[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
THE SILVERY MINNOW'S IMPACT ON NEW MEXICO
=======================================================================
OVERSIGHT FIELD HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
Saturday, September 6, 2003, in Belen, New Mexico
__________
Serial No. 108-52
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona George Miller, California
Tom Osborne, Nebraska Edward J. Markey, Massachusetts
Jeff Flake, Arizona Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana Ciro D. Rodriguez, Texas
Rick Renzi, Arizona Joe Baca, California
Tom Cole, Oklahoma Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
C O N T E N T S
----------
Page
Hearing held on Saturday, September 6, 2003...................... 1
Statement of Members:
Baca, Hon. Joe, a Representative in Congress from the State
of California.............................................. 6
Prepared statement of.................................... 7
Calvert, Hon. Ken, a Representative in Congress from the
State of California........................................ 10
Prepared statement of.................................... 11
Pearce, Hon. Steven, a Representative in Congress from the
State of New Mexico........................................ 12
Prepared statement of.................................... 13
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 3
Prepared statement of.................................... 5
Wilson, Hon. Heather, a Representative in Congress from the
State of New Mexico........................................ 14
Statement of Witnesses:
Belin, Alletta, New Mexico Counsel, Western Resource
Advocates.................................................. 41
Prepared statement of.................................... 44
Statement submitted for the record....................... 54
Response to questions submitted for the record........... 55
D'Antonio, John R., Jr., P.E., New Mexico State Engineer,
State of New Mexico........................................ 37
Prepared statement of.................................... 39
Hillson, Eileen Grevey, AguaVida Resources, Albuquerque, New
Mexico..................................................... 23
Prepared statement of.................................... 26
Ortiz, Hon. Anthony, Governor, Pueblo of San Felipe.......... 31
Prepared statement of.................................... 32
Response to questions submitted for the record........... 91
Sanchez, Jessica, Family Farmer and Rancher, Belen, New
Mexico..................................................... 17
Prepared statement of.................................... 19
Wesche, Dr. Thomas A., Principal Scientist, HabiTech, Inc.,
and Professor Emeritus, University of Wyoming, Laramie,
Wyoming.................................................... 58
Prepared statement of.................................... 60
Response to questions submitted for the record........... 63
Additional materials supplied:
Central Arizona Water Conservation District, Statement
submitted for the record................................... 79
Chavez, Hon. Martin J., Mayor, City of Albuquerque, New
Mexico, Statement submitted for the record................. 80
Domenici, Hon. Pete V., a United States Senator from the
State of New Mexico, Statement submitted for the record.... 14
Godfrey, Liz, Great Plains Organizer, Endangered Species
Coalition, Blanco, New Mexico, Letter submitted for the
record..................................................... 83
Harris, Steve, Executive Director, Rio Grande Restoration,
Statement submitted for the record......................... 86
Madrid, Hon. Patricia A., Attorney General, State of New
Mexico, Letter submitted for the record.................... 88
National Endangered Species Act Reform Coalition, Washington,
DC, Statement submitted for the record..................... 89
Rio Grande Water Rights Authority, Statement submitted for
the record................................................. 93
Shah, Subhas, Chief Engineer, Middle Rio Grande Conservancy
District, Albuquerque, New Mexico, Statement submitted for
the record................................................. 95
Turner, Dr. William M., Trustee, Lion's Gate Water, Statement
submitted for the record................................... 98
Udall, Hon. Tom, a Representative in Congress from the State
of New Mexico, Statement submitted for the record.......... 8
OVERSIGHT FIELD HEARING ON THE SILVERY MINNOW'S IMPACT ON NEW MEXICO
----------
Saturday, September 6, 2003
U.S. House of Representatives
Committee on Resources
Belen, New Mexico
----------
The Committee met, pursuant to call, at 9:00 a.m., in Belen
High School, 1619 West DelGado, Belen, New Mexico, Hon. Richard
W. Pombo [Chairman of the Committee] presiding.
Members Present: Representatives Pombo, Calvert, Pearce and
Baca.
Also Present: Representative Wilson of New Mexico.
The Chairman. If I could have everybody take their seats,
please.
The Oversight Field Hearing by the Committee on Resources
will come to order.
The Committee is meeting today to hear testimony on the
Silvery Minnow's Impact on New Mexico.
Before we begin I ask unanimous consent that Congresswoman
Heather Wilson be permitted to sit on the dais and participate
in the hearing, without objection.
I would now like to recognize Congressman Steve Pearce for
some special announcements and introductions. Congressman
Pearce.
Mr. Pearce. Thank you, Mr. Chairman. Thank you for coming
to this field hearing. My district is Belen. It has been
nothing but gracious as we made the preparations to have this
very important discussion. Today, before we get started, we are
pleased to have the Belen High School ROTC Unit post the
colors. Please rise and show respect as the unit presents our
flag.
[Whereupon the colors were posted.]
Mr. Pearce. Now I would like to present Luperto Garcia,
Disabled American Veterans Chapter 29 of Belen; Billie F.
Jones, Sr., State Commander, U.S. Navy Combat Corpsman. We also
have Commander Dwight Bierner, U.S. Army, 2nd Infantry, Korea;
Vice Commander Bernadette See, U.S. Women's Army Corps, Vietnam
Era; Veteran's Service Officer, Dale Howard, U.S. Navy Seabee,
Korean War; Ruperto Baldonado, U.S. Army, Korean War; Chad
Good, U.S. Navy, Gulf War; Carl Schauer, Treasurer, U.S. Army,
World War II and Korean War.
And I just want to recognize them for being here and being
representative of those who have fought to keep our freedoms,
those who have fought to keep our liberties, the sacrifices
that have been made throughout the generations of America. And
we just recognize you and thank you.
Mrs. Corby Lynne Chavez will lead us in ``God Bless
America.''
[Whereupon ``God Bless America'' was sung.]
Mr. Pearce. Vianca Corral from Belen High School, a
sophomore, will give a Spanish invocation, that will be
followed by Jim Wilburn from Belen Christian Church leading us
in the English invocation.
Ms. Corral. Buenos dias tengan todos ustedes. Estamos
reunidos hoy en este dia, dandole gracias a nuestro padre Dios
por permitirnos estar aqui. Y de ese modo juntos podamos tomar
decisiones que ayude a mejorar nuestro pais, nuestras
comunidades, y nuestros Pueblos, y haci hacer un mundo mejor.
Por eso tengamos fe en nosotros mismos que llegaremos a tener
un futuro mejor, lleno de oportunidades e igualdades.
Ahora por favor me gustaria mucho que me acompanaran por un
momento y juntos acercarnos a nuestro senor Dios.
Padre nuestro que estas en el cielo, santificado sea tu
nombre, venganos tu reino, agase senor tu voluntad aqui en la
tierra como en el cielo. Danos hoy nuestro pan de cada dia, y
perdona nuestras ofensas como nosotros tambien perdonamos a los
que nos ofenden. No nos dejes caer en tentacion, mas libranos
de todo mal. Amen.
Rev. Wilburn. Let us pray. Almighty God, we recognize that
you do have dominion over nature. We read in Genesis that you
brought so much rain to this globe that it turned to a global
flood. We read in Second Kings that you brought judgment to
Israel with several years of drought. But by your words to
Christ in the Gospels you said peace to a violent storm and it
was still.
Lord, we lift this day to you. First of all we ask that you
will bring rain and more water to replenish this drought-
stricken state. We also lift this day to you, we will pray for
those, the farmers that are in dire need for the necessary
water for their crops, for the cities that are in dire need for
the necessary water for the drinking of water and other
necessary needs of the cities. With that, on the other hand we
also lift up those who are concerned with the welfare of the
wildlife in our streams and rivers of our state. We lift this
day to you. We ask that you will give us guidance, direction,
wisdom, and bring a resolution to this matter, as you alone
will be glorified. In your precious name, in Jesus' name. Amen.
Mr. Pearce. If you will be seated. We will recognize a
couple of dignitaries we have in the audience. We have state
Senator Michael Sanchez, who was my first interim Committee
chairman on--Mike is standing back at the back and we recognize
him, my first interim Committee chairman on water and
utilities.
We have also State Representative Don Tripp, both of them
represent--Don is here in the middle--both of them represent
this area. We have Arthur Rodarte over here, who I spent a lot
of time in the State Senate and is a good friend from up in the
northern part.
Manuel Lujan is here, former Secretary of the Interior,
also former U.S. Congressman.
Mr. Chairman, again, thank you for being here and thank you
for bringing this important discussion to New Mexico.
The Chairman. Thank you. I'd like to, if I may, before we
begin the opening statements ask former Secretary of Interior
and a former colleague of ours, Mr. Lujan, if he would mind
coming up and saying a few words.
Mr. Lujan. Thank you, Mr. Chairman. Thank you for coming to
New Mexico, and Congressman Calvert, and Congressman Baca.
Congressman Baca is one of our own from here, we just loaned
him to California for the time being, but we hope that you come
back to us and to our New Mexico delegation.
Mr. Chairman, thank you very much for agreeing to have this
meeting here. It's very vital to New Mexico. You know, I was in
the Congress at the time that the Endangered Species Act was
passed, but to tell you the truth, I really thought it was, you
know, to save elephants and tigers, and kind of things like
that. And, of course, it turns out that it's not quite that
way, it was probably one of the more contentious things that I
had to deal with when I was in the cabinet with the spotted owl
and all of those different things.
I really do think that we need some balance. The Endangered
Species Act ought to show that there is a balance between, of
course, the endangered species and human beings. The judge
issued a ruling here that, you know, interpreting the
Endangered Species Act that had to take water from human beings
and give it to the river for the endangered species, and so
maybe, I think that perhaps what is in order and what advice,
if I might take that privilege, it would be that there needs to
be a balance to take into consideration, of course, the
endangered species, you don't want to completely ignore that,
but on the other hand you got to take economic interests and,
of course, the interests of the human beings.
So thank you very much for holding the hearing. You'll find
that it's a very contentious issue here in New Mexico because
the livelihood of people, of course, depend on it. Thank you
very much, Mr. Chairman.
The Chairman. I now recognize myself for an opening
statement.
STATEMENT OF THE HON. RICHARD POMBO, CHAIRMAN, COMMITTEE ON
RESOURCES, AND A U.S. REPRESENTATIVE FROM THE STATE OF
CALIFORNIA
The Chairman. I want to thank you for the opportunity to
bring the House of Representatives' Committee on Resources to
the State of New Mexico. I look forward to listening and
gaining greater insight from the witnesses today and from my
congressional colleagues on how the Endangered Species Act is
being implemented by Federal agencies and interpreted by the
courts specific to the Middle Rio Grande River. I have great
confidence that the witnesses who are here will be more than
successful in presenting New Mexico's views on this issue.
For nearly a decade Congress has worked to bring amendments
to the Endangered Species Act to conserve both species and the
rights and needs of Americans. During this same time
designation of critical habitat under the Endangered Species
Act has involved into a source of controversy. Due to the
vigorous mandates required under the current act, specifically
critical habitat designations, many think the program is
unworkable.
Judicial orders and court-forced settlement agreements have
left the United States Fish and Wildlife Service with limited
ability to prioritize its species recovery programs and little
or no scientific discretion to focus on the species and the
greatest need of conservation.
The Administration acknowledges the court orders and
mandates often result in leaving Fish and Wildlife Service with
almost no ability to confirm scientific data in its
administrative record before making decisions on listing and
critical habitat proposals.
In the wake of this decade-long trend, in the current
administration supported by the previous Clinton
Administration, it is recognized that the critical habitat
designations provide the majority of listed species and
proposed to be listed species, little, if any, additional
protection.
Since the last authorization of the Endangered Species Act
expired in 1993, there has been great optimism and hope that we
would be able to amend the Act and implement a process based on
sound science and common sense approaches to species
conservation and recovery, goals similar to those that the 1973
Congress envisioned when they originally adopted the law.
Congress intended for this law to be used to prevent the
extension of species and to increase the number of those in
need before triggering fed regulation. It never dreamed that it
would turn into a tool used by vocal and well-funded special
interest groups seeking to impose court ordered Federal land
and water use controls on the majority of Americans. They also
never envisioned the widespread injunctions, economic meltdowns
and social dislocations that many of you are now facing here in
New Mexico as a result of the silvery minnow legal actions.
I realize amendment and reauthorization of the Endangered
Species Act has dragged on with little success since it expired
in 1993. This is not for a lack of trying, and Congress has
come close to reaching agreement a number of times but,
unfortunately, some groups would rather play politics and
benefit from the current state of dislocation under the act,
they would have to agree what is best for the species.
It is this selfish attitude that has resulted in the
uncertainty New Mexico is facing with the silvery minnow.
However, New Mexico is not alone in this uncertainty. It is
happening throughout the U.S. because of the flaws in the
Endangered Species Act. Recognizing that this is not just a
regional problem, the best and only way to fix the Act is to
amend the law for all Americans, with equal application across
the country. Such an approach to amending the Endangered
Species Act also maintains the broad stakeholder support
critical to reaching a majority consensus in Congress.
The House Committee on Resources is here today as a result
of the request of the New Mexico delegation members, Mr. Pearce
and Ms. Wilson. We are before you today to hear from you and
receive your ideas on what we, as your elective representatives
in Washington, can do to improve the implementation of the
Endangered Species Act.
Again, I thank you for having us. And before I recognize
the next member I would just like to conclude by saying that
this is an official hearing of the Congress of the United
States and we require the audience and the members to, to have
a certain decorum during the hearing. That does involve no
reaction or outbursts from the audience. We do have a strict
time limit that we place all the witnesses under. So we, anyone
that has signs or tries to disrupt the hearing in any way will
be asked to stop in order to maintain the decorum that is
necessary in the House of Representatives.
[The prepared statement of Chairman Pombo follows:]
Statement of The Honorable Richard W. Pombo, Chairman,
Committee on Resources
Good Morning. Thank you for the opportunity to bring the House of
Representatives Committee on Resources to the State of New Mexico. I
look forward to listening and gaining greater insight from the
witnesses today, and from my Congressional colleagues, on how the
Endangered Species Act is being implemented by federal agencies and
interpreted by the Courts specific to the Middle Rio Grande Region.
I have great confidence that the witnesses who are here will be
more than successful in presenting New Mexico's views on this issue.
***
For nearly a decade, Congress has worked to bring amendments to the
Endangered Species Act that conserves both species and the rights and
needs of Americans.
During this same time, designation of critical habitat under the
Endangered Species Act has evolved into a source of controversy. Due to
the rigorous mandates required under the current Act, specifically
critical habitat designations, many think the program is unworkable.
Judicial orders and court-forced settlement agreements have left the
United States Fish and Wildlife Service with limited ability to
prioritize its species recovery programs and little or no scientific
discretion to focus on those species in greatest need of conservation.
The Administration acknowledges that court orders and mandates
often result in leaving the Fish and Wildlife Service with almost no
ability to confirm scientific data in its administrative record before
making decisions on listing and critical habitat proposals. In the wake
of this decade-long trend, the current Administration, supported by the
previous Clinton Administration, recognize that critical habitat
designations provide the majority of listed species and proposed to be
listed species little if any additional protection.
Since the last authorization of the Endangered Species Act expired
in 1993 there has been great optimism and hope that we would be able to
amend the Act and implement a process based on sound science and common
sense approaches to species conservation and recovery. Goals similar to
those that the 1973 Congress envisioned when they originally adopted
this law.
Congress intended for this law to be used to prevent the extinction
of species and to increase the number of those in need before
triggering federal regulation (restrictions). It never dreamed that it
would turn into a tool used by vocal and well-funded special interest
groups seeking to impose court-ordered Federal land and water use
controls on the majority of Americans.
They also never envisioned the widespread injunctions, economic
meltdowns and social dislocations that many of you are now facing here
in New Mexico as result of the silvery minnow legal actions.
***
I realize amendment and reauthorization of the Endangered Species
Act has dragged on with little success since it expired in 1993. This
is not for a lack of trying and Congress has come close to reaching
agreement a number of times. But unfortunately, some groups would
rather play politics and benefit from the current state of dislocation
under the Act then have to agree what is best for the species. It is
this selfish attitude that has resulted in the uncertainty New Mexico
is facing with the silvery minnow.
However, New Mexico is not alone in this ``uncertainty.'' It is
happening throughout the U.S. because of the flaws in the Endangered
Species Act. Recognizing that this is not just a ``regional'' problem,
the best and only way to fix the Act is to amend the law for all
Americans with equal application across the country. Such an approach
to amending the ESA also maintains the broad stakeholder support
critical to reaching a majority consensus in the Congress.
The House Committee on Resources is here today as a result of the
requests of its New Mexico Delegation Members, Mr. Pearce and Ms.
Wilson. We are before you today to hear from you and receive your ideas
on what we, as your elected representatives in Washington, can do to
improve the implementation of the Endangered Species Act.
Again, thank you for having us and I would at this time like to
recognize Mr. Baca.
______
The Chairman. I'd like at this time to recognize my friend
and colleague from California, Mr. Baca.
STATEMENT OF THE HON. JOE BACA, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Baca. Thank you very much, Mr. Chairman. Bien venidos a
todos. It's an honor to be here this morning in my home town,
where I was born not too many years ago. And it wasn't too many
years ago, although I may look a little bit older, but it
wasn't too many years ago. But it's nice also to see many of my
relatives that are here with me, and I see Rupert out here, and
Flora that's out here. Mela, one of the custodians that's out
here, and I see, there's nothing wrong with being a custodian.
I was a custodian before, and look at that, I'm now a United
States congressman. So a lot of things can happen to you as
well. But it's nice to be here and visit some of my relatives
and to be back in the State of New Mexico.
And, of course, I feel I have the responsibility of being a
guardian angel to Belen, otherwise my family members who live
here may not claim me. So I have that responsibility, and
that's why Heather Wilson and Steve Pearce, a lot of times I
come here and try to do as much as possible for this area,
because this is where a lot of my roots are, and this is where
I grew up in the summers. My parents always wanted to make sure
that I knew where I was born and where I came from. And it's
nice to be here.
Never dreamed that I would be coming back here and having a
hearing here. I believe that this is the first time that a
congressional hearing has ever been held in Belen, so it's
historical in terms of what's happening here today dealing with
this particular problem. And I'm glad to participate.
I will curtail some of my comments, as the Chair covered a
lot of the aspects of it, but I look forward to participating
in what I hope will be a productive hearing to help solve some
of the dilemmas that have faced this area for a long time. And
I say for a long time because during the summers I used to come
out here and bale hay, so I know what it's like in reference to
the farmers and the hay and the drought, and needing the hay as
well. Let me tell you, after baling hay I said that's not the
kind of job that I want, I want to do something else. It's hard
work, but it's good work too.
The conflict, protection of the endangered species and the
needs of the community, are nothing new to myself or to Ken
Calvert from California. In our districts in California we have
the endangered Delhi sands flower-loving fly, recently named
the Giant Delhi sands flower-loving fly. This is an endangered
species, you know, a fly that you see flying around that we're
now trying to protect. And I think I was on NBC at one time and
I happened to swat a fly, and I don't know if it was endangered
species or not. But--and then I was afraid that a lot of the
cattle and horses, and others, if they swatted the fly, what
would happen to them too in terms of the fly. But these are the
kind of things that we've got to deal with as well.
In one of the fastest-growing regions in the country where
76 percent of the population is minority, we have had to stall
commercial development to preserve this fly. Now they're
talking about the possibility of moving 5.8 million pounds, or
120 truckloads of rare sand, in order to turn it into a
habitat.
To me, this goes beyond what the ESA was created to do. And
I think that's why we're at this hearing in terms of ESA and
the establishments of the endangered species. We also have to
protect the endangered kangaroo rat for Fish and Wildlife that
has interfered with the businesses, military bases, water
rights, water companies.
I understand that we have a duty to protect the endangered
animals and insects from extinction, but, as public servants,
we also have a duty to protect the welfare. And I state, we
have the responsibility to protect the welfare of the people
who make up our community. Their needs should come first and
foremost. And when you talk about water and supplies in the
states like New Mexico that already face drought, limited water
supplies, this couldn't be greater.
