) Essentially, Guardians assures the Court that Home Builders is distinguishable
because Corps has discretion, and Corps has discretion because Home Builders is
distinguishable. Not compelling.
Far from being arbitrary or capricious, the parts of the 2014 Reassessment that analyze
the 1960 FCA are substantively persuasive. Though the Court found at the motion-to-dismiss
stage that Corps “retains some flexibility in its reservoir operations in the Middle Rio Grande,”
(Doc. 69 at 12), this conclusion was made while giving Guardians the benefit of the doubt at a
macro-level, without diving into the specifics of the statutes or Corps’s interpretations. Upon
closer review, the Court finds that insisting on § 7(a)(2) consultation for Corps’s flood control,
carryover storage release, pass-through operations (including necessary adjustments to Abiquiu
and Cochiti outlet gates), emergency operations, or determination of channel capacity would
allow § 7(a)(2) to implicitly repeal and rewrite the 1960 FCA.
2. Creation and maintenance of pools at Abiquiu and Cochiti (Reassessment
action numbers 7 and 8).
Regarding Abiquiu, Congress allowed Corps to contract with parties who have San JuanChama water rights—pursuant to the San Juan-Chama Act—for storage of up to 200,000 ac-ft of
that water in Abiquiu Reservoir. See P.L. 97-140. Reclamation releases the San Juan-Chama
water to Corps for storage. See id. Parties with rights to San Juan-Chama water who contract
with the Corps for storage may demand that Corps release their water to them at any time. (2014
Reassessment at 26.)
Given the above, Corps believes it has insufficient discretion in the storage and release of
San Juan-Chama water at Abiquiu Dam to require § 7(a)(2) consultation, and the Court agrees.
Corps is merely holding water for people with rights to that water, and Corps must release that
water on demand pursuant to its contracts. To say that Corps has discretion to store or release
26
San Juan-Chama water at Abiquiu for environmental purposes would be to implicitly modify and
repeal the San Juan-Chama Act or P.L. 97-140, in contravention of Home Builders.
Regarding Cochiti Dam, the 1960 and 1964 FCAs authorized a permanent pool of 1,200
acres for “conservation and development of fish and wildlife resources and for recreation.” See
1960 FCA § 203(e); 1964 FCA. The 1964 FCA authorizes the Secretary of the Interior to use
San Juan-Chama water to fill the pool, with the addition of “sufficient water annually to offset
the evaporation.” See 1964 FCA. Guardians has not claimed that the pool is discretionary, and,
given the 1960 and 1964 FCAs, the Court believes Corps is right in saying that the only action
subject to consultation is the delivery of San Juan-Chama water to replenish Cochiti after
evaporation—an action for which Reclamation is already consulting with FWS.
IV. The remainder of the 2014 Reassessment.
a. Sediment Retention (Reassessment action number 13).
Corps identified sediment retention as an incidental effect of its dam operations and its
maintenance of the permanent pools at Abiquiu and Cochiti. (2014 Reassessment at 31.)
Guardians does not challenge this factual assertion. Since, as explained above, Corps’s dam
operations are not discretionary, nor are its duties to maintain pools at Abiquiu and Cochiti,
Corps is not arbitrary or capricious in deciding that it does not need to consult about incidental
effects of those non-discretionary actions.
b. Inter-agency coordination (Reassessment action number 11).
Corps notes that the water management agencies in the Rio Grande communicate and
coordinate with each other. (Id. at 29.) This communication, Corps points out, is just a necessary
result of having multiple agencies regulate water in the same geographic area. To require
consultation over communication, Corps adds, would cause even the “mere scheduling of a
meeting among agencies [to] require consultation.” (See id.) Corps is reasonable, not arbitrary or
27
capricious, in believing that the referenced coordination and communication does not trigger
consultation.
c. Non-Corps actions.
1. Hydroelectric power (Reassessment action number 10).
Corps says that the County of Los Alamos constructed, operates, and maintains a run-ofthe-river hydroelectric power facility. (Id. at 28.) Corps claims that it does not release any water
specifically for the benefit of the power plant, and that the facility does not impact reservoir
storage or releases. (Id.) Accepting Corps’s unchallenged factual assertions, the Court finds that
Corps is not arbitrary or capricious in believing that there is no Corps action to require
consultation.
2. Flow reduction to install and remove irrigation outlet gates at Cochiti Dam
(Reassessment action number 6).
