Tenth Circuit Affirms U.S. Army Corps of Engineers’ Lack of Discretionary Authority to Operate Dams Along the Rio Grande Under the Endangered Species Act

March 2020

California Water Law & Policy Reporter, Volume 30, Number 6

In January, the United States Court of Appeals for the Tenth Circuit affirmed the decision of the district court that the United States Army Corps of Engineers (“Corps”) was not required to consult with the United States Fish and Wildlife Service (“FWS”) about the operation of various dams and reservoirs on the Rio Grande that would have benefited endangered species living along the river. (WildEarth Guardians v. United States Army Corps of Engineers (10th Cir. 2020) 947 F.3d 635.) Because neither the Flood Control Acts of 1948 and 1960 nor the Rio Grande Compact imbued the Corps with discretion over its operations of projects within the Middle Rio Grande Valley, the Corps did not need to engage in formal consultations with the FWS pursuant to the Endangered Species Act (“ESA”). (Id. at 642.)

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