I am confident, through the leadership represented here
today and the guidance of this Committee, that we can meet in
the middle to create a balance. As Lujan indicated earlier, the
plan that benefits the state farmers, the Pueblo Indians, and
other citizens, and increases the state water supply, and the
numbers of the silvery minnow.
I look forward to a constructive dialog today as we listen
to the witnesses and their valuable points of view. Hopefully,
it will be a fair and objective hearing in listening to
everybody's point of views in reference to the problem and,
hopefully, we can solve the problem. Because it is a problem to
the farmers, it is a problem in terms of drought in this area.
We've not had any water. As I talked to relatives in the area,
and as we look at water and the needs between the Pueblo
Indians as well, and the Indians that are affected and the
water that flows in this area, we need to find a happy medium
for our farmers.
And I know that a lot of the flow that comes through when
you're harvesting. You've got a certain time you have to
harvest your crop and if you're not releasing a lot of that
water to a lot of them, then you can't harvest alfalfa or other
crops. So I understand that.
So with that, I want to thank the Chairman for having this
hearing here in my home town of Belen, where I was born.
[The prepared statement of Mr. Baca follows:]
Statement of The Honorable Joe Baca, a Representative in Congress from
the State of California
Thank you, Mr. Chairman.
Buenos Dias. It is an honor to be here this morning, in my hometown
of Belen, New Mexico. Even though I represent the 43rd District of
California, I was born in this town not too many years ago. And I feel
that I have the responsibility of being a guardian angel to Belen,
otherwise my family members who live here may not claim me. I have been
looking forward to participating in what I hope will be a productive
hearing today to help solve a dilemma that has faced this area for a
long time.
The conflict between the protection of endangered species and the
needs of communities is nothing new. In my district in California, we
have the endangered Delhi Sands flower-loving fly (recently named the
Giant Delhi Sands flower-loving fly). In one of the fastest growing
regions in the country, where 76% of the population are minority, we
have had to stall commercial development to preserve ``the fly.'' Now,
they're talking about possibly importing 5.8 million pounds, or 120
truckloads, of rare sand to turn it into fly habitat. To me, this goes
way beyond what the ESA was created to do.
Also, protection of the endangered Kangaroo Rat through the Fish &
Wildlife Service has interfered with the business of a military base,
and the water rights of water companies.
I understand that we have a duty to protect endangered animals and
insects from extinction; but as public servants, we also have a duty to
protect the welfare of the people who make up our community. Their
needs should come first and foremost. And when you talk about water
supplies in a State like New Mexico that already faces drought and
limited water supply, these needs couldn't be greater.
I am confident that through the leadership represented here today,
and the guidance of this Committee, we can meet in the middle to create
a balanced plan that benefits the state's farmers, Pueblo Indians, and
other citizens; and increases the state's water supply and the number
of silvery minnow. I look forward to a constructive dialogue today as
we listen to the witnesses and their valuable points of view.
Thank you.
______
Mr. Baca. And for the record, I'd also like to submit a
statement by Congressman Udall, that could not be here today,
but asked that if I would submit for the record his statement.
He had a conflict in terms of scheduling and had to be
somewhere else, otherwise Congressman Tom Udall would have been
here. So, for the record, I'd like to submit his statement.
Thank you very much, Mr. Chairman.
The Chairman. Without objection, it will be included in the
record.
[The prepared statement of Mr. Tom Udall follows:]
Statement submitted for the record of The Honorable Tom Udall, a
Representative in Congress from the State of New Mexico
For several weeks now, there has been an ongoing collaborative
process of negotiations occurring here in New Mexico regarding the
current water situation in the Rio Grande Basin. Several of the same
groups that are named or interested parties in the recent Tenth Circuit
opinion have been actively engaged in these negotiations. We are at a
delicate point in these negotiations and we should all hope a local
settlement can be achieved.
Future water decisions for New Mexico require that collaboration
continue at the local level so that we can address and resolve the core
issues that affect the Rio Grande. Sustainability of the river and our
water supply depends upon local involvement and solutions, rather than
intrusive intervention by the federal government.
As we all know, the Tenth Circuit Court of Appeals upheld the
Federal District Court's opinion determining that the Bureau of
Reclamation ``has the discretion to reduce deliveries of water'' to
comply with the Endangered Species Act.'' This affirmation rekindled
the passionate debate about how we use our water resources, about the
sustainability of our current water practices, and whether we are using
our water wisely.
This is a very difficult situation for everyone involved. Some have
painted the situation as a crisis, as a people versus fish issue.
Others state that this ``crisis'' should be taken as an indication that
it is time to recognize the bottom line of the matter: water is a
scarce commodity in New Mexico and should be treated accordingly.
Our water resources are over-allocated, and population growth is
stretching these precious supplies to the limits. This situation is
compounded by a water infrastructure that is inefficient, outdated, and
insufficient to meet our current needs. We can no longer overlook the
importance of water use and conservation plans.
In an effort to find a common-sense approach to sustainable water
management in New Mexico and the west, I engaged in extensive
discussions with the major stakeholders in the San Juan/Chama water
dispute, and shared my concerns directly with United States Department
of Interior Secretary Gale Norton, the person ultimately responsible
for enforcing the 10th Circuit ruling.
As a result of these conversations, I introduced The Middle Rio
Grande Emergency Water Supply Stabilization Act of 2003, a bill the
will address our outmoded water principles and practices and help
ensure sustainable water management and conservation in New Mexico.
My bill addresses the core, crucial issues that underlie New
Mexico's water problems. First, my bill authorizes the Secretary of the
Interior to contribute to a long-term solution for the Middle Rio
Grande River in the State of New Mexico by preventing, reducing or
eliminating wasteful depletion of waters. This would entail the
establishment of a water supply stabilization program at the local
level. Under this program, the Secretary would provide financial and
technical assistance to promote and encourage the adoption and
implementation of water conservation measures within the Rio Grande
Basin in New Mexico.
To accomplish this, the Secretary would enter into cost sharing and
other agreements with the State and other entities including
organizations, municipalities, Indian Tribes and Pueblos, and
individuals, who use agricultural or municipal and industrial water
from the Rio Grande River and its tributaries in New Mexico, including
water supplied directly or indirectly from the Middle Rio Grande
Project or the San Juan-Chama Project. These collaborative agreements
will result in localized decisions regarding sustainable water
management along the Rio Grande.
Second, the bill encourages the implementation of water
conservation measures that will improve water quantity and water
quality conditions needed to support a sustainable, living river
environment within the Middle Rio Grande Basin, and will result in
conservation, recreation, and other public benefits.
Third, the bill sets a goal to achieve, within three years of the
date of enactment of this legislation, quantifiable improvements in
irrigation efficiencies through the incorporation of measures such as
lining canals and ditches, and the use of low-flow or drip irrigation
systems and other modern hydrological technologies.
Fourth, the bill directs the Secretary to cooperate with the State
of New Mexico, water use organizations, and affected landowners to
develop and implement a comprehensive program to identify, remove, and
control salt cedar vegetation in the flood plain of the Rio Grande
River and its tributaries, and to replant and re-establish native
vegetation if appropriate.
Fifth, the bill authorizes grants for basic research on
technological solutions for accessing new sources of water including,
but not limited to, desalinization, and the purification of brackish
and other types of unpalatable water. Furthermore, the bill authorizes
grants for basic research to increase water efficiency. For example,
Los Alamos National Labs, located in my district, is working to improve
technology so that less water will be required in manufacturing
computer microchips. And, the bill authorizes funds to conduct studies
to quantify the water needs, requirements and rights of tribes and
pueblos in the Middle Rio Grande Basin.
Finally, the bill confirms the original intentions of Congress as
set forth in the Colorado River Storage Project Act of 1956, and the
San Juan-Chama Project Act 1962. These Acts set forth the principle
purposes underlying the furnishing of federal water supplies in New
Mexico, including water for municipal, domestic, and industrial uses,
and for the conservation of, and I quote from the original authorizing
legislation, ``the scenery, the natural, historic, and archeologic
objects, and the wildlife'' on lands affected by the project, and ``to
mitigate losses of, and improve conditions for, the propagation of fish
and wildlife.''
We are in the midst of a very serious drought, and in New Mexico
and across the west. Our water resources are over-allocated, and an
exploding growth in population is stretching these resources to the
limits. This situation is compounded by a water infrastructure that is
inefficient, outdated, and insufficient to meet our current needs.
My bill deals with these realities and many other crucial issues.
It sets up incentives to conserve our water resources and develop
collaborative solutions at the local level. It restores and protects
the Rio Grande River and the surrounding Bosque, and encourages
technological solutions for new sources of water and methods to harness
such technology to increase water efficiency.
Considering the above, if we do not focus collaboratively and make
every effort possible to conserve our water, I believe that New Mexico,
and similarly situated western states, will continue to confront
similar, if not worse, water scarcity problems indefinitely. We need
greater and more conscientious efforts on the part of water users to
conserve this precious commodity. And, these users must become more
accountable for water waste. My bill provides the incentives to
conserve our water resources to ensure that all New Mexicans will have
water to use in the future.
We need to act now to ensure sustainable water management and
conservation in New Mexico. We need greater and more conscientious
efforts on the part of water users to conserve this commodity. The
health and sustainability of the Rio Grande depends on the
collaborative efforts of us all, concentrated not at the federal level
but here at home, where the effects of our water dilemma is felt the
greatest.
______
The Chairman. I'd like at this time to recognize
Congressman Ken Calvert, who is the Chairman of the Water and
Power Subcommittee.
STATEMENT OF THE HON. KEN CALVERT, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Calvert. Thank you, Mr. Chairman. And I certainly
commend you for holding this hearing and appreciate your long-
standing interest in improving the Endangered Species Act and
protecting water rights. I'm pleased to be here in New Mexico
with my friends and colleagues. It's certainly good to see
Manuel Lujan. He's not only a great son of New Mexico but a
great patriot, a great American, and I'm sure you're very proud
to call him your own.
And I, you know, these hearings are about learning new
things, and I learned something on the way over here, that this
is Joe Baca's hometown. So that's great. Joe's district is
right next to mine in southern California.
As the House Water and Power Subcommittee Chairman, I know
firsthand about the role water plays in safeguarding our
environment, cultures and tradition, and certainly our food
supply and our economy. However, we've often found in the west,
and elsewhere in the nation, that in many cases water supplies
can't meet multipurpose demands, particularly in times of
drought. For this reason, many communities, like Albuquerque
and others, have sought blueprints of certainty in meeting
water needs. They assume their citizens will get the water they
paid for when they created those long-range plans.
Well, no good deed goes unpunished. They were proven wrong
this summer when the Tenth Circuit Court of Appeals ruled that
non-native water, long-standing Rio Grande water contracts,
could be used for environmental regulations that were never
before on the table. A shock wave of uncertainty hit the
western water world, not just in New Mexico, but throughout the
western United States.
This ruling primarily means that the Endangered Species
Act, for the first time, takes precedence over urban water
supplies that never would have been used for the silvery minnow
uses in the first place. The ruling essentially ignores the
nation's fundamental premise of private property freedoms by
exerting Federal control over locally controlled watery
sources.
There's little wonder that this precedent makes many uneasy
in my region of southern California, who are left wondering
what else is going to threaten an already uncertain water
supply situation on the Colorado river. They have witnessed, in
the Endangered Species Act, impacts on Klamath farmers, then on
Albuquerque and Santa Fe urban water users.
And my region, as Joe Baca stated, currently has endangered
Steven kangaroo rats, Delhi sand flowers loving flies, and many
wonder what the next target will be. And be certain of this,
there will be another target.
The court's opinion also speaks volumes about the state of
the Endangered Species Act. Nearly everyone agrees with the
need for endangered species protection, but it seems that more
than money is being spent on litigation and waging battles in
the courts and on protecting species. The only good thing I can
think of in this regard about the current Tenth Circuit
determination, that at least it makes our Ninth Circuit in
California look a little bit better.
No one ever intended this law to become the full employment
act for lawyers and environmental extremists, but I'm concerned
that it's going to go in that direction. It also says that long
years of collaboration could be hijacked by someone on the
fringe not happy with the initial outcome.
It's time for a fresh look at whether the Endangered
Species Act can be carried out more effectively in a
cooperative and scientific manner. This hearing is a good start
in that direction. I certainly look forward to hearing from
today's witnesses and working with my colleagues to resolve the
issue before us today. Thank you very much.
[The prepared statement of Mr. Calvert follows:]
Statement of The Honorable Ken Calvert, a Representative in Congress
from the State of California
I commend you, Mr. Chairman, for holding this hearing and
appreciate your interest in improving the Endangered Species Act and
protecting water rights. I'm pleased to be here in New Mexico with my
distinguished friends and colleagues.
As the House Water and Power Subcommittee Chairman, I know
firsthand about the role water plays in safeguarding our environment,
our cultures and tradition, our food supply and our economy. However,
we have often found in the west--and elsewhere in the nation--that in
many cases water supplies can't meet growing multi-purpose demands,
particularly in times of drought.
For this reason, many communities--like Albuquerque and others--
have sought blueprints of certainty in meeting water needs. They
assumed that their citizens would get the water they paid for when they
created these long-range plans.
They were proven wrong this summer. When the 10th Circuit Court of
Appeals ruled that non-native water and longstanding Rio Grande water
contracts could be used for environmental regulations that were never
before on the table, a shockwave of uncertainty hit the western water
world. The ruling primarily means that the Endangered Species Act--for
the first time--takes precedence over urban water supplies that never
would have been used for silvery minnow uses in the first place.
This ruling essentially ignores our nation's fundamental notion of
private property freedoms by exerting federal control over locally
controlled water resources. It's little wonder that this precedent
makes many uneasy in my region of southern California who are left
wandering what else is going to threaten an already uncertain water
supply situation on the Colorado River. They have witnessed the
Endangered Species impacts on Klamath farmers, then on Albuquerque and
Santa Fe urban users, and my region currently has endangered kangaroo
rats and Delhi Sands Flower-loving flies, so many wonder who the next
target will be.
The Court's opinion also speaks volumes about the state of the
Endangered Species Act. Nearly everyone agrees with the need for
endangered species protections, but it seems that more money is being
spent on litigation and waging battles in the courts than on protecting
species. No one ever intended this law to become the full employment
act for lawyers and environmental extremists, but I'm concerned that
it's going in that direction. It also says that long years of
collaboration can be hijacked by someone on the fringe not happy with
the initial outcome. It's time for a fresh look at whether the
Endangered Species Act can be carried out more effectively in a
cooperative and scientific manner. I support the efforts of the New
Mexico Delegation to bring closure to the silvery minnow issue, but a
longer term ESA fix may be necessary. This hearing is a good start in
that direction.
I look forward to hearing from today's witnesses and working with
my colleagues to resolve these issues before us today.
______
The Chairman. I'd like to remind our audience that the
expression of agreement or disagreement with any of the
statements that are made is out of order in terms of the
decorum of the House.
I'd like to now recognize a very valuable member of the
Committee, Congressman Steve Pearce, for any statement he may
have.
STATEMENT OF THE HON. STEVEN PEARCE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW MEXICO
Mr. Pearce. Thank you, Mr. Chairman. This issue is
extremely important. We have people who've driven here from
Kansas, Arizona, Texas, Colorado and, of course, here in New
Mexico. We all understand in the west that water is about
families, it's about a way of life, it's about our culture,
it's about our jobs. Water is life in the west. It gives value
to our properties. And what the Tenth Circuit Court did was say
that for one single species, all other species have to give up
their rights.
The Tenth Circuit did not mind using waters that were non-
native to keep a species alive. If that's the case, then river
water anywhere in America can be shipped anywhere else to keep
any single species alive.
Mr. Chairman, as I look at a 2000-year summary of water and
rainfall in New Mexico, we see periods of extreme droughts.
During the 13th century and the 16th century there were periods
exceeding 10 years. The Rio Grande has been dry for periods of
10 years running. In our own lifetimes we've been witness to an
extremely wet period. The 1950s, I can remember the droughts of
the 1950s, and they did not reach the extremes of the droughts
that we've seen in history. The minnow stayed alive during all
of those times of drought, of dryness.
We have a system of reservoirs to store water in this
state, four reservoirs. The Rio Grande runs basically down the
center of our state, but four reservoirs up north in New
Mexico, they were built to store water so that in periods of
drought we would be able to provide water to our farmers along
the acequias and along the river.
I witnessed, in my last year in the legislature in 2000,
the judge's order which released 50 years' worth of water in
storage during 1 year to keep the minnow alive. That's like
working your whole life and spending your whole bank account
for nothing, because that water is gone. During my last visit
to the state here in August there were four-wheel tracks where
people were driving their ATVs in the river bed. We cannot
sustain the flows that the judges and that the extreme
environmentalists said had to be there. And we've given up 50
years' worth of storage in the process.
Mr. Chairman, it is time that we consider humans in this
equation. The Supreme Court has said that water is a private
property right. The Constitution of the United States says
that, on the Fifth Amendment, that if the government takes
private property rights it will compensate those people that it
took private property rights from. I live in this state and I
do not know one person who was compensated last year, either
irrigators of the City of Albuquerque for the water that was
taken, I have not seen anyone talking this year about the
payments that are going to be made for the loss of farms, for
the loss of livelihoods.
The Native Americans in New Mexico have lived in periods of
drought and greater rain throughout history. The Spanish came
through 400 years ago. New Mexico has 400 years of
cooperatively working to share a shortage, and now the Tenth
Circuit Court, Judge Parker, say that it's got to go for one
purpose. I don't think that's right. I don't think that's fair.
Mr. Chairman, I thank you for holding these hearings
because we must look the people in the eye who are talking
about taking the water from. There are people that are going to
testify today who had families in this valley for 400 years.
You'll hear from the Native Americans who've been here even
longer. The Constitution is extremely clear that the Federal
Government only has those rights given to it expressly, that
all other rights are reserved from the states. Water is a state
issue because water is not given to our Federal Government. Our
Constitution says so.
I've submitted a bill, Mr. Chairman, that should be coming
before the Committee, which simply says the Federal Government
can't take water to enforce any law; that water belongs to the
state and to the people of the state. Water belongs to the
people, and I think we're going to hear the compelling stories
today of the loss that's being incurred because we have let our
endangered species get out of bounds.
Mr. Chairman, I applaud you and thank you for being here.
The Chairman. Thank you.
[The prepared statement of Mr. Pearce follows:]
Statement of The Honorable Stevan Pearce, a Representative in Congress
from New Mexico
Thank you, Mr. Chairman. I appreciate your willingness to hold this
hearing today, and to come see for yourself the impact the recent
ruling by the 10th Circuit Court of Appeals is having in New Mexico. As
you can see by the impressive turnout today, New Mexican's are
seriously concerned about having their water taken away from them.
If there are no objections and with your permission, I'd like to
include in the record a copy of the videotape from this morning's
rally.
Mr. Chairman, it is terribly disappointing that both Governor
Richardson and Mayor Chavez declined the Committee's offer to testify
today. This is the most important issue facing New Mexico, and will
continue to be a problem into the foreseeable future. It would have
been nice to have Governor Richardson and Mayor Chavez here, however,
we are going to move forward with this public dialogue, and try to find
solutions to resolve our water crisis. The only way we are going to
resolve this issue is by working together to find a solution. We will
not find a solution by leaving out those who are directly impacted, and
we will definitely not find a solution through litigation, which is
divisive, and takes away private property rights from the rightful
owners.
There is no justice, common sense or collaboration through
lawsuits, many of which are filed by those who have no claim to the
water, and who won't lose farms, ranches and homes from the courts ill-
conceived rulings, rulings that take away water rights--the lifeblood
of New Mexico. Federal judges who make these decisions are also not
directly impacted. They never have to see the consequences of their
decisions. They don't see the heartbreaking decisions made by farmers
and ranchers like Corky Herkenhoff, who decided to idle more than 1/3
of his land because of the uncertainty of receiving the water they have
a right to use.
There is no common sense when federal judges insist on New Mexico
releasing water that took us 50 years to store, particularly when the
West and New Mexico are in the middle of a severe drought. Releasing
water at the rate of 300 cubic feet per second is not sustainable.
According to a study done for the State Engineer, the Middle Rio Grande
experiences a drought about once a century, and experienced mega-
droughts in the 13th and 16th Centuries. Since the 16th Century New
Mexico has experienced six droughts that lasted for more than 10 years,
(11, 12, 15, 15, 17, 21 year durations) the longest being 21 years.