Corps says that it had decreased the release at Cochiti Dam to assist the installation and
removal of fish screens and bulkhead gates at a stilling basin below Cochiti. (Id. at 21.)
However, during its reassessment, Corps discovered a June 1967 Memorandum of Agreement
between Reclamation, the MRGCD, and Corps that identifies Reclamation or the MRGCD as the
party responsible for maintenance and operation of the outlet gates. (See id. (citing A.R.
000101).) As such, Corps concluded that either Reclamation or the MRGCD is responsible for
consultation over any necessary flow reduction. After reviewing the referenced memorandum,
the Court finds that Corps reasonably believes there is no Corps action here to necessitate
§ 7(a)(2) consultation.
d. Maintenance (Reassessment action numbers 4 and 5).
Citing an internal memorandum, Corps explains its view that it has an inherent, nondiscretionary responsibility to maintain civil works structures authorized by Congress. (Id. at 19.)
28
Part of its maintenance operations includes inspecting Abiquiu Dam tunnel and clearing
accumulated sediment in the Jemez Canyon Dam stilling basin. (Id. at 19–20.) Corps believes
that since there is no discretion in whether to maintain these structures, there is no need to
consult over their maintenance. Guardians has not challenged the internal memorandum, and the
Court finds Corps’s reasoning to be reasonable—if Congress authorizes an agency to operate a
structure, then absent any other guidance, a reasonable presumption is that the agency should
maintain the structure as well.
Though maintenance may not be discretionary, there is discretion in how to conduct
maintenance. (Id. at 19.) If the manner in which maintenance is conducted may affect
endangered species or their critical habitats, consultation over the manner of maintenance is
necessary. (Id.) The 2014 Reassessment recommended that Corps verify or reevaluate the effects
of its maintenance operations to ensure that there is no effect on endangered species or their
critical habitats. (See id. at 19–20.)
It is unclear whether Corps is consulting over its maintenance operations, and, if not,
whether Corps has verified the effects of such operations, as the 2014 Reassessment suggested.
Thus, on maintenance operations, the Court will reverse and remand to Corps for clarification
and explanation. See Home Builders, 551 U.S. at 657 (explaining that the proper course of action
upon a finding of arbitrariness or capriciousness is to remand to the agency for explanation).
V. Corps does not need to consult on hypothetical actions.
Section 7(a)(2) consultation duties only apply to agency “actions.” See 16 U.S.C. § 1536.
Guardians takes a broad view of “action,” arguing that because Corps engages in operations,
generally, in the Middle Rio Grande, Corps triggers § 7(a)(2). (See Doc. 126 at 20.) Corps takes
a more narrow view of action, arguing that only affirmative actions count for § 7(a)(2). (See Doc.
124 at 20–21.)
29
WildEarth Guardians v. United States EPA, 759 F.3d 1196 (10th Cir. 2014) defines what
counts as an “action” that triggers § 7(a)(2). In Guardians, the EPA introduced a plan to regulate
emissions from a power plant in New Mexico. Id. at 1198. Guardians argued that the EPA had to
consult with FWS because the EPA’s plan did not cover the emission of mercury and selenium,
which Guardians alleged the EPA had the power to regulate. See id. at 1207. The Guardians
Court assumed that the EPA did have power to regulate mercury and selenium, but the Court
found that choosing not to exercise a power does not constitute an “action” that triggers
§ 7(a)(2). So only affirmative actions, not actions that an agency declines to take, trigger
§ 7(a)(2) duties.
The 2014 Reassessment revealed, and the Court noted at the motion-to-dismiss stage, that
Corps’s Middle Rio Grande operations include many affirmative actions. (Doc. 69 at 10–11.)
Guardians is free to argue that Corps has discretion over those actions. Guardians may not,
however, lump all of Corps’s actions together as “operation of [the Middle Rio Grande] Project”
and then claim that because Corps has the ability to take unspecified actions, Corps must consult.
(See Doc. 126 at 20.) Apart from a vagueness problem, Guardians’s approach also conflates
action and discretion. One corollary of the Tenth Circuit’s Guardians decision is that action
comes before discretion: The analysis begins with an examination of whether there is an
affirmative action. If so, then the parties analyze whether an agency has discretion over that
action. If an agency has discretion to take an action but refrains from doing so, that does not
count as both action and discretion under § 7(a)(2). Otherwise, the Guardians Court would have
made the EPA consult.
