ELR Citation: 50 ELR 20023
No(s). 18-2153 (10th Cir. Jan 17, 2020)

The Tenth Circuit held that the U.S. Army Corps of Engineers was not required to consult with FWS about alternative water management policies in the Rio Grande River that would help protect the endangered southwestern willow flycatcher and the Rio Grande silvery minnow. An environmental group argued that the Corps violated the ESA by failing to exercise its discretion and consult with FWS about the policies. The district court concluded that the Corps was not authorized by the ESA to allocate additional water to species' needs and thus was not required to consult with FWS. The appellate court found no error in the district court's reasoning, finding that the Corps lacked discretion over its operations in the Middle Rio Grande Valley and thus that it need not engage in formal ESA consultations. It therefore affirmed the district court's denial of the group's motion to set aside or reverse the Corps' decision.