Both the 13th and 16th Century droughts correlate with known
abandonment of pueblos and cultural shifts by the Native Americans
living in the region. Those droughts saw the Middle Rio Grande go dry
for 10 year periods, yet the silvery minnow survived those droughts.
We don't know how long the current drought will last. We do know
that even if we come out of the drought tomorrow, New Mexico will be
faced with a drought in the future. It should be left to New Mexicans
to decide how to allocate the water within the state. This is
guaranteed to them by the Fifth and Tenth Amendments to the
Constitution. New Mexico, and not the Federal government, owns the
water rights in the state, and we should have the power to decide when
and how to use the water we own.
My bill, H.R. 2603, does just this Mr. Chairman. It guarantees that
those who hold the water rights can exercise those rights. It returns
primacy to the states, where it belongs. It protects the Fifth and
Tenth Amendments of the Constitution. It protects Native American water
rights. My bill is a step in the right direction because it once again
returns to the states the right to allocate and adjudicate water
rights, instead of having those water rights usurped by federal judges.
Mr. Chairman I appreciate your concern and interest in this issue,
and the time you have taken away from your family to be here. Together
we can find a solution for this problem. I look forward to working with
you and other Members, my constituents and the citizens of New Mexico
to resolve this problem.
Thank you. I yield back the balance of my time.
______
The Chairman. I'd like to now recognize Congresswoman
Heather Wilson for any statements she may have.
STATEMENT OF THE HON. HEATHER WILSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW MEXICO
Mrs. Wilson. Thank you, Mr. Chairman, and thank you very
much for coming here today. Joe and Ken thank you for coming.
Joe, I know this is your hometown and you like to get back here
and we're very, very glad to have you here.
Steve, thank you for hosting this today and for your hard
work in making this possible.
Senator Pete Domenici asked me to submit a written
statement on his behalf, and with unanimous consent I'd ask
that that be added to the record.
The Chairman. Without objection, we'll include it in the
record.
Mrs. Wilson. Thank you, Mr. Chairman.
[The prepared statement of Senator Domenici follows:]
Statement of The Honorable Pete V. Domenici, a U.S. Senator from the
State of New Mexico
I thank the House Resources Committee and Chairman Pombo for
holding this hearing in New Mexico on one of the most contentious and
significant issues in my home state. I also extend my regards to
Congressman Pearce, who has done a fine job representing Southern New
Mexicans over the past year. Further I would like to give special
thanks to Congresswoman Wilson for attending this hearing and
introducing my statement. Also let me acknowledge Congressman Udall for
his attention to this matter.
Mr. Chairman, New Mexico is facing ever increasing pressures on its
water supply. These pressures come from within--increasing population,
changing demographics--and from without--lingering drought, federal
Endangered Species Act requirements, etc. Indeed, the silvery minnow is
only one of a host of factors that have put farmers and cities and
pueblos in the predicament we face today. I believe that it is
important that we recognize the complexity of the problems that we New
Mexicans face in order to best come to productive solutions.
One of the most publicized and discussed of these factors is the
silvery minnow in the Middle Rio Grande. Indeed, it is the subject for
which this hearing is being held. I've been involved with this issue
since long before the minnow was even listed as an endangered species.
I voted for the ESA and its subsequent amendments almost 30 years ago.
I don't think anyone can reasonably argue against the intent of the ESA
as a just one. But I don't think the latter day implementation of the
ESA is what Congress intended either. We envisioned this Act as a means
to protect and recover species on the brink of extinction because bio-
diversity is a vital concern. However, we did not envision the ESA as a
tool to exert an all encompassing power and control over state water
supplies and public lands. This is the sort of thing that has occurred
on the Rio Grande with the silvery minnow.
The minnow situation came to a head in June with the release of the
10th Circuit's 3-judge panel decision affirming a ruling that
essentially gave ESA precedence to contracts established prior to its
adoption and granted the Bureau of Reclamation a form of discretion
that it never had before. While an appeal to the full 10th Circuit is
ongoing, I have taken steps towards mitigating the opinion's effects on
New Mexico. I introduced language on the Senate Energy and Water
Appropriations bill that will do the following two things: (1) prohibit
the federal government from involuntarily taking inter-basin transfer
water for ESA purposes on the Rio Grande; and (2) mandate the
implementation of the 2003 U.S. Fish and Wildlife Biological Opinion's
reasonable and prudent alternatives as the foundation for the minnow
recovery plan. The language will put a ceiling on how much water can be
used to recover the minnow without preventing the appeal to the 10th
Circuit.
I hope that New Mexico can take this latest adversity and turn it
into an opportunity. The problems created by attempting to save the
minnow highlight the growing need for New Mexico to better manage its
water and move forward with modernization and adjudication efforts.
Even should the minnow be fully recovered and de-listed, pressures will
continue to mount against New Mexico's water unless we take active
steps towards addressing them.
______
Mrs. Wilson. I think today's hearing is about protecting
water rights it's a very simple and straightforward issue;
that's what today is about. And it's about making very clear
that I believe the U.S. Congress has already acted and said
very clearly that the Tenth Circuit Court decision was wrong.
It was wrong on what the law is and it highlights the need to
clarify the law for it.
The Endangered Species Act does not authorize the Federal
Government to take water it doesn't own. It does not authorize
the seizing of water without paying for it. The water in the
Rio Grande, particularly the San Juan-Chama project, belongs to
the cities and the people, and the ranchers and the farmers
that worked in the 1960s to bring that water to New Mexico.
The Endangered Species Act was never intended to apply to
non-native water. This is not even Rio Grande water. This is
water from the other side of the Continental Divide, brought to
the Rio Grande to the Heron Reservoir, through 26 miles of
tunnels built with Federal money paid for by cities up and down
this state, and it's not native to the Rio Grande.
If they can take water without paying for it, if they can
take water that's not even native to the Rio Grande, then they
can take anybody's water. They can take water from Missouri
that is trucked in, they can take this water and where every
single one of us go down to the river and pour it in. That
wasn't what the law is for and it needs to be clarified.
The House has now acted and clarified, there's an
overwhelming voice vote in the House of Representatives to an
amendment that Steve Pearce and I put on the Energy and Water
Appropriations bill. And that bill, that amendment says the
water from the Middle Rio Grande project, and from the San
Juan-Chama project, that includes all of the irrigators and all
of the water purchased by the City of Espanola, to Taos, Los
Alamos, and Albuquerque, Belen and Los Lunas, cannot be used
for the purpose of complying with the Endangered Species Act.
In the Senate the, our two senators, Senator Bingaman and
Senator Domenici, have comparable legislation to address this
issue and to override an incorrect decision by overreaching
courts.
I don't think today is about whether we'll recover the
silvery minnow or whether we want to protect the endangered
species, because we all do. In fact, working with our senators
over the last 5 years, we've got 24 million dollars in Federal
funds for the restoration of the Rio Grande, for the
eradication of salt cedar, the improvement of efficiency of our
irrigation system and for the recovery of the silvery minnow in
a kind of ground-breaking project operated by the City of
Albuquerque at the zoo to breed the silvery minnow and restore
the endangered species. And we're thinking outside of the box
on our water future, on research and development, on
desalinization and of brackish water, on interstate utility
law. It is easier to put in a natural gas pipeline across state
lines than it is to put a water pipeline in across state lines.
It's not about whether we will recover this species, that's
not the issue here. But the reality of today is that none of
all these efforts of conservation matter, none of them matter
if the Federal Government can seize our water rights and take
our water without paying for it. We can never plan for our
water future if they can do that.
We can't underestimate the importance of the issues we're
addressing today. San Juan-Chama project water is planned 70
percent of the water supplied to the City of Albuquerque; 30
years from now if we don't have that water, when you turn on
your tap there won't be any water coming out of it. That's how
serious this issue is.
And it's not only for Albuquerque, that water has been
purchased by the citizens of Santa Fe, and Espanola, and Los
Alamos, and Belen, and Los Lunas, and Bernalillo, and Taos, and
three tribes, and brought here to New Mexico to plan for their
future. If the Federal Government, 4 years after the fact, 4
years after the project was started, can just walk in and say,
``I'm sorry, we're taking your water,'' how do you go to the
next bond issue and say, ``Oh, want you to raise your water
rates to plan for your water future,'' if somebody can take it
away from you or take it away from your children? We can't. And
that's why Congress must step in and restore the balance of New
Mexico water rights so that we can protect our water for our
children and for our children's children.
Mr. Chairman, again, I thank you very much for holding this
hearing today and for hearing directly from people who are
affected, why Congress must act and we must insist that we fix
this problem now.
The Chairman. I would like to now recognize our first panel
of witnesses: Ms. Jessica Sanchez, who is a family farmer and
rancher representing the New Mexico cattle growers and New
Mexico Farm and Livestock Bureau; Ms. Eileen Grevey Hillson
from AguaVida Resources; The Honorable Anthony Ortiz, Governor
of the Pueblo of San Felipe; Mr. John D'Antonio, New Mexico
State Engineer; Ms. Alletta Belin, New Mexico Counsel; and Dr.
Tom Wesche, HabiTech, Incorporated.
Before the witnesses testify we will, it is customary for
the House Resources Committee to administer the oath. I'd like
you, all the panel to stand and raise your right hand.
[witnesses sworn.]
The Chairman. Let the record show they all answered in the
affirmative.
I would like to now recognize Ms. Jessica Sanchez to
testify for 5 minutes. All of the witnesses' oral testimony
will be limited to 5 minutes. You're entire written testimony
will be included in the official record, but if you could limit
your oral testimony to 5 minutes it will help to get to the
question and answering and to stay within our time limit. In
front of you is the lights there, and it works just like a stop
light; green means go, yellow means hurry up, and red means
stop. And so as you watch the lights it will give you an idea.
Ms. Sanchez, if you're ready you can begin.
STATEMENT OF JESSICA SANCHEZ, FAMILY FARMER AND RANCHER, BELEN,
NEW MEXICO
Ms. Sanchez. Representative Pombo, members of the
Legislature, Congressmen of the United States, families,
neighbors and friends, all are welcome. Good morning and
welcome to Belen, New Mexico, my beloved town.
I appreciate this opportunity to come on behalf of my
friends, my family and some of the organizations that are
imposed in these matters and are affected by the Endangered
Species Act. The organizations that I'm referring to are New
Mexico Cattle Growers, New Mexico Farm Bureau and the Rio
Grande Water Association.
I am the oldest of nine children of the family of Roland
Sanchez and Elia Sanchez. Our forefathers came to this valley,
the Rio Grande Valley with Juan de Onate.
Our family has been in this valley for the last 400 years.
They created and established the rights of water and the rights
of the land with three different nations, Spain, Mexico, and
later the United States of America. And this was done on the
Treaty of Guadalupe Hidalgo. Now we are told that there is
Endangered Species Act compliance and that we may lose these
rights which we have worked for for 100 years. And the water
rights are no different than the blood that runs in our veins.
With your permission this is all that we are going to
interpret. Thank you.
Mr. Chairman, Committee members, you know I have submitted
a testimony concerning the issues in the written copy addressed
here today, and I will do my own best to just overview a few
critical points if time allows.
There are many devastating examples of the toll we have
taken due to the past decision involving the silvery minnow and
the southwest willow flycatcher. One of these examples is my
grandfather, Florian Padilla, who I am very proud of. I
remember being in the fields with him when he was, when I was
younger; my sister, he would take us out to the chili fields he
would show us how to irrigate and care for this land, just as
his forefathers taught him before. So it is sad for me to see
that he has lost over 30 percent of his crop this year due to
the judgment regarding the silvery minnow and the willow
flycatcher brought forth by the Endangered Species Act. He is
just one example of the many farmers and ranchers in this area
whose livelihoods have been affected by this decision.
My family is much like many of the others in New Mexico,
and in the west, who are trying to hold on to the last bits of
customs, cultures and land.
There is probably no single segment of society, in my
opinion, that is concerned with more, or more instrumental in
conserving wildlife and the environment than those of us
involved in agriculture. We love the land and work it every
single day.
We provide homes and habitats for countless species every
day without even thinking about it. We are the first and the
foremost conservationists, and environmentalists, of this land.
But our conservation practices have been infracted upon by
decisions made on part of the minnow and the flycatcher.
I am neither an attorney or biologist. I am a graduate in
Agriculture of Animal Science, but the information given has
told me that there is not enough science to base sweeping
decisions that cannot only destroy families and economies, but
animals as well.
The case, The Rio Grande Silvery Minnow and the
Southwestern Flycatcher versus Keys case is an example, great
example of this fact.
We are told that the minnow must have constant water supply
in order to survive. If there's one major thing that can be
done in order to give them this constant water supply, it's to
take out the non-native salt cedar from the rivers. OK, we've
got the technology to do that, let's go ahead. But wait a
second, we can't do that, the willow flycatcher may need that
non-native salt cedar in order for its nesting habitat.
So my question is, are we protecting the silvery minnow or
are we protecting the willow flycatcher? This is a glaring flaw
in the Endangered Species Act. If we don't get our water
promised to us under contract, my family, the family I love,
and others, will lose their field, which results in a loss of
feed to our cattle, which can only be replaced by the purchase
of alternative feed and added cost.
I'd like to thank you all again for coming to New Mexico.
Our rural communities are dying of this exodus and our land is
suffering with the catastrophic effects of mismanagement at the
hands of our Federal Government. If we cannot count on our
justice system for common sense and fairness, we look to
leaders like you to help make the changes necessary.
Please help take time to listen to those who have been
suffering at the hands of the Endangered Species Act. As I have
said, we are the best conversationalists that this nation has
and we need your help in order to protect, not only the land,
its creatures, but also our families, communities, our customs
and cultures. It is imperative that you act on this issue
before we lose another farming season.
I know we have addressed two species here today, but there
is a third, and that's the human race. The decision made has
taken a toll on us economically, physically and emotionally.
The land is our soul and the water is our life blood. I beg you
to help the community, my family and me, to hold on to the last
shred of heritage that we have left.
And as I started with bienvenidos, welcome, I leave you
with bienviaje, good journey, because it is a good journey that
we have embarked on here together today. Thank you.
[The prepared statement of Ms. Sanchez follows:]
Statement of Jessica Sanchez, New Mexico Family Farmer & Rancher, on
behalf of the New Mexico Cattle Growers' Association, New Mexico Farm &
Livestock Bureau and Rio Grande Water Users
Mr. Chairmen, members of the Committee, my name is Jessica Sanchez
and I live here in Belen, New Mexico. On behalf of the New Mexico
Cattle Growers' Association (NMCGA) and the New Mexico Farm & Livestock
Bureau (NMFLB) and all of agriculture impacted by the Endangered
Species Act (ESA), let me begin by expressing our sincere appreciation
to you for this hearing today and taking the time to come to New Mexico
to learn first-hand about the tremendously negative impacts of the
Silvery Minnow and the ESA on our existence as farmers and ranchers.
As for a little history about me, I am an animal science graduate
and local farmer. I am neither an attorney nor a biologist. But, I
believe my stake in this battle is much greater and with greater
tenure. My family has been in agriculture in this part of the world
since Onate--that's over 400 years--and a heritage we are proud of. I
am the oldest of six children, ranging from 13 to 26 years of age, and
the daughter of Dr. Roland and Elia Sanchez. We have a family farming
operation here in the valley, growing alfalfa and other hay species on
350 acres. In addition, we run 250 head of registered Santa Gertrudis
cattle. We feed the hay we grow to our mother cows and then to
background our cattle for our value-added natural beef program, as well
as selling hay to our neighbors for their livestock operations. We have
a ranch at Encino, New Mexico, and lease ranch pastures in other
various parts of the state.
In today's agriculture economy, that is not enough income to raise
six children. Thus, my father has a ``side job'' as a physician,
practicing family medicine in our community. My mom and dad built this
operation from scratch using the heritage and traditional model of
their families' farms. My brothers and sisters and I have worked with
our parents on the operation for as long as I can remember, just as
they did with their parents. We are constantly looking at ways to
maximize efficiency, while caring for the natural resources entrusted
to us. Our natural beef sales program is just one example of adding
value to our product to enhance income to our family farm.
My grandparents on both sides of the family have always made their
living in agriculture. They raise chili, a crop New Mexico is known for
the world over. As a result of the water ruling, my grandpa, Florian
Padilla, has lost approximately 30 percent of this year's chili and
other row crops. This farm has been his life and his income. It's
heartbreaking to see the devastating effects of the ESA on Grandpa. He
has shown us, since we were young, how to irrigate and care for the
land, handing down his cultural traditions as did his forefathers
before him.
My family is much like any number of others in New Mexico and the
West who are trying their best to hang on to the last bit of our
custom, culture and land. We here in the Southwest are accustomed to
dealing with the impacts of Mother Nature--drought is just another
piece of our culture and has been for literally centuries. We are used
to dealing with the effects of a cyclic market, although globalism is
having its impacts. However, that is a subject for a different hearing.
The ESA is the killing factor that we have no control over and no
tools to deal with. We are at the mercy of endless litigation and the
courts. Adding insult to injury is the total lack of common sense,
balance and reality of the Act. The ESA, in it current form, does
nothing to promote collaboration and local solutions.
There is probably no single segment of society that is more
concerned with or more instrumental in conserving wildlife and the
environment than those of us involved in agriculture. Farmers and
ranchers are the most effective conservationists--and
environmentalists--I know. We love the land and work it every day,
which is our motivation to create and protect habitat for all species,
including mankind. We have lived in harmony with the land and its
wildlife for generations. Were it not for agriculture protecting the
land, there would surely be much less diversity of species than we have
today. And, we feed and clothe our nation and part of the rest of the
world while we are at it. Less than two percent of the American
population is involved in agriculture, yet our country has the highest
standard of living in the world and are able to provide food for much
of the rest of the world.
The Rio Grande has gone dry countless times over the past several
centuries, yet there are still silvery minnows, southwestern willow
flycatchers and numerous other creatures that live up and down the
river. How can that be?
As I said, I am not a biologist, but this tells me that there is
not enough science to base sweeping decisions that cannot only destroy
families and economies, but animals as well. The Rio Grande Silvery
Minnow and the Southwestern Willow Flycatcher versus Keys case is an
excellent example of this fact.
We are told that the minnow must have a constant water supply to
survive. If there is one major thing that could be done to increase the
water supply along the Rio Grande, it is to remove the non-native salt
cedar that guzzles the water from the river. Great, let's go eliminate
salt cedar. We have the technology to do that, so why aren't we?
Wait a minute. We can't do that. The flycatcher may need that salt
cedar for its nesting habitat. Are we trying to protect minnows or
flycatchers?
This situation clearly points out a glaring flaw in the ESA.
Protecting single species can, and is having tremendous impact on other
species. If the goal is truly to protect species, we must look at the
cumulative impacts on multiple species. If we don't or the animals
being protected are doomed to failure, as are we. There must be
educated decisions that balance the needs of all species--including
humans.
To quote the dissenting opinion of 10th Circuit Court of Appeals
Judge Kelly, ``Under the court's reasoning the ESA, like Frankenstein,
despite the good intentions of its creator has become a monster. The
ESA was never meant to allow the federal government, on behalf of
endangered species, to overturn established precedent.''
I couldn't agree with Judge Kelly more. We along the Rio Grande
Valley have based our lives and our livelihoods on the river for
literally centuries. We have counted on contracts for water delivery
with our government to run our operations for decades. Breaches of
those contracts in the form of reductions and disruptions of our water
supply are costing us not only in terms of the crops we are losing
directly, but also in production inefficiency. We never know when we
are getting water. When it comes, we must use it or lose it regardless
of the time, day or night. We haven't been able to plant in our fall
fields nor maintain the pasture rotations that renovate the soil. In
addition, fallow fields will increase the invasion of weeds that our
communities are dealing with. If we plant to help the soil and protect
from weed invasion, we are gambling with $60,000 just for seed, on our
farm alone. Costs of fertilization, labor and equipment wear and tear
are all additional. Will we ever have the water to properly care for
our land?