Corps is thus correct on its decision not to consult about the storage of Rio Grande water
in Abiquiu (Reassessment action number 9). As explained above, Corps may store up to 200,000
30
ac-ft of Rio Grande water at Abiquiu, to the extent that contracting parties no longer require
Corps to store San Juan-Chama water there. See P.L. 100-522. Since Corps currently only stores
about 180,000 ac-ft of San Juan-Chama water at Abiquiu, Corps could still store about 20,000
ac-ft of Rio Grande water. But Corps has no plans to store Rio Grande water in Abiquiu, (see
2014 Reassessment at 28), and under Guardians, Corps cannot be forced to consult on its
discretionary decision not to take an action.
VI. Guardians is not persuasive in arguing that Corps’s decision on discretion is otherwise
arbitrary or capricious.
Guardians advances six arguments to support its contention that Corps’s decision on its
discretion in the Middle Rio Grande is arbitrary or capricious. None of them are persuasive.
(1) The plain language of the 1948 and 1960 FCAs do not “make clear” that
Congress authorized Corps to conduct Middle Rio Grande operations for the
benefit of the minnow and flycatcher.
Guardians contends that the “plain language” of the 1948 and 1960 FCAs “makes clear”
that Congress authorized Corps to conduct operations for the benefit of the minnow and
flycatcher. (Doc. 120 at 48.) This contention is based on three premises: (1) Corps originally
wrote in a report to Congress that authorized purposes of the Middle Rio Grande Project should
include “fish and wildlife development,” (2) Congress relied on Corps’s report in authorizing the
Middle Rio Grande Project in the 1948 and 1960 FCAs, and (3) in the FCAs, Congress said that
Corps could deviate from the operating schedule with the consent of the Rio Grande Compact
Commission. (See id. at 20–28.)
Unfortunately for Guardians—and despite its reference to the “plain language” of
statutory text—the meat of its argument has little to do with the language of the 1948 and 1960
FCAs. The 1948 FCA says that except with the consent of the Rio Grande Compact
Commission, “all reservoirs constructed as a part of the project shall be operated solely for flood
31
control . . . .” See 1948 FCA (emphasis added). Though Congress passed the 1948 FCA to
approve Corps’s report, the approval was limited to the extent the 1948 FCA comported with the
report. Any part of Corps’s report that was inconsistent with the FCA was not approved. See id.
Over a decade later, Congress in the 1960 FCA added sediment control—not fish and
wildlife development—to the authorized purposes, saying the Middle Rio Grande facilities “will
be operated solely for flood control and sediment control . . . .” 1960 FCA § 203 (emphasis
added). And to leave no doubt that it had considered the issue, Congress in the 1960 FCA also
expressly addresses fish and wildlife development, saying that Corps may create permanent
pools with non-native water.
To the extent Guardians believes that Corps has discretion in its operations because it
may deviate from the operating schedule with the permission of the Rio Grande Compact
Commission, that belief is misguided. Taking Guardians’s argument to its logical conclusion
would mean that every agency has “discretion” to take any constitutional action. After all, any
agency could take any constitutional action if it just secured permission from Congress. The EPA
in Home Builders could have, with Congressional approval, added a tenth criterion before
transferring permitting power to Arizona. Should it have undertaken § 7(a)(2) consultation? This
is not a case where a federal agency was granted unilateral discretion by statute, but chose to
contract away that discretion to skirt § 7(a)(2) duties. Here, it was Congress that took away
Corps’s discretion by requiring Corps to seek permission before making any deviation.
Simply put, the words of the 1948 and 1960 FCAs do not convince the Court that Corps’s
decision on its discretion is arbitrary or capricious.
32
(2) The Fish and Wildlife Coordination Act of 1958 and the 1986, 1990, and 1996
Water Resources Development Acts do not show that Corps’s decision about its
discretion over its operations is arbitrary or capricious.
Guardians posits that the Fish and Wildlife Coordination Act of 1958 (FWCA), 16 U.S.C.
§ 662, and the 1986, 1990, and 1996 Water Resources Development Acts (WRDAs), 33 U.S.C.
§§ 2294, 2316, and 2330(a), authorize Corps to deviate for the benefit of the minnow and
flycatcher. (See Doc. 120 at 7–9.) While the FWCA and the WRDAs do enable Corps to study
and implement modifications that may benefit fish and wildlife, there is a caveat that any
changes should not conflict with original project purposes:
Federal agencies authorized to construct or operate water-control projects are
authorized to modify or add to the structures and operations of such projects . . .
provided, That for projects authorized by a specific Act of Congress before the
date of enactment of the [FWCA] (1) such modification or land acquisition shall
be compatible with the purposes for which the project was authorized . . . .
