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Potential Options to Reduce ESA Liability for Private New Mexico Irrigators Who May Be Liable for a Section 9 ‘Take’

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Please use this identifier to cite or link to this item: http://hdl.handle.net/1928/10486

Potential Options to Reduce ESA Liability for Private New Mexico Irrigators Who May Be Liable for a Section 9 ‘Take’

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Title: Potential Options to Reduce ESA Liability for Private New Mexico Irrigators Who May Be Liable for a Section 9 ‘Take’
Author: Klise, Geoffrey T.
Subject: Endangered Species Act (ESA)
Rio Grande silvery minnow
Southwestern willow flycatcher
Habitat Conservation Plan (HCP)
The ‘harm’ regulation
Section 9 Injunctions
Abstract: Customary irrigation techniques employed by New Mexico irrigators may place them in jeopardy of a Section 9 ‘take’ under the Endangered Species Act (ESA) if their diversion constitutes a foreseeable harm that may kill or impair reproduction of a listed fish species. Unless irrigators are covered by a federal incidental take statement, anyone can challenge the activity if harm was done or may occur in the future. What constitutes a ‘take’ is a highly contentious issue; a dead fish is not necessary to prove an action will violate Section 9 since future ‘harm’ that is ‘imminent’ can also be seen as a ‘take.’ How may irrigators reduce their liability in a situation where the diversion clearly poses harm? The option with immediate benefits for fish is for an irrigator to leave more water in-stream by increasing irrigation efficiency. This must be backed up by applying for a Section 10 Habitat Conservation Plan (HCP) or Safe Harbor Agreement to gain legal protection from a lawsuit. New Mexico has not developed in-stream flow incentives for irrigators because historically, state law has not explicitly recognized the value of water left in-stream for fish. This complicates the situation for New Mexico irrigators not tied to federal programs, which includes many small community irrigation districts and acequia communities. New Mexico irrigators should be pro-active in protecting their water right. Emerging state-based incentive programs that seek to leave water in-stream are a start in the right direction, but applied alone without a Section 10 HCP, will not fully reduce their ESA liability.
Date: 2010-04-29
Series: Publication (University of New Mexico. Water Resources Program) ; no. WRP-14
Description: This publication is the Professional Project report of Geoffrey T. Klise, submitted in partial fulfillment of the requirements for the Master of Water Resources degree at the University of New Mexico (August 2005).
URI: http://hdl.handle.net/1928/10486


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