If we don't get our water promised under contract, and loose one or
two cuttings of hay, we have lost feed for our cattle, which can only
be replaced by the purchase of alternative feed, at added cost. But we
still have the same costs in our equipment, land and operating loans,
whether we are using it productively or not. And I can tell you,
without water, it is not productive. We are still paying the same water
taxes, whether we receive water or not. Our neighbors who purchase feed
from us are forced to go elsewhere if we cannot provide the hay they
need. When they must leave the valley for feed it is often at a higher
cost of and product.
Agriculture has come to depend upon contracts with our government
for everything from water to risk management to conservation. If the
government cannot be held accountable to those contracts due to later
changes in law, such as the ESA, what good is entering into a contract?
Even more confusing is that the fact that although, apparently our
contracts with the government are meaningless, New Mexicans are being
forced to deliver water to Texas under historical contracts and court
decisions. Not only is the double standard unfair, but also why are
only a few Americans being forced to bear the burden of the ESA? If the
Act is the will of the public, shouldn't all Americans be paying the
price for their desires? How much is the rest of America paying due to
the silvery minnow and willow flycatcher?
The whole ESA requires a strong overhaul. It was a well-intended
law designed to protect nationally significant species. Instead, it has
become a weapon--a monster--that is destroying our custom, culture and
families. The emotional toll on all of us is immeasurable. Our elders
are suffering because they are not being allowed to care for their land
and their animals. Our youth are being driven from the land in search
of the ability to care for their families. Health care is well beyond
the means of most agricultural incomes, which forces young people to
commute or move to urban centers where benefits are provided with jobs.
Our rural communities are dying with this exodus. Our land is
suffering the catastrophic effects of mismanagement at the hands of our
federal government.
If we cannot count on our justice system for common sense and
fairness, we look to you, our representatives in Congress to change the
law. Simple band-aides aimed at addressing specific situations will not
solve the problems.
It is not only those of us along the Rio Grande who is at the mercy
of the ESA for our water. The San Juan, the Pecos and the Canadian are
other rivers in New Mexico that will soon be in the same situation.
And, we can never forget what the ESA has done to Klamath Falls,
Oregon.
Congressman Pearce's H.R. 2603 addresses this issue with regard to
water contracts, and starts the process toward reforming the ESA. The
government should not be able to modify the delivery, allocation or
storage of water to be delivered under contract. But this is only the
first step in addressing the inequities of the ESA.
New Mexico agriculture came together last year and developed the
attached list of 17 changes in the ESA that would put a heart and brain
in the Act. We hope you will seriously consider making these necessary
changes in the current law.
Thank you once again for coming to New Mexico and for taking the
time to see those of us who are suffering at the hands of the ESA. As I
have said, farmers and ranchers are the best conservationists this
nation has and we need your help in protecting not only the land and
its creatures, but our families, our communities, and our custom and
culture. It is imperative that you act this issue before we lose
another farming season. Your actions will impact not only we farmers,
but our entire communities. If we are not financially able to
participate in commerce in our hometowns, local businesses like grocery
stores, car dealership, and other mom and pop operations will die with
us. Counties are unable to function without our tax contributions.
I know that we have addressed the protection of two species here
today, but there is a third one that is involved as well. That is us,
the human race. Decisions that have been made have taken their toll on
us economically, physically, and emotionally. Help me and others regain
trust in our leaders in order to know that my hard work on the farm
that has paid for my education will not go to waste.
The land is our soul and water is our lifeblood. Please, I beg you,
help my community, my family and me hold on to the shreds of heritage
we have left.
______
[An attachment to Ms. Sanchez' statement follows:]
[GRAPHIC] [TIFF OMITTED] T9218.001
The Chairman. I'd like to remind our audience that any, any
recognition, either pro or con, is not allowed under the rules
of the House.
I'd like to now recognize Ms. Grevey Hillson for her oral
testimony.
STATEMENT OF EILEEN GREVEY HILLSON, AGUAVIDA, RESOURCES,
ALBUQUERQUE, NEW MEXICO
Ms. Grevey Hillson. Chairman Pombo, members of the
Committee, Representative Wilson. My name is Eileen Grevey
Hillson. I'm an Albuquerque native, where the people have lived
for over 300 years. I own a water consulting business called
Agua Vida Resources, and my academic and professional
background is in natural resources, with an emphasis in the
water arena. I am here today representing one of my clients,
the Albuquerque Business Water Task Force.
It's members include organizations such as the New Mexico
Chapter of the National Association of Industrial Office
Properties, the Greater Albuquerque Chamber of Commerce, the
Albuquerque Economic Forum, and the Home Builders of Central
New Mexico. It's a privilege to be invited here. Thank you for
coming to Belen and giving us the opportunity to visit with
you.
Chairman Pombo, you asked in your invitation letter about
the impact of the Rio Grande silvery minnow on the State of New
Mexico. From a business standpoint it could simply be summed up
like this. Business needs certainty to stay here, to expand
here, and certainly to locate here. To the extent that the
decisions of how to protect and recover the silvery minnow,
under the ESA, create uncertainty about the amount and
reliability of water supplies available for human uses in our
state, then the impact of the fish is decidedly negative. But
it's more complicated than that.
In keeping with the spirit of your holding this hearing in
our western state, I will respond to the title that only Clint
Eastwood movie called ``The Good, the Bad and the Ugly.'' The
late Adlai Stevenson once said that man is a curious animal, he
never sees the writing on the wall until his back is up against
it.
The good impact of the silvery minnow, besides trying to
recover the species, is that in the midst of a drought with all
of the other things that relate to scarce water supplies, the
silvery minnow has forced onto the radar screen of almost all
New Mexicans the need for us to be proactively involved with
the most effective, efficient water resources management.
And our state government, which I'm sure the state
engineer, D'Antonio, will address, has been very proactive in
trying to do this. We're trying to figure out who owns how much
water since where, since when, create the funding to fund all
the projects we need around the state to prevent forest fires,
to eliminate non-native species, such as the salt cedar, to do
flood control, and to have the money for endangered species
recovery programs, and to have market transfer mechanisms.
Another good thing about the minnow is that it has spurred
regional collaboration, efforts such as the Middle Rio Grande
Endangered Species Act collaborative program, of which I am
very honored to serve as the vice chair, seek to have
representatives of the Federal, state, local government, tribal
government, along with farming, environmental, business and
university representatives, recover the minnow in a way that
allows both the human and the endangered species to coexist.
Albuquerque has certainly gone the extra mile, and perhaps
even a few more miles, because of the silvery minnow and its
stewardship of riparian environments. And the business
community which I represent came to the table, in large
measure, due to the silvery minnow. The Minnow versus Martinez,
which is what Minnow versus Keys was originally called, and the
Middle Rio Grande Conservancy District versus Babbitt case,
involving the critical habitat designation of the silvery
minnow, really galvanized us into coming to all of the tables
where water policy decisions are being formulated and
implemented.
The U.S. Fish and Wildlife Service has tried to have a
flexible partnership with all of us, and that's a good thing
that has come perhaps from the minnow. And what has really
become a good thing from the minnow is the fact that we, as New
Mexicans, have come very clearly to recognize that we are
interconnected and interdependent through our water resources
and that we are all going to hang together or hang alone.
Now what is the bad? The bad can be summed up in two words
``the ruling.'' The Tenth Circuit Court of Appeals' ruling
where the Federal Government, as members of the Committee and
Representative Wilson have already mentioned, seizes our water,
violates water rights, takes the unprecedented step of taking
water from one river basin, the Colorado, into the Rio Grande
River for uses that were intended to be cities', farmers', the
Pueblos, and replaces that with serving the minnow. As our
Attorney General Patsy Madrid said, it sends cracks through the
foundations of state water law, it creates a climate of
uncertainty for the users.
Judge Kelly, in his dissent, in that decision stated that
the Bureau of Reclamation, without any recognized property
right to water, may now use the San Juan-Chama Middle Rio
Grande project water to provide in-stream flow to the minnow.
In so holding, the court injects uncertainty into settle
contractual obligations and profoundly alters in disregard of
relevant statutory and regulatory authority the obligations of
Federal agencies under the ESA. This is probably why nine other
states have joined in the Amicus positions and are being
against this decision.
It takes water from the city, as Representative Wilson
said, and from cities all up and down the valley where there
have been a vision and commitment decades ago, and two to
three, in the case of Albuquerque, generations of ratepayers
making a commitment to get this water and to divert it, and
treat it, and distribute it to its population, and it renders
all of that effort meaningless.
And as Representative Calvert said, it definitely--you
stole my line--puts real meaning into ``no good deed goes
unpunished.'' In a myriad of ways the City of Albuquerque has
tried to help the minnow through leasing water, through doing
all kinds of mitigation efforts. It wreaks havoc on the water
resources management strategy of the city whose cornerstone is
San Juan-Chama water, so that we can switch from the
unenvironmentally sound mining of our aquifer into diverting
the surface water that comes from another basin.
It creates grave consequences that are similar, as speaker
Sanchez mentioned, for the farmers and Pueblos. It doesn't
foster greater cooperation, but mistrust. Just as we need a
greater Federal-state cooperation on the endangered species
issues, the Tenth Circuit Court ruling tears this apart.
The ugly: If business needs certainty to stay here, to
expand here, or to locate here, then certainly these unsettled
contractual expectations, which now can't be met because of the
ruling, are going to create uncertainty. We hired an economic
consultant to study the value of the San Juan-Chama water to
Albuquerque, and he said, with less expected economic growth
the Albuquerque economy will be unable to meet the need of the
next generation of young people, narrowing or closing their
options to live in Albuquerque.
In other words, not only did we agree to seven rate
increases since 1997 to secure our San Juan-Chama water and to
have it taken away from us possibly at the last moment when we
were about to use it, but it will impact our economy in such a
way as that our own children will not be able to have the
option to stay here. Now, as a mother of four children, I want
to tell you that is ugly.
Since we wouldn't abandon Albuquerque, the city, what would
we do? All the possibilities are unpleasant. We can't continue
to mine the aquifer, so we could just lose 50 million dollars,
plus, and go seek for replacement water, desalinization of
produced water, our good out-of-the-box solutions for down the
road but the money, the environmental, legal questions make
them impossible to replace our San Juan-Chama in the short
term. We could buy all that water from our neighboring farmers
but, as I've been told, we could do that as soon as we could
pry it loose from their cold, dead fingers. And besides that,
that massive amount of whole scale transfer of water would
probably run into problems with the state engineer's
obligations regarding transfers.
The ruling sets rural folks against urban folks. It
polarizes our community. We do not want to be Klamath on the
Rio Grande. So, we recognize that we are the life that wants to
live in the midst of other life that wants to live. We want to
work collaboratively.
What do we want? We want to support the rehearing that has
been asked for en banc of the Tenth Circuit Court of Appeals so
that this ruling can hopefully be overturned. We want to
support Governor Richardson's efforts to negotiate with all the
parties to reach a solution, a local solution for here in the
Middle Rio Grande.
We want to support the legislative remedies that our
congressional delegation has put on the table, to take our
water off the table unless there are willing sellers. And we
want to work with you to understand if avoiding rulings like
this in the future necessitates a review of how the ESA reads a
clarification, or of how it's interpreted and implemented. And
we want your help in getting authorizing legislation to
continue the funding of collaborative efforts like the ESA
collaborative program.
We agree with Representative Wilson that this has presented
grave consequences for the economy and sets a precedent that
cannot stand. We agree with Representative Pearce that we need
a balanced approach to satisfy human and endangered species
needs. Only then can we rest assured that the saga of ``the
good, the bad, and the ugly'' does not degenerate into the
shoot-out at the OK Corral.
Thank you so much for giving us the opportunity to testify,
and we look forward to working with you.
The Chairman. Thank you.
[The prepared statement of Ms. Grevey Hillson follows:]
Statement of Eileen Grevey Hillson, Owner, AguaVida Resources
Chairman Pombo, Members of the Committee:
My name is Eileen Grevey Hillson. I live in Albuquerque, New
Mexico, where I own a water consulting business named AguaVida
Resources. Both my academic training for my Bachelor's and Master's
degrees in government, as well as my professional experience with
local, state and federal government and the private sector have been
focused in the area of natural resources, most recently with a heavy
emphasis on water policy issues. I am here today representing one of my
clients, the Albuquerque Business Water Task Force, whose membership
includes organizations such as the N.M. Chapter of the National
Association of Industrial and Office Properties, (NAIOP), the
Albuquerque Economic Forum, the Greater Albuquerque Chamber of Commerce
and the Homebuilders of Central New Mexico. It is a privilege to be
invited to appear before you today on their behalf. Thank you for
coming to Belen and giving us this opportunity.
Chairman Pombo, in your letter soliciting our presentation of
testimony at this hearing, you requested that we address the impact of
the Rio Grande silvery minnow on New Mexico. From a business
standpoint, it could simply be summed up thusly: Businesses need
certainty to stay here, to expand here and to locate here. To the
extent that decisions about how to protect and recover the silvery
minnow create uncertainty about the amount and reliability of water
supplies available for human uses in the state, the impact of this fish
is decidedly negative. However, the answer is really much more
complicated than that. In keeping with the spirit of your holding this
oversight hearing in a western state, I will respond through the title
of an old Clint Eastwood movie, ``The Good, The Bad and The Ugly.''
The Good
The late Adlai Stevenson once said that ``Man is a curious animal.
He never sees the writing on the wall ``til his back is up against
it.'' The ``good'' impact of the silvery minnow, as well as its
endangered species counterparts throughout the state, is that it has
forced water onto the radar screens of New Mexicans, inspiring us to
proactively, and expeditiously learn to manage our water resources so
that we avoid having our backs up against that wall.
While in various parts of the state, among certain stakeholder
groups and within directly-involved government agencies, water has
always, or at least intermittently, been a concern, until quite
recently, most of us were pretty ignorant of and/or complacent about
the short hand Mother Nature dealt us in this area. In approximately
the same time frame that the Endangered Species Act came into being,
New Mexico entered a wet phase in its highly variable climate. With
water readily coming out of the tap in most areas, it had easily
escaped our attention that throughout the last few decades, we were
receiving more water than we had in most of the last twenty centuries.
Maintaining biodiversity was not threatening or even particularly
noticeable in that environment. The drought changed everything, making
the truth hit home: In wet years, we had barely made ends meet in terms
of our supplies keeping up with our demands. Now in dry years, with
increased populations and the same interstate compact obligations, we
just might not have enough to go around if we don't take action.
Getting the State's Water House in Order
The additional drought-induced demands placed by the silvery minnow
and its endangered comrades on an already stressed resource helped spur
us into putting our state's water house in order. Towards that end, and
with our Governor, state legislature, offices of the State Engineer and
Interstate Stream Commission leading the charge:
We have embarked on an ambitious program to, as quickly
as possible, find out who owns what water, where and since when--urban,
rural and tribal--and to have water rights information well-preserved
and accessible in a user-friendly computer data base format;
We are developing a State Water Plan to ensure the most
effective, coordinated, comprehensive management of our water resources
in a way that can addressthe state's very diverse and often competing,
social, environmental and economic needs;
We are developing tools like measuring and metering;
incentives like tax credits; rules for priority administration and
water market transfer prototypes; pilot projects for ``produced''
water; water conservation educational materials -all to ensure the most
efficient use of our water, compliance with our interstate and
international treaty contractual obligations and the equitable
allocation of the water necessary for sustaining urban, rural and
ecosystem life;
We have institutionalized various funding mechanisms for
meeting the approximately $5 billion worth of infrastructure, watershed
restoration, flood control, and endangered species recovery needs
identified throughout the state for our present 13 listed aquatic
species; and,
We have deliberately chosen to do all of the above in a
collaborative fashion that involves a geographically-dispersed, very
diverse group of stakeholders interacting with our elected and
appointed government officials.
Last, but hardly least, at least in part due to the impact of
endangered species issues,
We have recognized as New Mexicans that, like it or not,
water winds like a liquid rope throughout the state, rendering us
interconnected and interdependent. We are coming to understand that we
can either use it together as a life-rope or allow it to hang us. In
that spirit, we have collectively endorsed having our taxpayer money
used to defend the right to have New Mexico's water preserved and put
to beneficial use in New Mexico for New Mexicans.
Minnow Recovery Spurs Regional Collaboration
At a regional level, in the Middle Rio Grande, the silvery minnow
has had a positive effect, in that, to be in compliance with meeting
its water needs through the Endangered Species Act, diverse
stakeholders who might otherwise never have met, much less worked
together, have come together to begin the arduous process of recovery
in a world of competing claims for the same resource. One example of
this is the Middle Rio Grande Water Assembly, where a regional water
plan is being developed.
The example most timely and appropriate for today's discussion is
the Middle Rio Grande Endangered Species Act Collaborative Program, on
whose Steering Committee I am honored to serve as Vice Chair. The
Program was established in January of 2003 ``...to strive for the
survival and recovery of threatened and endangered species in the
Middle Rio Grande while simultaneously protecting existing and future
uses of water.''
The 19 signatories who signed the Interim Memorandum of
Understanding, committing to participate in its efforts, represent
federal, state, local and tribal governments, farmers,
environmentalists, universities and the business community. With such a
diverse membership, procedural and financial constraints and
programmatic unknowns, the program remains a work-in-progress. While
signatories have yet to gather ``round the campfire, arms entwined,
singing ``Cumbiya,'' they have realized that it is in everyone's best
interests, not to mention those of the fish, to get down to work on the
innately-right, statutorily-mandated job of recovering the species. The
Program has developed and implemented a number of recovery programs for
the silvery minnow and southwestern willow flycatcher, with the aid of
almost $30 million in funding from federal congressional appropriations
and considerable matching cash and in-kind contributions from non-
federal signatories. Further, and quite importantly, even when we have
had to agree to disagree, and ended up in litigation against one
another, at least through our discussions we probably narrowed the
areas of potential courtroom dispute--and in the meantime moved the
species that much closer to recovery. In addition, program participants
have actually engaged in mutually beneficial collaborative efforts on
non-species-related water issues as a result of our program
``networking,''--a great side-benefit in New Mexico, where money, labor
and time are at a premium.
Albuquerque Goes the Extra Mile and Educates its People
At a local level, the ESA most assuredly had an impact on the
City's Water Resource Management Strategy, both in terms of the
comprehensiveness of its programmatic content and the funds required
for its successful implementation. While the City, on its own
initiative, has for years been developing and implementing programs to
preserve and enhance its bosque areas in an environmentally-sound
manner, the coincidence of it being declared as part of the critical
habitat for the minnow no doubt speeded up and expanded its own
riparian habitat restoration activities. To their credit, the City
leaders, such as our Mayor, and his Public Works staff, have publically
promoted actions to sustain a healthy river environment as positive
contributions, rather than as onerous obligations.
In the process of informing its residents about the threats to the
City's San Juan-Chama Project water brought on by the Minnow v Martinez
(aka Minnow v McDonald and now Minnow v Keyes) litigation, the City has
made its citizenry aware of the significant potential social, economic
and environmental challenges involved in protecting the minnow. In so
doing, it has educated its citizenry to recognize the scarcity and
value of water. Thus, the minnow, may have inadvertently assisted the
City in making us all more aware and responsible stewards of this
natural resource.
The Business Community Comes to the Table
Five years ago, with few exceptions, the Albuquerque business
community was not seated at the tables where water policy decisions
were being developed and implemented. Organizations such as the
Economic Forum and the Greater Albuquerque Chamber of Commerce (GACC)
had studied various water quality and quantity issues and adopted
resolutions strongly supporting the San Juan-Chama Project, but
organized interaction with other stakeholder groups had not occurred.
The Minnow v. Martinez lawsuit, which had environmental plaintiffs
arguing that our San Juan-Chama Project water should be on the table
for helping to meet minnow needs, and the MRGCD v Babbitt case, where
it appeared that a critical habitat designation for the minnow had been
made without sufficient sound scientific and economic data, changed all
of that.
Two of Albuquerque's major business organizations--NAIOP and the
Economic Forum--formed a Joint Water Task Force. One of the key
rallying points and first action items was to hire a consultant to
research and report on the economic implications to the City and the
region of the contested issues involving the minnow and to enter amici
positions with that report attached in both lawsuits to help protect
the sanctity of our San Juan-Chama water. In the process, we began to
realize the complexity of our state, regional and local water issues
and the direct connection between how they were resolved and our very
economic sustainability. Other business organizations, such as the
GACC, were invited to join our efforts and that marked the beginning of
the Albuquerque Business Water Task Force which I am representing here
today.