16 U.S.C. § 662(c).
Corps takes the position that deviating from the “statutorily-prescribed operations” would
“undermine the carefully-crafted provisions of the 1960 FCA . . . .” (Doc. 124 at 28.) This is a
sensible position since there are many provisions in the 1960 FCA that operate both as a ceiling
and a floor. Given the caveat that agencies not take actions that conflict with authorized project
purposes, Corps reasonably believes it has no discretion over its Middle Rio Grande operations.
Furthermore, “[i]t is a commonplace of statutory construction that the specific governs
the general.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012)
(citation omitted). This general-specific canon is “particularly true where . . . ‘Congress has
enacted a comprehensive scheme and has deliberately targeted specific problems with specific
solutions.’” See id. (citation omitted). Congress in the 1960 FCA enacted a comprehensive
scheme to control Middle Rio Grande operations, and Congress has squarely addressed the issue
of fish and wildlife development within the scheme. To the extent there are contradictions
33
between the FWCA, the WRDAs, and the 1960 FCA as to how operations should be run, the
1960 FCA controls unless Guardians can point to “textual indications that point in the other
direction.” See id. at 646–47. Though Guardians claims that Congress’s “specific purpose” in
passing the FWCA and WRDAs was to supplement existing laws that were environmentally
lacking, (see Doc. 126 at 17), Guardians fails to sufficiently support this assertion and convince
the Court that the FWCA and WRDAs were supposed to override any conflicting legislation.
And Guardians’s argument that applying the general-specific canon would lead to an
“irrational result,” (see id. at 18), betrays its misunderstanding of Corps’s argument. Corps is not
arguing that because there is some specific purpose animating water control projects, the FWCA
and WRDAs should never apply. Rather, Corps is arguing that the 1960 FCA by its terms leaves
no room for the application of the FWCA and WRDAs, and the 1960 FCA deliberately
articulated its own way of dealing with environmental issues. In this instance, the specific
provisions governing the specific operation in the specific geographic area controls over
conflicting statutes of general applicability.
The FWCA and WRDAs do not convince the Court that Corps was arbitrary or
capricious in deciding that it has insufficient discretion over its Middle Rio Grande operations to
require § 7(a)(2) consulting.
(3) The caselaw does not show that Corps’s decision on its discretion is arbitrary or
capricious.
Guardians asserts that “courts have routinely construed Corps’[s] discretionary
authorities to include the authority to modify project operations . . . so long as the modified
operations are not inimical to pursuit of the originally enumerated project purposes.” (Doc. 120
at 48.) But Corps reasonably believes that modifying its operations for the benefit of the minnow
34
and flycatcher would be inimical to original project purposes. Additionally, the cases Guardians
cites are neither binding nor on point.
Many cases Guardians cites are inapposite simply because they deal with a different
flood control project, governed by different statutory rules. Miccosukee Tribe of Indians of Fla.
v. United States, 716 F.3d 535 (11th Cir. 2013) held that Corps is permitted to deviate for fish
and wildlife purposes when administering the Central and Southern Florida Project for Flood
Control in the Everglades. Id. at 536. But one of the authorized purposes for the Everglades
project is “maintaining fish, wildlife, and marsh vegetation,” id. at 541 n.9, whereas here, the
only authorized purposes are flood and sediment control. And Corps is permitted in the
Everglades project to “modify the schedule for delivery of water,” see id. at 541 n.8, whereas
here, Corps is constrained by a detailed operating schedule set by Congress.
Further, Guardians contends that In re: Operation of the Missouri River System, 363 F.
Supp. 2d 1145 (D. Minn. 2004), American Rivers v. U.S. Army Corps of Engineers, 271 F. Supp.
230 (D.D.C. 2003), and Missouri v. Dep’t of the Army, 526 F. Supp. 660 (W.D. Mo. 1980)
demonstrate that Corps has ample discretion to implement changes to operations for
environmental purposes. But those cases involved a different Flood Control Act, the Flood
Control Act of 1944, Pub. L. No. 78-534, 58 Stat. 887 (1944) (the “1944 FCA”), which
authorized Corps to consider “other purposes” in addition to navigation and flood control. See S.
Dakota v. Ubbelohde, 330 F.3d 1014, 1020 (8th Cir. 2003) (explaining that the 1944 FCA
recognizes secondary purposes like fish and wildlife propagation). In contrast, the FCAs dealing
with Middle Rio Grande operations explicitly say that only flood and sediment control are
authorized purposes.