Members are actively involved in a multitude of collaborative water
efforts around the state, including the Governor's Blue Ribbon Task
Force on Water, the State Water Trust Board, the Water Quality Control
Commission, the Middle Rio Grande Water Assembly, and the Town Hall on
the State Water Plan. We have started our own Business Water
Conservation Task Force with activities ranging from helping build New
Mexico's first water-efficient Habitat for Humanity home to conducting
internal studies to determine what more we can do to improve water
conservation in the business sector and the city as a whole.
We have brought our concerns on a number of water policy issues
before our City Council, to the Governor and state legislature and to
our congressional delegation. In short, in part thanks to the minnow
getting our attention, we are now fully engaged in the water policy
arena. And the minnow continues to hold our attention. Most recently,
we organized the submission of resolutions/letters of support from 17
business organizations representing several hundred thousand local
citizens to be included in the BOR's Draft EIS on the City's Preferred
Alternative for the San Juan-Chama Drinking Water Project (The
Preferred Alternative includes a significant number of projects to
protect the minnow) and, we are, of course before you today on the
subject of the Tenth Circuit Court ruling centered around the minnow.
U.S. Fish and Wildlife Service: A Flexible Partnership
The last example of a positive impact that has come from the
silvery minnow in New Mexico is the positive effort made by the
regional and local field service staff of the FWS over the last few
years to allow for increased flexibility and regulatory certainty in
the process of conserving the silvery minnow. There has truly been an
admirable attempt to develop innovative ways to work cooperatively with
stakeholders in keeping with both the 1982 amendment to the ESA (ESA
section 2(c)(2)) and the spirit of the FWS's 1997 10 Point Plan to
``Making the ESA Work Better'' (printed, 1997, reprinted, 1998) To the
extent that this positive ``can-do,'' adaptive management-type of
approach is carried out, it minimizes stakeholder conflicts and thus
contributes to the ultimate success of species recovery efforts. The
March 13th, 2003 Ten Year Biological Opinion is an example of trying to
interpret and implement the ESA in such a way that, in wet and dry
years, the feds and non-feds can work together to protect the silvery
minnow without making humans endangered in the process. From an
economic standpoint, the business community heartily welcomes these
efforts, as they promote a greater sense of stability about what is
needed to protect the species, as well as expectations that positive
outcomes will come to all water users through the recovery process.
The Bad
It is pretty easy to sum up ``The Bad'' in two words: ``The
Ruling.'' The Tenth Circuit U.S. Court of Appeals ruling in the Rio
Grande Silvery Minnow et al. v. John W. Keyes III:
Takes the unprecedented step of ordering water imported
from the Colorado River Basin into the Rio Grande Basin for use by the
people of Albuquerque and other cities, farmers and Pueblos to be used
instead for the silvery minnow;
``...sends cracks through the foundation of our State
water laws and creates a climate of uncertainty for our users.'' (News
release quoting NM Attorney General Patricia Madrid, 8/11/03)
Quoting from Judge Paul Kelly's dissent, ``The court
holds that the BOR has discretion to deliver less than the full amount
of available San Juan-Chama (SJC) and Middle Rio Grande (MRG) project
water to its contractors.'' ``...thus, the BOR, without any recognized
property right to the water in question, may use this stored project
water to provide instream flows for the silvery minnow to alleviate
jeopardy to that species under the Endangered Species Act (ESA). In so
holding, the court injects uncertainty into settled contractual
expectations and profoundly alters, in disregard of relevant statutory
and regulatory authority, the obligations of federal agencies under the
ESA.'' (Judge Paul Kelly in dissent in Minnow v Keyes, p1) (Emphasis
added); (Attorney General Madrid and Judge Kelly's remarks may explain
why nine other western states with Reclamation contracts are joining
New Mexico in attempting to overturn the decision);
Takes water that the forefathers of the City of
Albuquerque had the vision and commitment to contract for decades ago,
for use by future generations of its citizenry--and that two or three
generations of Albuquerqueans have now paid tens of millions for
through their water rates--and puts it on the table for uses other than
those for which it was intended, AND DOES THIS exactly at the time that
the City is ready to begin diverting, treating and distributing that
water to its population;
Puts real and painful meaning into the cliche that ``no
good deed goes unpunished,'' considering that the City has gone
considerably more than the extra mile in regards to assisting with
recovery of the silvery minnow itself, for example:
The City has leased unused SJC water which has
ultimately allowed for supplemental minnow water to become
available;
The City has contributed large amounts of funding,
personnel and operating costs since 1999 for the minnow
breeding program at the Albuquerque Zoo and now contributed
again, with the donation of land and design and construction
participation for the minnow's Naturalized Refugium;
The City has conducted silvery minnow swimming speed
studies to achieve design criteria for fishways;
The City is participating in minnow monitoring
studies for the Albuquerque reach;
The City organized and helped staff the 2003 minnow
egg collection;
The City has contributed staffing and management for
the ESA Collaborative Program; and last, but not least,
The City has created a plan for its diversion project
which tries to mitigate any potential negative effect on the
minnow of that diversion.
In sum, the ruling threatens to wreak havoc with the
cornerstone of the City's 1997 environmentally and financially sound,
Water Resource Management Strategy which would transition the City away
from continuing the environmentally unsustainable practice of mining
its aquifer for drinking water to using instead its imported surface
water;
The ruling has different but similarly grave consequences
for the farmers and Pueblos of the Middle Rio Grande, thus threatening
region-wide disruption of the livelihoods of hundreds of thousands of
New Mexicans.
The ruling flies in the face of fostering greater
cooperation between the ESA's implementing federal agencies and the
states, as was statutorily directed by the 1982 ESA amendment Sec 2
(c)(2); and,
Instead, the ruling creates an atmosphere of highly
unproductive mistrust into Federal/state and/or local relationships.
Just as groups like the Western States Water Council are recognizing
the significant need for federal/state collaboration to reduce
conflicts between the water use needs of endangered species and human
water users, the Tenth Circuit ruling tears them apart.
The Ugly
Judge Kelly notes in his dissent that ``This case has enormous
significance. Although the contracts at issue establish certain
bilateral rights and duties, the court's interpretation renders the
contracts somewhat illusory because the BOR will have the discretion to
modify those rights and duties, thereby rendering uncertain the
parties' settled contractual expectations.'' (p. 34 of his dissent in
Minnow v Keyes)
Now, at long last, I return to my initial response to your inquiry.
If business needs certainty to stay here, expand or locate here, and an
available and reliable water supply is important to their perception of
``certainty,'' then, as Judge Kelly implies above, the majority ruling
involving meeting the minnow's water needs with supplemental flows that
come from our contracted San Juan-Chama water could create a very
negative economic impact for Albuquerque and in fact, the entire Middle
Rio Grande. Albuquerque itself has been counting on this water to
supply 70% of its water needs to the year 2060, as it cannot safely
continue its current rate of groundwater pumping. All its prudent,
farsighted planning is now put at risk.
As our economist consultant, Dr Brian McDonald said in his report,
``Water, Regional Economic Development and the Public Welfare,--``With
future water physically constrained and less reliable, Albuquerque's
continued economic health will be undermined.'' McDonald goes on to
explain that ``...If businesses perceive our area as less attractive
due to uncertain water supplies, there will be less economic growth,
which will result in the local tax base being insufficient to provide
public goods and services which are an important component of the
region's quality of life and public welfare.'' (McDonald report, p. 2)
As a mother of four children, I would like them to have the option
to live here. Dr. McDonald dashes those hopes with his next statement,
``..With less expected economic growth, the Albuquerque economy will be
unable to meet the employment needs of its next generation of young
people, narrowing or closing their options to live and work in
Albuquerque.'' In other words, not only may I, and hundreds of
thousands of other responsible citizens here, have agreed to seven
annual water rate increases since 1997 to secure our San Juan-Chama
water to have it, through this ruling, possibly taken away at the last
moment, but the result of that action may be that our community will
not have the economic wherewithal to sustain our own children. NOW THAT
IS UGLY.
Since we would assumedly not put up with abandonment of our City
for a lack of water, what would we do? Here are some unpleasant
possibilities:
Faced with a groundwater resource that is depleting,
causing subsidence and having increasing water quality issues, we would
have to swallow an over $50 million dollar loss and go out looking for
replacement supplies;
Replacing 48,200 AF of San Juan-Chama water, at today's
cost of approximately $4,500/AF for water rights, including transaction
costs could cost the City over $300 million dollars -and that doesn't
begin to touch the opportunity cost for what we could have done with
our San Juan-Chama payments or this $300 million;
Now we are faced with the question of where are we going
to get this much water in the time frame we need it? Desalination and
oil and gas ``produced'' water could not fill the bill in such short
order, even if there were not economic, environmental and legal
obstacles involved. Could we lease that much water from the other
stakeholders on the Middle Rio Grande? For many, sure, if we could pry
it out of their cold, dead fingers;
Even assuming that were possible, now we are talking
about destroying an entire way of life for farming folks, many who have
had that livelihood as an integral part of their family heritage for
generations and generations;
Even if that were a viable, desirable option, the Middle
Rio Grande has not been adjudicated, thus rendering almost moot the
idea of ensuring timely acceptance by the State Engineer for such a
whole-scale place and purpose of use transfer of water; and
Obviously, to use the roadmap set forth through these
hypothetical responses to the loss of our San Juan-Chama water would
set urban dwellers against agricultural water users. It would polarize
our entire region, and make water policy options a zero-sum game. We do
not want to re-enact Klamath on the Rio Grande or worse, thank you very
much.
Our City Fathers, in the 1960's, took bold steps to ensure an
adequate public water supply for future generations living in a
growing, prosperous and peaceful Albuquerque, through the purchase of
the San Juan-Chama water. They charted a forward-looking path and
started down it. We are fortunate to actually have one of those
gentlemen involved in our Business Water Task Force today. It is time
for him to pass the baton to us so that we can cross the finish-line
with the diversion, treatment and distribution of water to Albuquerque
that translates his dream and that of his colleagues into our present
reality and our children's water future. And that's a peaceful water
future without a concurrent civil war with our rural neighbors. We
truly can do no less.
So, how do we propose to do this?
By offering support to all those presently engaged in
securing an en banc rehearing of the Tenth Circuit Court's decision. It
should be overturned;
By wishing all the parties well who are engaged in
Governor Richardson's efforts to find a negotiated settlement to the
competing water users' needs which have led us to this point;
By supporting the legislative remedies offered by our
Congressional delegation, through added language to the Water and
Energy Appropriations Bills, to take our San Juan-Chama Project Water
off the table as a mandated BOR ``discretionary'' fix to the
supplemental water needs of the Rio Grande Silvery Minnow, unless there
are willing sellers;
By working with you and the rest of your House Resource
Committee members to understand if avoiding rulings of this nature
necessitates a review of how the Endangered Species Act reads, or of
how it is interpreted and implemented.
We agree with our Congresswoman Heather Wilson that ``The court's
decision has enormous consequences for all western states where water
is such a valuable resource and critical part of the economy'' and that
therefore, ``This sets a precedent we can't allow to stand.'' (press
release, August 30) and with our Congressman Steve Pearce, that we
``need to find a balanced approach to satisfy the needs of both human
water users and endangered species.'' (press release, August 30)
We look forward to working with you all to ensure we reach that
balanced approach. Only then can we rest assured that the saga of ``The
Good, The Bad and the Ugly'' doesn't end with a ``shoot-out at the OK
Corral!''
Once again, on behalf of the Albuquerque Business Water Task Force,
we greatly appreciate your interest in and commitment to making the ESA
work in the west for both human and endangered species, and your giving
us the chance to share our views.
NOTE: Exhibits attached to Ms. Grevey Hillson's statement have been
retained in the Committee's official files.
______
The Chairman. I'd like to now recognize The Honorable
Anthony Ortiz.
STATEMENT OF ANTHONY ORTIZ, GOVERNOR, PUEBLO OF SAN FELIPE,
ACCOMPANIED BY SUSAN WILLIAMS, LEGAL COUNSEL TO PUEBLO OF SAN
FELIPE
Mr. Ortiz. Good morning. Good morning, Chairman and
Honorable Congressional Delegates. It is an honor and a
privilege to be before you here today to give testimony on
behalf of my tribal council. So on behalf of my tribal council,
the Pueblo of San Felipe highly values water. It is important
to all of our customs and traditions. We do not waste water.
We have lived on this land over a thousand years and find
joy in the spiritual connection we share with the water and the
land that the Creator has provided to us.
We are concerned that the Federal Government is not living
up to its trust responsibilities because of the Department of
the Interior is not protecting our senior Federal reserved
water rights. This is a great threat to the survival of our
ancient customs and traditions.
For example, the Bureau of Reclamation is refusing to store
sufficient water to our use, in clear violation of Federal law.
Additionally, Reclamation continues to make unauthorized
illegal releases of our storage water.
The United States also has failed to adequately maintain
the Pueblo's water delivery system.
Finally, Reclamation is threatening to use our senior
Federal water rights without our permission to accommodate
municipalities and non-Indian farmers who don't want to share
their junior water rights with the minnow.
All of this must stop. The Federal Government must provide
the Pueblos with funding necessary to fully settle and
permanently protect our water rights, and take all actions in
accordance with the Federal trust responsibilities owed to the
our tribe, Pueblo.
We understand that many families and communities need water
also. We are here to work cooperatively to find solutions that
will be good for everyone. In order to do this our senior
rights must be considered and the Pueblos must have the place
at the table with this Honorable Congressional Delegates.
We have other concerns of water. There's lot of ways that
we do survive from the water. It has been passed on to us in
generations from our ancestors and our elders. There's lot of
ways that we use water that we benefit from, because that is
what we were taught from our elders and our ancestors.
It cleanses our body when we are weak, when we are ill. It
is how we cleanse our body in order to get the strength, in
order to continue on with our lives. It is not only irrigation
that is involved, there are a lot of aspects to water. We, as
Pueblo people up and down the Rio Grande, we have a unique way
of using the waters. We don't waste waters. Once we open the
gates to irrigate we have a way of talking to the water in
order to get the crops that we are looking for toward, to
survive our families.
So I would wish and hope that we are considered to come to
the table, to come with a solution to take care of the matter
here. So with that, I hope, and I pray for you, and that our
spiritual guidance will be with you to make a sound decision,
to come with a solution to take care of everybody's needs here.
Thank you very much.
The Chairman. Thank you.
[The prepared statement of Mr. Ortiz follows:]
Statement of The Honorable Anthony Ortiz, Tribal Governor, and Susan M.
Williams, Pueblo Legal Counsel, Pueblo of San Felipe, New Mexico
1. The silvery minnow water needs and related Federal actions
threaten the survival of traditional Pueblo life.
For the first time in history, the silvery minnow water crisis and
the current drought will require the Federal and state governments to
enforce senior water rights in accordance with the prior appropriation
system. Because the United States has seriously over-engineered the Rio
Grande with many dams and reservoirs, the natural ecosystem is in
crisis and the silvery minnow is on the brink of extinction. At the
same time, Federal mismanagement of the river and water delivery
systems has made it very difficult for the Middle Rio Grande Pueblos to
continue our ancient customs and traditions that depend upon our
precious water.
The current actions and inactions of the United States with regard
to the silvery minnow are causing tremendous negative impacts to the
cultural, religious and social structure of the Pueblo of San Felipe.
The United States is refusing to act in accordance with well-
established principles of Federal reserved water rights law and the
Federal trust responsibility owed to Indian tribes and pueblos, as
explained below. Simply put, the United States is trying to solve the
silvery minnow water crisis without regard for the senior Federal
reserved water rights of the Middle Rio Grande Pueblos.
When you visit our Pueblo, you will not see any golf courses,
public parks, or residential grass lawns. Rather, the Pueblo highly
values water and thus uses this precious resource only for consumption,
cooking, growing food, and bathing. The Pueblo does not waste water.
Despite the Pueblos' senior water rights entitlements, many
traditional Pueblo farming families are not able to use their lands for
subsistence farming because of a lack of available water. This lack of
available water is caused by the actions and inactions of the United
States. Because the Pueblo economy and social structure has survived
for centuries on the strong foundation of traditional farming and
related ceremonies, the United States' actions and inactions aimed at
dismantling this foundation threaten the very existence of traditional
Pueblo life.
In our traditional ways, the fields, the crops, and the water
provide answers and solutions to challenges we must face as a
community, including family stability, community violence, education,
youth development, and elderly issues. When the crops and the water are
not available on our lands, our traditional community becomes
fractured, and additional social problems emerge.
We want the future generations to work our lands and learn our
traditions from our elders. We want Pueblo life to stay strong and
healthy. Without our water, none of this is possible. Without our
water, our traditional roots will dry up and our Pueblo community will
wither away.
2. The Bureau of Reclamation must use water, otherwise contracted
to municipalities and non-Indian farmers, to ensure survival of the
silvery minnow.
The 10th Circuit Court of Appeals recently held that the delivery
of water pursuant to Federal contracts to municipalities and non-Indian
farmers must be curtailed in order to ensure the survival of the
silvery minnow, in accordance with the Endangered Species Act. This
means that municipalities and non-Indian farmers have less water
available from Federal reclamation projects than they would like to
have.
Because a water shortage was anticipated when the current water
delivery contracts and construction funding contracts were drafted,
these contracts include drought and shortage clauses which limit the
amount of water to be delivered to non-Federal contracting parties in a
time of shortage. These contract provisions are well summarized in the
10th Circuit opinion. See Rio Grande Silvery Minnow v. Keys, 333 F. 3d
1109; 2003 U.S. App. LEXIS 11672 (10th Cir. 2003).
Despite these clear contract limitations and conditions, the
municipalities and non-Indian farmers continue to maintain that water
is being denied to them illegally in violation of their Federal
contracts. As the 10th Circuit clearly explained, that claim is simply
not true. The municipalities and the non-Indian farmers do not have a
right to receive contract water when that water is not available. Under
the current conditions, the water desired by the municipalities and the
non-Indian farmers is not available due to the drought and Federal
needs related to the flow requirements for silvery minnow survival
pursuant to the Endangered Species Act.
Currently pending are proposed Federal appropriation riders that
are intended to prevent the Bureau of Reclamation from expending funds
in any manner that deprives municipalities and non-Indian farmers of
contract rights to receive water without a voluntary sale or lease.
However, as the 10th Circuit Court of Appeals plainly explained, these
users do not have any rights to receive contract water in times of
shortage, and are not somehow entitled to sell or lease water to the
Federal government in times of shortage. Rather, the relevant contracts
expressly condition all delivery on the availability of water (which is
not currently available). Moreover, as the Court explained, the
contracts contemplate the application of subsequent Federal laws,
including the Endangered Species Act and its water flow limitations.
For these reasons, there is no contract right for municipalities or
non-Indian farmers to receive contract water when it is needed for
Federal purposes such as the minnow, or when it is unavailable due to
drought. Thus, the proposed riders requiring ``willing sellers'' are
not in accordance with either Federal water law or the express language
of the contracts signed by the municipalities.
This is a concern for the Pueblo of San Felipe because Reclamation
has repeatedly informed the Pueblos that Pueblo water will be used for
minnow purposes if Reclamation is unable to find enough junior users
who may ``agree'' to become ``willing sellers'' of their contract water
delivery rights. In accordance with Federal law, the United States must
exhaust all efforts to obtain minnow water from junior water users, and
must not deprive the Pueblo of its senior water rights in that process.
The ``willing sellers'' requirement creates an additional serious
threat to the availability of water for Pueblo use because Reclamation
will use Pueblo water if the junior users refuse to become ``willing
sellers.''
Simply put, the junior water users with water delivery contracts
have no vested water rights to sell to the Federal government. The
United States' desire to ``buy'' such non-existent water rights must
not come before its respect for the senior Federal reserved water
rights held by the Middle Rio Grande Pueblos.
3. Permanent solutions will require significant Federal funding and
resources to allow a settlement of Pueblo water rights.
In order to create permanent solutions to water shortage and
allocation issues in the Middle Rio Grande basin, it will be necessary
to agree upon the amount of senior Federal reserved water rights held
by the Pueblos. This settlement can be accomplished best through the
Federal government's formal Indian water rights settlement process.
To move this process forward, the Federal government must fund the
technical engineering and legal work necessary to determine the amount
of water to which each Pueblo is entitled. If the Pueblos receive the
full Federal funding necessary for meaningful participation in this
Federal process, a comprehensive settlement of Pueblo water rights
could move forward quickly. Until such settlement of senior Pueblo
water rights is accomplished, there will be no certainty regarding the
availability of water for junior water users such as the City of
Albuquerque and non-Indian farmers. Thus, it is in the best interests
of all concerned for the Federal government to provide adequate and
immediate funding for the settlement process.
The total amount of Pueblo water rights best can be determined only
through this type comprehensive settlement process. The only other
alternative for resolving the Pueblo water rights is years of
contentious and expensive litigation.
Federal law requires a measurement of Pueblo water rights that will
provide enough water for the present and future homeland needs of the
Pueblo. The United States Supreme Court has long held that Federal
Indian reservations were set aside as permanent homelands for Indian
people to live upon in a self-sustaining fashion into the indefinite
future, with enough water reserved for Pueblo use now and for all the
future generations.
In the landmark case of Winters v. United States, 207 U.S. 564
(1908), the United States Supreme Court held that Congress, by creating
the Indian reservation, impliedly reserved ``all of the waters of the
river--necessary for--the purposes for which the reservation was
created.'' Winters, 207 U.S. at 576. The Court further declared that
this reservation of water was not only for the present needs of the
tribe, but ``for a use which would be necessarily continued through
years.'' Winters, 207 U.S. at 577.
This principle outlined in Winters is now well-established in
Federal water rights jurisprudence: the United States, in establishing
Indian or other Federal reservations, impliedly reserves enough water
to fulfill the purpose of each Federal reservation, including the
residential, economic development, and governmental needs of Indian
tribes. See Arizona v. California, 373 U.S. 546, 599-601 (1963);
Cappaert v. United States, 426 U.S. 128, 138 (1976); United States v.
New Mexico, 438 U.S. 696, 700 (1978); In Re The General Adjudication of
All Rights To Use Water In The Gila River System and Source, 35 P.3d 68
(2001). Importantly, this type of Federal reserved water right ``is
superior to the rights of future appropriators.'' Cappaert, 426 U.S. at
138.
For these reasons, the settlement of Pueblo water rights will
include the amount of water necessary for the present and future
homeland needs of each particular Pueblo. There will not be certainty
for the junior water users, or a permanent solution for minnow water,
until after the Pueblos' senior Federal reserved water rights are
settled in this manner.
4. The current El Vado Reservoir storage and release policies and
procedures are an important part of the problem.
In 1928, Congress authorized and funded construction of a water
delivery system to benefit Pueblo lands and non-Indian lands in the Rio
Grande basin. This water delivery system was to be administered by the
Middle Rio Grande Conservancy District (MRGCD). See 70 P.L. 169, 70
Cong. Ch 219, 45 Stat 312 (1928).
As part of the construction authorization, Congress directed MRGCD
to deliver part of the Pueblos' water entitlement through the MRGCD
water delivery system, and agreed to pay for the operation and
maintenance costs associated with that part of MRGCD's delivery system.
In 1981, the United States and the Pueblos agreed to store in El Vado
Reservoir sufficient water to sustain this part of the Pueblos' water
entitlement to be released for delivery through the MRGCD system.
The Pueblo of San Felipe, however, is not receiving its full
allocation of water that is required to be delivered to the Pueblo
through the MRGCD water delivery system pursuant to the 1928 Act and
the 1981 Storage and Release Agreement. The Bureau of Reclamation
routinely violates the 1981 Storage and Release Agreement by making
unauthorized releases of Pueblo water resulting in the use of Pueblo
water by junior, non-Indian downstream users. Reclamation also is
failing to store sufficient water under the 1981 Storage and Release
Agreement.
Further, the Pueblo is not presently using its full share of the
native flow of the Rio Grande (and related groundwater) that the Pueblo
is entitled to use for residential, commercial and governmental
purposes. The Pueblo is not able to use its full allocation in large
part because the water delivery system is in serious need of
substantial improvements and repairs to allow adequate water delivery.
Despite the illegal reduction in the amount of Pueblo water stored
and released from El Vado Reservoir, and despite the Pueblo not using
its full entitlement to native flow directly from the Rio Grande, the
Department of Interior is now threatening to deprive the Pueblo of its
senior Federal reserved water rights so that the junior municipal and
non-Indian water users are spared from feeling the full impact of the
current drought and silvery minnow water demands.
The current water crisis must not be resolved at the expense of the
Pueblos, in violation of Federal law. It is not fair or lawful for the
United States to impose the burden of this drought and the silvery
minnow water needs on the most senior water rights holders on the
river. In accordance with well-established Federal law, delivery of
native flow and stored water to the Pueblo must receive priority over
the junior non-Indian native flow and storage delivery before
Endangered Species Act limitations could or should be applied to the
Pueblo's senior Federal reserved water rights. This is consistent with
the conclusions of the Department of Interior Working Group on the
Endangered Species Act and Indian Water Rights that was formed to
evaluate these issues in 1997.
5. Federal law imposes trust duties of the highest standard on the
United States that require the Department of Interior to take all
actions necessary to protect and maintain Pueblo water rights.
The United States Supreme Court has long held that, as the Pueblos'
trustee, the United States must act to ``preserve and maintain trust
assets,'' using ``reasonable care and skill to preserve trust
property.'' United States v. White Mountain Apache Tribe, 123 S.Ct
1126, 1133-34 (2003). See also United States v. Mitchell, 463 U.S. 206
(1983). These trust duties require protection in circumstances such as
ours where ``water rights constitute the trust property'' which the
Federal government, as trustee, has the duty to preserve by performing
``all acts necessary.'' Fort Mojave Indian Tribe v. United States, 23
Cl. Ct. 417, 426(1991). Failure to comply with these Federal trust
duties will result in a monetary award against the United States for
breach of trust.
As the Supreme Court recently explained, the United States' Federal
trust duties are substantial when the United States exercises direct
control over tribal trust assets on a daily basis. In such
circumstances, ``a fiduciary actually administering trust property may
not allow it to fall into ruin on his watch.'' White Mountain Apache,
123 S.Ct. 1126, 1133.
Because the Bureau of Reclamation exercises daily control over
Pueblo water storage and release, Reclamation has a heightened trust
duty to protect Pueblo water from waste and unauthorized use by junior
users, including municipalities and non-Indian farmers. Additionally,
the Department of Interior has the trust obligation to take the
affirmative steps necessary to settle and permanently protect Pueblo
water rights in a comprehensive manner. This will require substantial
Federal funding, which must be provided to the Pueblos for this
purpose.
To date, the United States has entirely failed to provide the
Pueblos with the funds necessary for the technical engineering work and
legal services that will be necessary to settle Pueblo water rights in
the Rio Grande basin. Significant and immediate funding will be
necessary to move this process forward in a comprehensive manner aimed
at finding permanent solutions to the Rio Grande water crisis.
Additionally, the United States, acting through the Bureau of
Reclamation, is breaching its Federal trust responsibility by failing
to store sufficient Pueblo water in accordance with the 1928 Act and
the 1981 Storage Agreement. Reclamation is also violating the 1981
Storage and Release Agreement by making unauthorized releases of Pueblo
water resulting in the use of Pueblo water by junior, non-Indian users.
Further, Reclamation is threatening to commit an even greater breach of
its trust responsibility through its intention to use Pueblo water for
minnow purposes if the junior users refuse to become ``willing
sellers.''
Under well-established principles of Federal water law, Indian
tribes and Pueblos in New Mexico hold senior, Federal reserved water
rights that must be fulfilled before water is allocated to junior users
such as municipalities and non-Indian farmers. Thus, even if the
municipalities and non-Indian farmers had a contract right to receive
Federal water in times of shortage (which they do not), that right
would be junior to the right of the Pueblo to receive its Federally
reserved senior water rights. In other words, Pueblo water rights must
be fulfilled before the municipalities and non-Indian farmers are
entitled to receive any contract water, or the native flow of the Rio
Grande (including related groundwater), regardless of whether such
junior users ``agree'' to become ``willing sellers.''
6. Our water and our entire way of life are bound together through
our traditional farming practices.
The Pueblo of San Felipe has a cherished name of Katishthya. This
is the original name for the city. We call ourselves Katishthyame. Our
homeland in its current location dates back to the 1400's. Before that,
we can name our ancestors as the people of Chaco, Mesa Verde,
Bandelier. We are the first city builders in America.
We were also the first in this land to develop our ancient water
delivery systems, our traditional farming-based economy and closely
related social structure. Our art and culture reflect our deep
connection to our water, crops and lands. Our sophisticated system of
traditional self-governance is necessary to administer and conserve the
precious resources that the Creator has given us. It is this
civilization--our civilization--that the anthropologists are constantly
studying. We are repeatedly examined at the Smithsonian Institute.
Universities and tourists from around the world come to study our
homeland and our traditional way of life.
All this examination and study leaves us to wonder when we will
truly be understood or acknowledged as humans who have human needs. Our
families need to eat. We need to teach our youth the ways of our
people. Our community needs to celebrate and honor our land and our
crops. None of this is possible if the Federal government continues to
deny us our basic rights to water.
One source of inspiration for our lives comes from the challenges
of food production in the arid environment in which we live. It is a
spiritual concept, this idea of being able to survive and using simple
tools to work the land. It seems like only yesterday when the tribes
lived without the impact of Europeans. This memory--which is so close
and still clear--makes us very unique in our concept of survival. The
spiritual power of gratefulness has created beauty on our lands and a
guarded presence each Katishthyame possesses, as if our breath may be
taken away at any moment. We place water on that same spiritual level.
For a human to exist, that human needs water, food and, perhaps,
shelter. But water is the number one need. For these many centuries we
have survived. We have been prudent in our use of water, and we are
grateful for the water provided to us by the Creator. But we are
concerned about the survival of our crops and the future water needs of
our children. We are farmers. Throughout history, our people have
expressed the importance of our water and our crops in our traditions
which can be seen by outsiders as designs in drawings, paintings,
weavings, songs, dances, poetry and theatre, and basically in every
aspect of our cultural heritage.
These traditions are our cultural legacy. We share this immense
cultural contribution with the United States, the State of New Mexico,
the universities that study us, the institutes that examine us, and all
of the tourists who experience the artistic and psychological impact of
our traditional Pueblo way of life when they visit New Mexico.
There is no corporate foundation or concept in our traditional
farming. It is simply our way of life. Our farmers take great pride in
providing well for their families, extended families, and the entire
Pueblo community with our crops. Beyond food to eat, our Pueblo farmers
often earn the basic necessities of life by selling produce to
neighboring Pueblos or farmers markets, or through barter with other
Pueblo families who will, in turn, share their goods as needed. This is
how we often provide school clothes for our children, supplies for our
artists, and non-food items essential to any household.
Children work with their parents to assist with our traditional
farming. The elders pass down stories and lessons related to our
farming traditions and thus teach our youth how to grow and accept the
responsibilities adulthood will bring. As with our crops, this circle
of life feeds our traditions, and provides the foundation for our
entire way of life.
If our water is not protected, there will be no survival of these
traditional practices. Children will not learn what they need to know
from the elders. There will be no fresh produce for healthful eating.
The farmers will have nothing to sell or trade for the non-food items
that they need. Without water, a welfare state will be imposed on our
traditional communities, and a rich culture dating back thousands of
years will finally be extinguished.
We will not stand by and watch this destruction occur. As our
trustee, the United States must not continue to cause our water to be
taken by others, and our water delivery systems to fall into ruin. The
silvery minnow water crisis is just one part of a very complicated
water shortage in the Middle Rio Grande.
In order to avoid contentious and expensive litigation, the United
States must diligently exercise its trust responsibility to protect and
preserve our water rights. As discussed above, this will require
significant and immediate Federal funding to the Pueblos for the
permanent settlement and protection of our water rights. Additionally,
the Department of Interior must stop the unauthorized releases of
Pueblo water from El Vado Reservoir, and must store sufficient Pueblo
water in accordance with the 1928 Act and the 1981 Storage and Release
Agreement.
There will not be certainty for the junior water users in the
Middle Rio Grande--or a permanent solution for the silvery minnow water
crisis--until after the Pueblos' senior Federal reserved water rights
are fully settled and permanently protected. Until that time, the
United States must not create temporary band-aids that illegally
deprive the Pueblos of water that is critical to sustain Pueblo
homelands and the traditional Pueblo way of life.
______
The Chairman. I would like to now recognize Mr. John
D'Antonio.
STATEMENT OF JOHN D'ANTONIO,
NEW MEXICO STATE ENGINEER
Mr. D'Antonio. Thank you, Mr. Chairman. Honorable Members
of Congress, and water rights holders of New Mexico, and
honored guests.
Based on the request contained in your letter of August the
27th to Governor Bill Richardson, I offer the following remarks
for presentation at the Committee's oversight field hearing
here in Belen, New Mexico. You specifically requested that the
state present its views on the Tenth Circuit Court of Appeals
ruling on Rio Grande Silvery Minnow versus Keys, et al., the
impacts of the recovery process, how the ruling has affected
New Mexico citizens, and the state's historic role in funding
and implementing silvery minnow recovery efforts.
The ruling itself. From the legal analysis I've seen, I
think it's clear that this ruling goes far beyond previous
cases because it allows the U.S. to seize water promised to
others under perpetual contracts, contracts executed decades
ago, which have been consistently honored to up to now, and
upon which the users are critically dependent. Even the Ninth
Circuit (which the Tenth Circuit said it was agreeing with)
says that the U.S. can't simply invalidate contracts unless the
U.S. retained some discretion to act, such as renegotiation of
the terms of a renewal contract. No such discretionary action
occurred here--the court simply said that ESA needs prevail
over the contract terms, and that's wrong.
Also, the idea that imported water, water that has caused
no harm to the species, should be used first to potentially aid
in its recovery seems absurd to us. And, if upheld, the ruling
would have significant impacts in other river basins in the
west where cities have grown dependent for their existing water
needs on transbasin diversions.
I'm also concerned that the Tenth Circuit reached a
conclusion regarding the legislative authorization for the San
Juan-Chama project which is contrary to a previous case result,
which was the Jicarilla versus the U.S., which has been heavily
relied upon by New Mexico and others, without arguing or
overruling that case. That is an inadequate foundation for such
a revolutionary and disruptive conclusion.
Finally, I was dismayed that the court also justified its
results on the basis of a questionable doctrine never raised or
argued by any of the parties. To me, that's fundamentally
unfair.
Most importantly, though, the court made its greatest error
in finding that the Reclamation has discretion to seize water
from its contractors. One thing that the ESA cases say almost
uniformly is that the ESA did not add to the authorities
already possessed by the Federal Government-- it merely
required that those existing authorities be used in a way that
would not jeopardize listed species.
And I believe that we're far beyond that here. Does anyone
really believe that the, prior to the ESA the, Bureau of
Reclamation had the right to seize water promised to others
under perpetual contracts, even though it possessed no
beneficial use water rights itself? That all its reservoir
system supply contracts which municipalities, farmers and
Indians relied upon were illusory?
No, that's not credible. And the Tenth Circuit ruling which
says Reclamation did have the discretion is therefore not
credible to me. New Mexico agrees strongly with the need and
policy of protecting endangered species, but the heavy-handed
approach of the Tenth Circuit will, I fear, will result in a
backlash which will set the program back, not advance it. The
way forward is by collaborative efforts, and I ask your support
for a funding to continue those critical efforts.
The impacts on the recovery process. The impacts have been
profound and also confounding. Prior to the ruling, there was a
sense among the affected parties of a real need to collaborate
and reach a viable long-term solution that balanced the needs
of water users and the minnow. With the ruling, my impression
is that there is a sense of frustration and hopelessness-- an
attitude of ``what's the point--the U.S. will take the water as
needed, when needed, anyway.'' That's an extremely unfortunate
result of the ruling, in my opinion.
Technically, the Rio Grande Silvery Minnow Recovery Team
has been reconstituted at the direction of Dale Hall, the
regional director of the Fish and Wildlife Service. While we
are happy to be members of that team, we're concerned with the
lack of progress and, in particular, believe it is critical
that the revised Recovery Plan include realistic and measurable
downlisting and delisting criteria for the fish... the lack of
which, in our mind, is a significant shortcoming in the
existing plan.
As far as the effects on New Mexico citizens, the primary
effects are those resulting from the uncertainty and risk
produced by the ruling--neither farmers, nor municipalities,
nor individuals, have any assurance of how much water they may
get, or when. In water, uncertainty of the legal right to use
is fatal to efficient markets, to mitigation of shortages, to
the ability of farmers and other users to plan for the upcoming
year, and to the preservation of its value.
New Mexico's historic role in the minnow recovery efforts,
I'm pleased to report that New Mexico, acting through the
Interstate Stream Commission and the Office of the State
Engineer, has been a leader in finding innovative ways to
provide upstream Rio Grande conservation pool storage and
releases to preserve the silvery minnow.
In 2001 the ISC obtained the first-ever State Engineer
permit for maintenance of the silvery minnow's habitat, based
on an innovative method to use the state's compact delivery
flows. This action provided over 70,000 acre feet for the
minnow. In 2003, the ISC arranged a compact credit
relinquishment agreement with Texas which provides another
70,000 acre feet for the next 3 years for the minnow.
With regard to river operations, we are heavily involved in
day-to-day water management activities including aiding Fish
and Wildlife Service in rescuing the minnow during the managed
ramp downs of the river flows. I, with the ISC, have also
warned that because of the longer-term reality of the hydrology
of the Rio Grande is one of scarcity punctuated by floods and
the 20 years prior to 1999 were quite wet in comparison to the
preceding 30 years, we are in need of river management options
that take account of our continuing drought situation. New
Mexico is conducting field characterization studies to better
understand the interaction between surface water and
groundwater in critical areas of the river so we can better
manage the river.
ISC has also been a leader in promotion cooperative and
technical programs which will facilitate the long-term recovery
of the minnow, not merely its preservation. Even before the
silvery minnow lawsuit was filed, ISC convened and supported
(with both staff and funding) the ESA Collaborative Program, a
long-term funding and recovery program vehicle. ISC also
conceived, implemented, and paid for the highly successful
Silvery Minnow Natural Refugium.
Moving forward, we believe significant and long-term
funding of the Middle Rio Grande ESA Collaborative Program will
be needed to implement the research, habitat restoration, and
efficiency/forbearance projects that are needed. We have been
surprised at how little is actually known about the needs of
the fish and how we can implement projects that will help it
recover.
Research to address the needs of the fish has begun using
workgroup funding and we eagerly await the results. In this
regard, the non-Federal participants of the Program, at the
request of Senator Domenici and Senator Bingaman, have
developed Draft Authorizing Legislation for the Program and
expect to submit the language to Senator Domenici in the near
future.
In sum, New Mexico has been at the forefront of all aspects
of efforts to preserve and recover the silvery minnow, both in
the refugia and in the wild. It began these efforts before the
litigation even arose, and it has continued even during the
difficult litigation.
Finally, these results have been accomplished within the
Law of the River while insuring that all water obtained has
been provided from willing sellers.
Thank you for this opportunity for providing testimony.
The Chairman. Thank you.
[The prepared statement of Mr. D'Antonio follows:]
Statement of John R. D'Antonio, Jr., P.E., New Mexico State Engineer,
Secretary, New Mexico Interstate Stream Commission
Pursuant to the request contained in your letter of August 27, 2003
to Governor Bill Richardson, I offer the following remarks for
presentation at the Committee's oversight field hearing in Belen, New
Mexico. You specifically requested that the state present its views on
the 10th Circuit Court of Appeals ruling in Rio Grande Silvery Minnow
v. Keys, et al., the impacts on the recovery process, how the ruling
has affected New Mexico citizens, and the state's historic role in
funding and implementing silvery minnow recovery efforts.
A. The Ruling itself.
From the legal analyses I've seen, I think it is clear that this
ruling goes far beyond previous cases because it allows the U.S. to
seize water promised to others under perpetual contracts, contracts
executed decades ago, which have been consistently honored to up to
now, and upon which the users are critically dependent. Even the 9th
Circuit (which the 10th Circuit said it was agreeing with) says the
U.S. can't simply invalidate contracts unless the U.S. retained some
discretion to act, such as renegotiation of the terms of a renewal
contract. No such discretionary action occurred here--the court simply
said that ESA needs prevail over the contract terms, and that's wrong.