35
Other cases Guardians relies on do not deal with the question at issue. Guardians cites
Raymond Proffitt Found. v. U.S. Army Corps of Engineers, 343 F.3d 199 (3d Cir. 2003) and
Raymond Proffitt Found. v. U.S. Army Corps of Engineers, 128 F. Supp. 2d 762 (E.D. Pa. 2000)
for the proposition that the 1990 WRDA gives Corps an affirmative duty “to include
environmental protection as a mission.” (Doc. 120 at 10.) Be that as it may, neither Raymond
Proffitt case addresses the question of what happens when the 1990 WRDA conflicts with a
specific Flood Control Act.
Guardians invokes Missouri v. Dep’t of the Army, Britt v. U.S. Army Corps of Engineers,
769 F.2d 84 (2nd Cir. 1980), and Creppel v. U.S. Army Corps of Engineers, 670 F.2d 564 (5th
Cir. 1982) to argue that Corps has discretion to deviate because Congress expects Corps to
deviate from Flood Control Acts in response to changed circumstances. (See Doc. 120 at 11–12.)
As Guardians admits, however, any deviation must accord with the purposes of the underlying
flood control project. (See Doc. 120 at 48.) The Middle Rio Grande Project is unique in that even
small changes could upset the fragile equilibrium over water use established by the Rio Grande
Compact, various contracts, and statutes. With this situation in mind, Congress deliberately
specified the sole purposes of the project and implemented a strict operating schedule. Despite
Guardians’s framing that deviation for environmental purposes is just a commonsense agency
response to changed circumstances, Corps reasonably believes that unilateral deviations for
environmental purposes would be disruptive to the objectives of the 1960 FCA.4
4
As an aside, Guardians uses Britt to argue that Corps’s reports “that form the basis for Congressional authorization
are ‘never intended to be the final plans for the project.’” (See Doc. 120 at 11 (citing Britt, 769 F.2d at 89).) But that
point cuts against Guardians’s earlier argument that because Corps included fish and wildlife development as a
purpose in its original report to Congress regarding the Middle Rio Grande Project, Congress intended fish and
wildlife development to be a purpose of the project.
36
(4) Corps’s regulations do not make Corps’s decision arbitrary or capricious.
Guardians argues that Corps’s regulations reveal that it has “blanket authorization” to add
new project purposes for the benefit of endangered species. (Doc. 120 at 48.) But Corps’s
regulations unambiguously limit environmental deviations to instances when such deviations
comport with the authorized purposes of the specific Flood Control Act:
Revisions and updates [to the water control plans for a Corps facility] may
incorporate upstream and downstream environmental flow objectives when
compatible in accordance with authorization and approved purposes.
Dep’t of the Army, U.S. Army Corps of Eng’rs, Eng’r Regulation No. 1110-2-240, Engineering
and Design—Water Control Management (May 30, 2016), ¶ 3-2(g) (emphasis added). As
mentioned, Corps sensibly believes that it may not deviate from its Middle Rio Grande operating
schedule for environmental purposes given the provisions of the 1960 FCA.
Even if the Court were to manufacture ambiguity by selectively reading the regulation—
perhaps by interpreting ¶ 1-5(a) of the regulation to mean that “fish and wildlife conservation” is
an “authorized purpose”—any ambiguity is to be resolved in favor of Corps’s permissible
reading of its own regulation. See Auer v. Robbins, 519 U.S. 452, 457 (1997) (citation omitted).
Here, the regulation applies generally to all reservoir projects that Corps owns and operates in
the United States. Not all of these reservoirs are subject to the same battles over water that afflict
the Middle Rio Grande facilities, and not all of these reservoirs are subject to the stringent
“solely for flood control and sediment control” exhortation. In light of these facts, language in
the regulation that suggests fish and wildlife conservation is an authorized purpose is no more
than an acknowledgment of the fact that at some—but not all—facilities, fish and wildlife
conservation is an authorized purpose. If the regulation actually constituted “blanket
authorization” to modify operations for fish and wildlife conservation at every single facility,
37
then language like “when compatible in accordance with authorization and approved purposes”
from ¶ 3-2(g) would be superfluous.
(5) Corps’s prior actions do not render its current decision on discretion arbitrary
or capricious.
Guardians avers that Corps’s previous actions, like consulting with FWS and deviating
from planned operations for the benefit of the minnow and flycatcher, show that Corps’s current
discretion opinion is arbitrary or capricious. (See Doc. 120 at 34–37, 49.) There is a difference,
however, between what Corps is supposed to do and what it can do. Just because Corps did
something in the past does not make it legal. For some actions, Corps acknowledges that it
consulted in the past, but explains that pursuant to its 2014 Reassessment, it now believes it has
no legal discretion to deviate from planned operations. For other actions, Corps explains that it
consulted with FWS because it was jointly consulting with Reclamation and did not seriously
examine which actions actually constituted Corps actions. After headquarters issued guidance
telling Corps to more closely scrutinize its ESA obligations, Corps changed course. The Court
sees no evidence of arbitrary or capricious behavior—indeed, agencies are entitled to change
their minds as long as they follow proper procedures. See Home Builders, 551 U.S. at 658–59.
Nor do Corps’s previous deviations constrain Corps to consult with FWS. Previous
deviations were only permissible either with special Congressional authority or with the consent
of the Rio Grande Compact Commission. (See Doc. 124 at 34–35.) The Congressional authority
has since expired. (Id. at 35.) And the Court has explained that “discretion” that comes only with
the consent of another body is not the requisite discretion that mandates § 7(a)(2) consultation
when Congress imposes the consent requirement.
38
(6) The minnow riders and subsequent Congressional enactments do not constitute
endorsement of the idea that Corps has discretion over its Middle Rio Grande
operations.
Congress enacted a series of laws regulating water in the Middle Rio Grande, including
the Energy and Water Development Appropriations Act, 2004, Pub. L. No. 108-137, § 208, 117
Stat. 1827, 1849–50 (2003) (the “2003 minnow rider”), the Consolidated Appropriations Act,
2005, Pub. L. No. 108-447, § 205, 118 Stat. 2809, 2949 (2004) (the “2004 minnow rider”), and
the Energy and Water Development Appropriations Act, 2006, Pub. L. No. 109-103, § 121(b),
119 Stat. 2247, 2256 (2005) (the “2005 minnow rider”). Guardians argues that these minnow
riders constitute Congressional endorsement of the idea that Corps has discretion over its Middle
Rio Grande operations. (See Doc. 120 at 38–41.) But the text of the minnow riders belies
Guardians’s claim:
Notwithstanding any other provision of law, the Secretary of the Interior, acting
through the Commissioner of the Bureau of Reclamation . . . may not use
discretion, if any, to restrict, reduce, or reallocate any water stored in Heron
Reservoir or delivered pursuant to San Juan-Chama Project contracts, including
execution of said contracts facilitated by the Middle Rio Grande Project, to meet
the requirements of the Endangered Species Act.
2003 minnow rider (emphasis added). The above quoted 2003 minnow rider was the result of
joint consultation with FWS by Reclamation and Corps. The “may not use discretion, if any”
language demonstrates that Congress does not endorse the idea that Reclamation (or Corps) has
discretion to deviate from statutorily-mandated operations. See id. (emphasis added). The “if
any” language remains in the subsequent minnow riders. See 2004 and 2005 minnow riders.
Guardians next points to language in the 2005 minnow rider that provides “[t]he
Secretary of the Army may carry out and fund projects to comply with the 2003 Biological
Opinion . . . .” (Doc. 120 at 40.) Guardians also throws in the Water Resources Development Act
of 2007, which commands, “The Secretary shall select and shall carry out restoration projects in
39
the Middle Rio Grande from Cochiti Dam to the headwaters of the Elephant Butte Reservoir in
the State of New Mexico.” (Id. (citing Pub. L. No. 110-114, § 3118(b), 121 Stat. 1041, 1137
(2007) (the “2007 WRDA”)).)
Neither provision Guardians highlights is persuasive. The 2003 Biological Opinion has
expired, and the 2007 WRDA also carries the same caveat as the FWDA and other WRDAs. In
particular, the 2007 WRDA clarifies that a “restoration project” is one that is “consistent with
other Federal programs, projects, and activities.” 2007 WRDA § 3118(a). As explained, Corps
reasonably believes that adding additional projects would be inconsistent with its Middle Rio
Grande operations because such projects would clash with authorizing Flood Control Acts and
disrupt the delicate balance of water rights in the region.
CONCLUSION
For the reasons given, the Court reverses and remands to Corps on the issue of
consultation over maintenance operations in the Abiquiu Dam tunnel and the Jemez Canyon
Dam stilling basin. The Court denies the remainder of Guardians’s motion.
___________________________________
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE
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