Also, the idea that imported water, water that has caused no harm to
the species, should be used first to potentially aid in its recovery
seems absurd to us. And, if upheld, the ruling could have significant
impact in other river basins in the west where cities have grown
dependent for their existing water needs on transbasin diversions.
I am also concerned that the 10th Circuit reached a conclusion
regarding the legislative authorization for the SJCP which is contrary
to a previous case result, Jicarilla v. U.S., which has been heavily
relied upon by New Mexico and others, without arguing or overruling
that case. That is an inadequate foundation for such a revolutionary
and disruptive conclusion.
Finally, I was dismayed that the court also justified its result on
the basis of a questionable doctrine never raised or argued by any of
the parties. To me, that's fundamentally unfair.
Most importantly, though, the court made its greatest error in
finding that Reclamation has discretion to seize water from its
contractors. One thing the ESA cases say almost uniformly is that the
ESA did not add to the authorities already possessed by the federal
government--it merely required that those existing authorities be used
in a way that would not jeopardize listed species. And I believe we're
far beyond that here. Does anyone really believe that, prior to the
ESA, the Bureau of Reclamation had the right to seize water promised to
others under perpetual contracts, even though it possessed no
beneficial use water rights itself? That all its reservoir system
supply contracts, which municipalities, farmers and Indians relied
upon, were illusory? No, that's not credible. And the Tenth Circuit
ruling which says Reclamation did have that discretion is therefore not
credible to me. New Mexico agrees strongly with the need and policy of
protecting endangered species, but the heavy-handed approach of the
Tenth Circuit will, I fear, result in a backlash which will set that
program back, not advance it. The way forward is by collaborative
efforts, and I ask your support for funding to continue those critical
efforts.
B. Impacts on the recovery process.
The impacts on the recovery process have been profound and
confounding. Prior to the ruling, there was a sense among the affected
parties of a real need to collaborate and reach a viable long-term
solution that balanced the needs of water users and the minnow. With
the ruling, my impression is that there a sense of frustration and
hopelessness--an attitude of ``what's the point--the U.S. will take the
water as needed, when needed, anyway.'' That is an extremely
unfortunate result of the ruling, in my opinion. Technically, the RGSM
Recovery Team has been reconstituted at the direction of Dale Hall, the
regional director of the FWS. While we are happy to be members of that
team, we are concerned with its lack of progress and, in particular,
believe it is critical that the revised Recovery Plan include realistic
and measurable downlisting and delisting criteria for the fish...the
lack of which, in our mind, is a significant shortcoming in the
existing plan.
C. Effects on New Mexico citizens.
The primary effects are those resulting from the uncertainty and
risk produced by the ruling--neither farmers, nor municipalities, nor
individuals, have any assurance of how much water they may get, or
when. In water, uncertainty of the legal right to use is fatal to
efficient markets, to mitigation of shortages, to the ability of
farmers and other users to plan for the upcoming year, and to
preservation of value.
D. New Mexico's historic role in minnow recovery efforts.
I am pleased to be able to report to you that New Mexico, acting
through the Interstate Stream Commission and the Office of the State
Engineer, has been a leader in finding innovative ways to provide
upstream Rio Grande conservation pool storage and releases to preserve
the silvery minnow. In 2001, ISC obtained the first-ever State Engineer
permit for maintenance of the silvery minnow's habitat, based upon an
innovative method of use of the State's compact delivery flows. This
action provided over 70,000 AF for the minnow. In 2003, the ISC
arranged a compact credit relinquishment agreement with Texas which
provides another 70,000 AF over three years for the minnow.
With regard to river operations, we are heavily involved in day-to-
day water management activities including aiding the Fish and Wildlife
Service in rescuing RGSM during the managed ramp downs of river flows.
I, with the ISC, have also warned that because the longer-term reality
of the hydrology of the RG is one of scarcity punctuated by floods and
that the 20 years prior to 1999 were quite wet in comparison to the
preceding 30 years, we are in need of river management options that
take account of our continuing drought situation. New Mexico is
conducting field characterization studies to better understand the
interaction between surface water and groundwater in critical areas of
the river so that we can better manage the river
ISC has also been a leader in promoting cooperative and technical
programs which will facilitate the long-term recovery of the minnow,
not merely its preservation. Even before the silvery minnow lawsuit was
filed, ISC convened and supported (with both staff and funding) the ESA
Collaborative Program, a long-term funding and recovery program
vehicle. ISC also conceived, implemented, and paid for the highly-
successful Silvery Minnow Natural Refugium.
Moving forward, we believe significant and long-term funding of the
MRG ESA Collaborative Program will be needed to implement the research,
habitat restoration, and efficiency/forbearance projects that are
needed. We have been surprised at how little is actually known about
the needs of this fish and how we can implement projects that will help
it recover. Research to address the needs of the fish has begun using
workgroup funding and we eagerly await the results. In this regard, the
non-federal participants of the Program, at the request of Senator
Domenici and Senator Bingaman, have developed Draft Authorizing
Legislation for the Program and expect to submit the language to
Senator Domenici in the near future.
In sum, New Mexico has been at the forefront of all aspects of
efforts to preserve and recover the silvery minnow, both in refugia and
in the wild, it began these efforts before the litigation even arose,
and it has continued them even during that difficult litigation.
Finally, these results have been accomplished within the Law of the
River and while ensuring that all water obtained has been provided from
willing sellers.
Thank you for the opportunity to provide these remarks. I hope they
are helpful and I will be glad to respond to any questions you may
have.
______
The Chairman. Ms. Alletta Belin.
STATEMENT OF ALLETTA BELIN, NEW MEXICO COUNSEL, WESTERN
RESOURCE ADVOCATES
Ms. Belin. Mr. Chairman, and members of the Committee,
thank you for the invitation to participate in today's hearing.
My name is Alletta Belin and I represent the plaintiffs in the
Rio Grande Silvery Minnow versus Keys litigation we've been
talking about, and I'm going to address that lawsuit and its
impacts on New Mexico.
The silvery minnow was once one of the most abundant and
widespread fishes in the Middle Rio Grande, originally
inhabiting the Rio Grande all the way from Espanola down to the
Gulf of Mexico and the Pecos River--about 3,000 miles of river.
At times it was so abundant that the river literally turned
silver with minnows. It is now the only one left of a family of
four similar fish that once inhabited the Middle Rio Grande. In
all, nearly one-half of the native fish in the Middle Rio
Grande area have either been extirpated from the Middle Rio
Grande or gone extinct.
By the time silvery minnow was listed as endangered in
1994, it had been reduced to 5 percent of its original historic
range, and it remained only in the 160-mile stretch of river
between Cochiti Dam and Elephant Butte Reservoir.
The reasons cited by the U.S. Fish and Wildlife Service for
its listing as endangered include the loss and fragmentation of
aquatic habitat, the narrowing of the species' range, and the
impacts of irrigation withdrawals and the dewatering of the
habitat.
Since its 1994 listing, the silvery minnow population has
continued to plummet. And I would refer you to the first two
exhibits, I have in the graph in those exhibits, which depicts
the further deterioration of the status of the minnow since
1994.
To talk about the Tenth Circuit silvery minnow decision I
must first mention the two Federal water projects that affect
the flows in the Middle Rio Grande, and those are the Middle
Rio Grande Project and the San Juan-Chama Project.
The Middle Rio Grande Project, which was approved by
Congress in 1948 and 1950, included a vast Federal overhaul and
expansion of the dams and irrigation works of the then-bankrupt
Middle Rio Grande Conservancy District, and authorized
construction of major flood control and levy facilities in the
Middle Rio Grande, including the Abiquiu and Cochiti
Reservoirs.
The San Juan-Chama Project, which was authorized by
Congress in 1962, called for the construction of tunnels to
transport water from the Colorado River Basin across the
Continental Divide into the Rio Grande watershed, as well as
construction of Heron Reservoir to hold the project water. The
central idea behind this project was to offset past and future
anticipated stream flow depletions in the Middle Rio Grande and
to provide water for the future growth in the area.
According to its own records, MRGCD serves about 170 full-
time farms and 2000 part-time farms. About over 95 percent of
the irrigation water is used for alfalfa and other forage.
During the late 1980's and the 1990's, MRGCD diverted, on
average, over 11 acre feet of water per acre per year which,
according to the State Engineer, is about two or more times
more water than it is diverted by other irrigation districts in
the state.
The silvery minnow litigation arose after about 3 years of
dialog among various stakeholders. That dialog began in 1996
after MRGCD water diversions had killed over half of the last
remaining silvery minnows. Many people worked very hard over
those 3 years to try to find collaborative solutions to the
problems and to avoid court litigation.
Unfortunately, the dialog didn't produce real changes and
the silvery minnow continued to decline. I believe that the
events of the last few years clearly demonstrate that had we
not filed the litigation, the silvery minnow would, for all
intents and purposes, be extinct by now.
Since the litigation was filed in late 1999, there have
been many positive actions taken by many agencies and water
users in the Middle Rio Grande. Some of these are reviewed in
my written testimony, and I think that many of those actions,
not all of them, but a lot of them came about because of the
focus and incentives created by the litigation.
As for the Tenth Circuit decision, some people have claimed
that that decision is a Federal grab of individuals' water
rights. That's not true. The Federal Government is involved in
the Middle Rio Grande because it has funded and built dams,
reservoirs, irrigation ditches, and levees throughout the Rio
Grande, to the tune of hundreds of millions of dollars.
All the water users in the Middle Rio Grande have benefited
because of these massive Federal investments. MRGCD, for
example, paid back (over 50 years, interest free) only a
fraction of the money that the Federal Government invested in
its irrigation and levee system through the Middle Rio Grande
Project. Farmers got an excellent bargain from the Federal
Government: Massive Federal dollars in return for Federal
ownership and control over the irrigation system.
The Tenth Circuit was right to hold that Federal water
contracts must be interpreted in a manner consistent with the
Endangered Species Act. A contrary interpretation would be a
death warrant to most of the rivers in the western United
States, including the Rio Grande.
And I just, in response to some of the things that were
said earlier today, I just wanted to point out that with the
various court orders that have been issued in this case, no
water has been taken by the Federal Government from anyone. All
the water that's been used for the silvery minnow has been sold
or lent, and people selling that water have been paid for it.
And the water shortages this summer that farmers are
experiencing are a result of the drought, they are not the
result of the silvery minnow. None of MRGCD's water is being
used or taken for the silvery minnow this summer.
Albuquerque and other cities contracting for San Juan Chama
water have plenty of options after the Tenth Circuit's
decision. If they believe that municipal water contracts should
be given a different treatment under the Endangered Species Act
and irrigators' contracts, then the contracts should be revised
and other measures should be adopted to protect endangered
species from the effects of the water deliveries.
And remember that less than 1 percent of Albuquerque's
water is used for drinking. Most of it is used for golf courses
and landscaping. Cities can always choose to cut back on their
water-guzzling amenities in order to leave some water for the
river and the bosquet.
I think there have been a lot of positive effects from the
court decisions in this case. We have heard some of them this
morning. I think one of the most positive effects of the Tenth
Circuit opinion is that it has spurred intensive efforts to
negotiate a collaborative solution to the problems on the
Middle Rio Grande. The specifics of those negotiations, led by
Governor Richardson, are confidential and I can't talk about
them, but I can say that I believe that no such negotiations
would be taking place in the absence of the court's opinion,
and I certainly hope that they are successful.
There have also been some substantial positive economic
impacts on the Upper Rio Grande Basin and the Middle Rio Grande
as a result of the efforts to protect the silvery minnow. I
review those in my written testimony.
I would refer you just to a recent study by an agricultural
economist at NMSU, and another economist that found positive
economic effects of flow requirements for the silvery minnow.
And as Ms. Grevey Hillson mentioned earlier, the various
recovery efforts to the tune of tens of millions of dollars
have benefited not only the river and the minnow, but also our
economy.
Thank you very much again for the opportunity to speak.
The Chairman. Thank you.
[The prepared statement of Ms. Belin follows:]
Statement of Alletta Belin, New Mexico Counsel,
Western Resource Advocates
Mr. Chairman and Members of the Committee, I appreciate your
invitation to participate in today's field hearing concerning the Rio
Grande silvery minnow, the decision of the U.S. Court of Appeals for
the Tenth Circuit in Rio Grande Silvery Minnow v. Keys, and their
impacts on New Mexico.
My name is Alletta Belin, and I represent the plaintiffs in that
lawsuit. I will address the lawsuit and its impacts on our state. My
testimony addresses the following points:
The valuable but declining state of the Middle Rio Grande
ecosystem, and the perilous status of the Rio Grande silvery minnow,
which is on the brink of extinction;
The overall importance and vulnerability of river
ecosystems, including the many rivers in the western United States
affected by federal water projects;
The history and purposes of the two federal water
projects that operate in the Middle Rio Grande: the Middle Rio Grande
Project and the San Juan-Chama Project;
The failure of agencies and water users to address the
urgent problems in the Middle Rio Grande that led to a crisis and
ultimately to the filing of Rio Grande Silvery Minnow v. Keys;
Developments in the lawsuit that spurred many minnow and
river restoration efforts and led up to the Tenth Circuit opinion;
The meaning and implications of the Tenth Circuit
opinion, which is consistent with similar rulings from the Ninth
Circuit, and which creates incentives to solve the problems, while
still allowing flexibility in how they are solved;
The positive economic effects of actions to protect the
silvery minnow on the Middle Rio Grande and the rest of the Upper Rio
Grande Basin.
Background on the Middle Rio Grande and the Rio Grande Silvery Minnow
The Middle Rio Grande, home to the last remaining population of the
endangered Rio Grande silvery minnow, is a unique and critical stretch
of river. Prior to human influence, the Middle Rio Grande was a
perennially flowing river, with a braided channel that would migrate
back and forth across the floodplain. It supported a dense cottonwood
and willow forest, or ``bosque,'' which provided the habitat for a
wealth of native and migrating bird and wildlife species. Flow levels
in the river were seasonal, with greatest flows in the late spring
during peak runoff from snow melt, and in mid to late summer from rain
runoff. Reports from the first Spanish settlers of the sixteenth
century paint a magnificent picture of the river: ``[A] large and
mighty river'' that ``flows through a broad valley planted with fields
of maize and dotted with cottonwood groves'' (Alvarado, 1540). . .
``[A]long the river [near San Marcial] banks there were many cottonwood
groves and some patches of white poplars four leagues [about 20 miles]
wide'' (Espejo, 1583) . . . ``A deep river'' and ``the river with much
water'' (Castano de Sosa, 1590) . . . ``[S]wift and beautiful,
surrounded by numerous meadows and farms'' (Obregon, late 1500's).
Even now, the Middle Rio Grande boasts the biggest intact stretch
of native cottonwood-willow bosque left anywhere in the Southwest. But
that bosque is deteriorating as the cottonwoods seeded in the 1940's
die without being replaced and non-native species continue to invade.
The Middle Rio Grande is also home to about two-thirds of New Mexico's
six hundred wildlife species, but we are losing those species. Fourteen
animal species in the Middle Rio Grande are on the state list of
threatened and endangered species; two are on the federal list: the Rio
Grande silvery minnow and the Southwestern willow flycatcher. These
problems have been exacerbated by the current drought, and stand to get
worse as the valley's population increases and as Albuquerque commences
using water from the Rio Grande for its water supply.
The silvery minnow was once one of the most abundant and widespread
fishes in the Middle Rio Grande, occurring in the Rio Grande from
Espanola to the Gulf of Mexico and in the Pecos River. At times it was
so abundant the river would literally turn silver with minnows. The
silvery minnow is now the only remaining member of a suite of four
endemic Rio Grande mainstream cyprinids that once inhabited the Middle
Rio Grande. Of approximately seventeen fish species that were native to
the Middle Rio Grande, at least seven have been extirpated or have
become extinct (shovelnose sturgeon, American eel, speckled chub, Rio
Grande shiner, phantom shiner, Rio Grande bluntnose shiner, blue
catfish).
The silvery minnow's population has dropped precipitously in recent
years. By 1994, it was reduced to 5% of its historic range, and
remained only in the stretch of the Rio Grande between Cochiti Dam and
Elephant Butte Reservoir. In 1994, the U.S. Fish and Wildlife Service
listed the Rio Grande silvery minnow as an ``endangered'' species. In
determining to list the silvery minnow as endangered, the FWS cited the
loss and fragmentation of aquatic habitat, the narrowing the species'
range, the impacts of irrigation withdrawals and dewatering of its
habitat, and other factors.
Since its 1994 listing, the silvery minnow population has continued
to plummet. The most recent silvery minnow monitoring report prepared
for the federal government found that by late 2002, the number of
silvery minnows found in the river ``had declined to the lowest levels
ever recorded.'' (Dudley, Gottlieb & Platania, 2002 Population
Monitoring of Rio Grande Silvery Minnow, Hybognathus Amarus, Final
Report,'' (June 10, 2003), p.vi. (See Exhibit 1 attached hereto,
excerpts of that report; Exhibit 2, graph showing decline of silvery
minnow 1994-2002)). Like earlier monitoring studies, this report found
the highest densities of silvery minnow in the lowest stretch of the
Middle Rio Grande, between San Acacia Diversion Dam and Elephant Butte
Reservoir. The lowest densities of silvery minnow were found above
Isleta Dam, in the stretch of river that runs through Albuquerque. The
2002 Final Report concluded:
The cumulative effects of years of river drying, downstream
displacement, and habitat degradation continue to be manifested
by the decline of the Rio Grande silvery minnow. The marked and
alarming declines in abundance of Rio Grande silvery minnow
recorded in 2002 during this population monitoring study
provide the strongest evidence that the problems that led to
the precipitous decline of this species have not been remedied.
A renewed focus on issues that directly affect the immediate
survival of this species in the wild is essential. Removal of
instream barriers that prevent Rio Grande silvery minnow from
repopulating upstream reaches, the need to maintain increased
and variable flow throughout downstream reaches, and
restoration and reconnection of the historical floodplain are
paramount issues that need to be resolved to assure the
continued persistence of this species.
Id.
The declines in the Middle Rio Grande ecosystem parallel declines
experienced in rivers throughout the western United States affected by
federal water projects. Freshwater ecosystems are critical to all life
on earth; at least 12% of the world's animal species inhabit freshwater
environments. (Nature Conservancy, Freshwater Initiative (2002)). In
the United States, approximately 303 fish species, or 37% of freshwater
fish, are at risk of extinction, and at least seventeen species have
already gone extinct. (Nature Conservancy, ``The Declining Status of
Freshwater Biodiversity and National and International Water
Resources'' (2002)). About 123 species of fish, mollusks, crayfish and
amphibians in North America alone are extinct due to the building of
dams, water pollution, and loss of wetlands. (Id.) As of 1993, in the
seventeen western states, 68 fish species were listed as endangered and
threatened, and ``physical habitat alterations,'' including water
diversions, dams, reservoirs, channeling, and watershed disturbances,
was the factor cited most frequently as contributing to the decline of
these fish species. (Moore et al., ``Water Allocation in the American
West: Endangered Fish Versus Irrigated Agriculture,'' 36 Nat. Resources
J. 319 (1996)). As of 1995, 184 species that rely on habitat affected
by federal water projects run by the Bureau of Reclamation were either
listed or proposed for listing under the Endangered Species Act. (Id.)
Rio Grande Silvery Minnow v. Keys
Two federal water projects affect flows in the Middle Rio Grande:
the Middle Rio Grande Project and the San Juan-Chama Project. The
Middle Rio Grande Project, approved by Congress in 1948 and 1950,
included a vast federal overhaul and expansion of the dams and
irrigation works of the then-bankrupt Middle Rio Grande Conservancy
District (MRGCD), and authorized construction of major flood control
and levee facilities (e.g., Abiquiu and Cochiti Dams) in the Middle Rio
Grande. The San Juan-Chama Project, authorized by Congress in 1962,
called for construction of tunnels to transport water from the Colorado
River watershed across the Continental Divide into the Rio Grande
watershed, as well as construction of Heron Reservoir, on a tributary
to the Rio Chama, to hold project water before it is released to
entities contracting for the water. The central idea behind the San
Juan-Chama Project was to offset past and future streamflow depletions
in the Middle Rio Grande, and to provide water or the future growth of
the area. The Project provides on average 96,200 a-f/year of
transported water into the Rio Grande Basin.
According to its own records, MRGCD serves about 170 full-time
farms and 2,000 part-time farms. Approximately 97% of the 50-55,000
acres irrigated in MRGCD are forage, i.e., alfalfa, hay, irrigated
pasture, and silage or ensilage. Six pueblos lie within the boundaries
of MRGCD and are served by its irrigation works. During the late 1980's
and 1990's, MRGCD's records indicate that it was diverting close to
600,000 a-f/yr. of water--upwards of 11 a-f/acre/year. The State
Engineer stated in 2001 that reasonable beneficial use would probably
amount to only about 7.2 a-f/acre/year--about one-third less than MRGCD
had been diverting. 1
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\1\ During the drought of the past two years, and under pressure
from this litigation, MRGCD has reduced its diversions to the
neighborhood of 7.7 a-f/acre, an amount closer to (but still higher
than) the amount diverted by other irrigation districts in the state.
(See S.S. Papadopulos & Assoc., ``Evaluation of the Middle Rio Grande
Conservancy District Irrigation System and Measurement Program,''
(December 2002) (prepared for the New Mexico Interstate Stream
Commission))
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In April 1996, MRGCD's diversion of all the water in the Rio Grande
at Isleta Dam killed many thousands of silvery minnow. FWS subsequently
estimated that MRGCD's actions at that time killed nearly half of the
entire remaining population of silvery minnows. That disastrous kill-
off of minnows gave rise to several years of dialogue among agencies,
environmental groups, and other stakeholders about how river management
might be changed to avoid future similar calamities and to ensure
protection of the silvery minnow and the related river ecosystem.
Unfortunately, while the debate was healthy and much information was
exchanged, water management by federal and state agencies and MRGCD did
not change in any significant respect. Minnow populations continued to
spiral downward. The agencies' minnow protection program was nothing
more than a standing offer to buy any spare water that anyone offered
to sell for the minnow. There was neither a short-term nor a long-term
program to protect or recover the silvery minnow and the habitat on
which it depends. Moreover, there had never been any consultation
between the Bureau of Reclamation, the Army Corps and the FWS to
analyze what water operations actions could be taken to protect
federally-listed species such as the silvery minnow, even though such
consultation was required by the Endangered Species Act.
Only after three years of discussions failed to change Middle Rio
Grande water operations and address the problems of the silvery minnow
did several environmental groups file the lawsuit against the Bureau of
Reclamation and the Army Corps of Engineers known as Rio Grande Silvery
Minnow v. Keys. Absent this litigation, there is every reason to
believe that the silvery minnow would be extinct by now and the Middle
Rio Grande river and bosque habitats would be far more degraded than
they are today.
Court-ordered mediation in the case during the drought summer of
2000 resulted in two agreed court orders that kept up flows in the
river and avoided the anticipated river drying that would have wiped
out the vast majority of remaining silvery minnows. At that time,
upstream reservoirs were full to the brim and Albuquerque literally had
no place to store water and no use for its San Juan-Chama Project
water. Albuquerque was able to lend substantial amounts of water to the
Bureau for the minnow that will be paid back in future years when
Albuquerque most needs the water. In addition, the litigation and
mediation caused the Bureau of Reclamation to initiate a number of
other steps to aid the minnow and river flows, such as pumping water
from the Low Flow Conveyance Channel back to the river. As a result,
the silvery minnow survived that drought summer. 2
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\2\ At that time, there were virtually no silvery minnows in
captivity. The agreed orders entered in the litigation in the summer of
2000 set in motion various actions by the federal agencies and other
parties to greatly increase captive populations of silvery minnow in an
effort to ensure the existence of at least minimal remnant populations
if river drying were to kill off substantial portions of the last
silvery minnows remaining in the Rio Grande. It must be noted, however,
that the ESA requires protection of species in their native habitat. 16
U.S.C. Sec. 1531(b). While fish tanks might be used to help avoid
extinction of a species, they are not a substitute for true
conservation and recovery of a species.
---------------------------------------------------------------------------
Numerous developments grew out of the litigation over the next two
years, including entry of a Conservation Water Agreement between the
State and the United States that provided for storage of up to 100,000
a-f of water to be used for the minnow over a three year period, and
issuance of a Biological Opinion by FWS on June 29, 2001, that allowed
for significant drying of portions of the Middle Rio Grande containing
the last viable silvery minnow populations.
In late 2002, another drought year, the Bureau of Reclamation
announced that it would be unable to comply with the minimum river
flows required by the June 29th BO. Once again faced with the prospect
of massive drying of the only parts of the Rio Grande harboring the
last silvery minnows, plaintiffs went back to court to seek release of
a limited amount of San Juan-Chama Project water from Heron Reservoir
to comply with the BO. Unfortunately, by the time plaintiffs were
informed of the anticipated BO violation, MRGCD had used up all of its
stored water and thus could not help to comply with the BO. Virtually
the only water available to bring about compliance was the water in
Heron Reservoir. Chief U.S. District Judge James Parker ruled in the
plaintiffs' favor, although in order to limit the amount of water to be
released, he allowed the U.S. to meet lower flow levels than those
required by the BO. This court order, as well as an order issued
several months earlier, triggered the appeal to the Tenth Circuit that
resulted in the June 12, 2003 Tenth Circuit decision in Rio Grande
Silvery Minnow v. Keys.
Tenth Circuit Opinion
In the view of the plaintiffs, the Tenth Circuit ruling in Rio
Grande Silvery Minnow v. Keys is not significantly different from the
Ninth Circuit rulings in O'Neill v. U.S., 50 F.3d 677 (9th Cir. 1995);
NRDC v. Houston, 146 F.3d 1118 (9th Cir. 1998); and Klamath Water Users
Protective Assn. v. Patterson, 204 F.3d 1206 (9th Cir. 2000). It is not
a radical proposition to hold that federal water contracts must be
interpreted in a manner consistent with the ESA. Indeed, in the
plaintiffs' view, it would be a dramatic roll-back of the ESA to hold
the contrary: that federal water contracts should be given a narrow
interpretation that excludes the possibility of managing water to avoid
jeopardy to listed species when possible. Such an interpretation would
not only be a radical departure from current federal law. It would also
be a death warrant for our western rivers and the freshwater ecosystems
which they support--almost all of which are greatly affected by federal
water projects run by the Bureau of Reclamation and the Army Corps of
Engineers.
The main thing that differentiates this case from the earlier Ninth
Circuit cases is that it concerns, in part, federal water that is
contracted to municipalities for public water supplies. Unlike
irrigators, who generally are used to living with significant
variations in their water supply, municipalities want to be able to
count on a constant supply. Although municipalities' water needs are
different from farmers' water needs, their federal water contracts (at
least the municipal San Juan-Chama Project contracts) are not
materially different from farmers' federal water contracts. Hence,
unless and until municipal water contracts are drafted differently, we
believe it is unlikely that courts will find a rationale to treat
cities' water contracts differently from irrigation districts' water
contracts.
If it is the consensus among the federal government, water users,
and the public that municipal contracts for water from federal projects
should be given different treatment vis-a-vis the ESA than irrigators'
contracts, then the contracts should be revised and other measures
should be adopted to protect listed species from the effects of the
water deliveries. Reversing the Tenth Circuit's holding by way of
backroom appropriations riders that are strongly opposed by important
stakeholders and that never receive any public scrutiny or
congressional debate does not serve the full panoply of public
interests at stake in this case.
Some people have claimed that the Tenth Circuit's decision is a
federal grab of individuals' water rights. This is not true. The
federal government is involved in the Rio Grande because it has funded
and built dams, reservoirs, irrigation ditches, and levees throughout
the Rio Grande, to the tune of hundreds of millions of dollars. All
water users in the Middle Rio Grande have benefitted from these massive
federal investments. MRGCD, for example, paid back (over 50 years,
interest-free) only a fraction of the money that the federal government
invested in its irrigation and levee system through the Middle Rio
Grande Project. Farmers got an excellent bargain from the federal
government: massive federal dollars in return for federal ownership and
control over the irrigation system.
By the same token, those entities that entered into contracts with
the federal government for San Juan-Chama Project water didn't get an
absolute guarantee that a set amount of water would be delivered every
year, no matter what. There is no way the federal government would or
should have provided such a carte blanche promise. Rather, they got
only what the contracts provided: a promise that water would be
provided to the extent available and consistent with federal law--
including the ESA.
There is nothing fundamentally wrong with how the ESA has been
applied to water management on the Middle Rio Grande or on other rivers
in New Mexico and around the west. In most instances, the ESA is
applying, adjustments are being made, and problems are being solved
without overwhelming obstacles. Indeed, there are many success stories
around the west where application of the ESA has brought rivers and
fisheries back from the brink of death, to the great benefit not only
of the species but also of the people in the area. In many of the
rivers in California's Central Valley, for example, salmon runs have
rebounded from mere handfuls to tens of thousands. These rivers would
be barren and dead if the ESA had not been applied just as the Tenth
Circuit is applying it to the Rio Grande.
Many of the proposals to ``fix'' how the ESA applies to water
management would result in the death of our rivers. We must be careful
in the areas where it is particularly difficult to mesh the ESA with
meeting people's water needs, to craft solutions that do not simply
throw out the ESA and kill our rivers.
In those few instances that pose particularly difficult problems,
such as the Middle Rio Grande, court decisions won't fix the problems,
nor will quick congressional ESA exemptions. The only lasting solution
will come when the parties come together and collaborate to solve the
problems in a way that meaningfully implements the ESA.
Efforts to Collaborate To Protect the Silvery Minnow and the Rio Grande
One of the most positive effects of the Tenth Circuit opinion is
that it has spurred intensive efforts to negotiate a collaborative
solution to the problems on the Middle Rio Grande. The specifics of
those negotiations, led by Governor Richardson, are confidential. We
can point out, however, our firm belief that no such negotiations would
be taking place in the absence of the court's opinion. Rather, in all
likelihood, the agencies and water users would simply throw their hands
up and declare, just as they did a year ago, that they were unable to
comply with the BO and unable to preserve the silvery minnow. Without a
court opinion creating incentives to come up with creative solutions,
and with no adverse consequences stemming from a failure to protect the
silvery minnow, the river would inevitably dry up and die, taking much
of the bosque with it. It would not be long before the Middle Rio
Grande turned into the barren dry ditch that we see further downstream,
where the Rio Grande used to flow through El Paso.
Economic Effects of the Endangered Species Act on the Upper Rio Grande
Basin
Earlier this year, economists from New Mexico State University and
Siena College in New York released a study on the economic effects of
water releases for the silvery minnow. (See Exhibit 3 attached hereto;
excerpts from Frank A. Ward and James F. Booker, ``Economic Costs and
Benefits of Instream Flow Protection For Endangered Species in an
International Basin'' (2003). The economists examined the effects of
implementing minimum flow requirements for the silvery minnow in the
Middle Rio Grande that are higher than the minimum flows required by
the most recent Biological Opinion issued by FWS in March, 2003. They
found that ``[p]rotecting instream flows for the silvery minnow
produces positive market economic benefits for agriculture and M&I uses
of water for the upper Rio Grande Basin.'' (Id., p.17). They estimated
the overall economic benefit to the New Mexico/Texas area of instream
flows for silvery minnow protection to total over $1.5 million/yr.
($1,522,000). Specifically, they determined that New Mexico agriculture
would receive economic benefits in the amount of $68,000/year, while
New Mexico M&I uses would lose benefits amounting to $24,000/year, for
a net overall benefit to New Mexico of $44,000/yr. Texas agriculture
would receive $203,000/yr. of economic benefit, and Texas M&I users
would gain $1,275,000/yr, for an overall gain to Texas of $1,478,000/
year.
Moreover, these estimates of positive economic impacts from
increased flows do not even account for the benefits--both economic and
other--to the State that have resulted from the Rio Grande Compact
delivery credits coming from those increased flows. Those credits have
been especially valuable since Article VII of the Rio Grande Compact
went into effect and storage of native water would not have been
possible absent relinquishment of Compact credits.
In addition to these projected economic impacts resulting from
increased river flows for the silvery minnow, there have been other
positive economic impacts on the region from efforts to restore the
silvery minnow and its river habitat. Federal funding (together with
state and local cost-shares) of river restoration and minnow protection
efforts over the past several years has injected in the neighborhood of
$30 million into the regional economy. The State of New Mexico and
various other governmental entities have also provided significant
amounts of additional funding in furtherance of protection of the
minnow, the river, and the bosque. This funding has not only benefitted
our economy, it has benefitted the river. There are currently over
fifty restoration projects in the Middle Rio Grande that are ongoing or
in planning stages that are funded or sponsored by federal, state and
local governments and other entities. (Tetra Tech, Inc./Alliance for
the Rio Grande Heritage, A Framework for a Restoration Vision for the
Rio Grande: Hope for a Living River (May 2003), App. D).
Impacts of the Tenth Circuit Ruling on Albuquerque and Other Municipal
San Juan-Chama Contractors
The Tenth Circuit decision has provided a common sense
interpretation of the terms of the contract that Albuquerque entered
into with the United States regarding provision of 48,200 a-f/yr. of
San Juan-Chama Project water to Albuquerque, when such water is legally
available. For Albuquerque to leap to the assumption that its contract
was a perpetual guarantee for 48,200 a-f of water every single year
forever more, regardless of the circumstances and regardless of the
language of its contract, was simply wishful thinking.
In any event, Albuquerque (and other San Juan-Chama contractors)
has several options for alleviating the uncertainties in its current
contract. It can renegotiate its San Juan-Chama contract with the
United States to provide greater certainty. It can also seek
congressional action to provide the level of certainty desired in its
water contract. Or, it could live with the terms of its contract, with
the assurance that the federal government cannot take large amounts of
San Juan-Chama Project water to use for the minnow because the San
Juan-Chama authorizing legislation expressly requires that ``a
reasonable amount'' of water be delivered to contractors.
A recent poll conducted by University of New Mexico's Institute for
Public Policy found that people ranked use of water for the Rio Grande
and riparian areas second only to water for drinking and bathing in
importance. Less than 1% of Albuquerque's San Juan-Chama water will be
used for drinking. Most of it will be used for outdoor watering of golf
courses, turf and other water-guzzling amenities. Thus, if any San
Juan-Chama water were ever to be taken by the federal government and
used for the minnow under the Tenth Circuit's opinion--which would only
happen if the New Mexico stakeholders were unable to solve these
problems themselves--it would not affect anyone's drinking water.
Rather, it would be in essence a reallocation of water from golf
courses and non-native lawns to endangered species, and the river and
bosque on which they depend. Such a result would be consistent with the
purpose of the Endangered Species Act. It would also be a proper
response to the warning of the impending demise of our river that is
being given by our ``canary in the coal mine''--the Rio Grande silvery
minnow.
______
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Statement submitted for the record by Alletta Belin,
New Mexico Counsel, Western Resource Advocates
In response to Chairman Pombo's statement that the written record
would be open for ten days following the September 6, 2003, field
hearing on the impacts of the Rio Grande silvery minnow, I submit this
additional testimony to correct some erroneous statements that were
made at the hearing.
1. LIt was stated that at least one farmer lost at least 30% of his
crops this year due to the Tenth Circuit's ruling in Rio Grande Silvery
Minnow v. Keys. This is not true. No farmer has lost crops this year
due to water reductions resulting from the court ruling. The Middle Rio
Grande Conservancy District's irrigation season has been cut short by
drought--not by actions taken by the federal government in response to
the court ruling. In fact, MRGCD has voluntarily contributed about 3100
a-f to the minnow this year, which is only enough water to provide a
few days of irrigation. I invite the Committee to confirm this fact by
consulting with the Bureau of Reclamation.
2. LIt was stated that the Tenth Circuit released fifty years'
worth of water from reservoirs in one year for the minnow. This also
has absolutely no basis in fact. I assume that the speaker was talking
about the year 2000--the year in which the most water was released to
keep the silvery minnow from extinction. In that year, the federal
government purchased and used approximately 144,900 a-f of water for
the minnow. 1 About 70,000 a-f was purchased and used by the
federal government before court-ordered mediation in Rio Grande Silvery
Minnow v. Keys took place, and 74,900 was purchased and released as a
result of two agreed orders that resulted from the mediation. (See
August 2, 2000, Agreed Order and October 5, 2000, Supplemental Agreed
Order in Rio Grande Silvery Minnow v. Keys, Civ. No. 99-1320-JP/LAM.)
Thus, the total amount of water released in 2000 for the silvery minnow
was about 145,000 a-f. Virtually all of this water was San Juan-Chama
water that was not needed by the water users and contractors at that
time. Since 96,200 a-f/yr. of San Juan-Chama Project water is available
for use in New Mexico, that means that about one and one-half years'
worth of San Juan-Chama Project water was used in 2000--not fifty
years' worth of water under any measure.
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\1\ 30,000 additional a-f was made available to the federal
government by the City of Albuquerque in the October 5, 2000,
Supplemental Agreed Order but was not used because it was not needed,
and 36,000 a-f of water was provided under the August 2, 2000, Agreed
Order to MRGCD for irrigation.
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Thank you very much for the opportunity to testify before your
committee on the impacts of the Rio Grande silvery minnow on New
Mexico.
______
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The Chairman. I'd like to now recognize Mr. Tom Wesche.
STATEMENT OF TOM WESCHE, BIOLOGIST,
HABITECH, INC., LARAMIE, WYOMING
Mr. Wesche. Good morning, Mr. Chairman, Honorable Committee
Members. I appreciate the opportunity to testify before you
this morning concerning Rio Grande silvery minnow issues in New
Mexico. Since 1999 I have served as a fisheries consultant for
the Middle Rio Grande Conservancy District on issues pertaining
to the minnow. In this capacity I served as a member of the
Collaborative Program's Science Subcommittee.
In my letter of invitation I was asked to address several
matters, including my views on the Tenth Circuit Court's
ruling, the need for a additional flows to benefit the minnow,
the underlying role of science in the recovery process, and the
role of habitat enhancements and monitoring in this process.
As the first two issues are closely related, allow me to
address them jointly. It is my understanding that the Tenth
Circuit's ruling permits the Bureau of Reclamation, acting
under the ESA, to reduce contract deliveries of non-native San
Juan-Chama water and use that water for the benefit of the
silvery minnow.
In essence, this ruling supports the notion that more water
is necessary to conserve the minnow and that by simply
releasing more from storage, no matter the source or the
probability of future supply, the species will be protected. I
disagree with this viewpoint and submit that history does not
support the assertion that river drying can reduced flows of
the principal causes for the current status of the silvery
minnow.
Over the past 50 plus years, while minnow numbers have
apparently been decimated, river flows have been substantially
augmented and the number of zero-flow days substantially
reduced. Such facts lead me to conclude a strategy of simply
releasing copious amounts of water down the Middle Rio Grande
channel to benefit the silvery minnow has failed.
Our critically low water supply levels dictate such
wasteful practices be discontinued in favor of a more holistic
approach such as that mandated by the Biological Opinion. This
approach recognizes the hydrologic reality of the Middle Rio
Grande, that river drying has occurred historically and will
continue in the future, that priority life functions such as
spawning must be protected first when water supply is short,
that management priority must be given to those river reaches
where flow can be provided most efficiently while maintaining
other legitimate water uses, that refugia, hatcheries, and
other sanctuaries are necessary, and that multiple factors,
such as habitat degradation, passage barriers, and predation
and competition have contributed substantially to the decline
of the species.
I am encouraged by this approach and hopeful we can now
move past the single, divisive issue of ``keeping the river
wet'' at all cost and on to the important business of
conserving the minnow. To this end, I am supportive of the
current Biological Opinion and legislation such as that being
sponsored by Congressman Pearce and H.R. 2603 which provides a
positive solution to the problems created by the Tenth
Circuit's decision.
Regarding the role of science in the recovery process, let
me simply say ``science'' and the application of the
``scientific method'' is the critical underpinning of the
entire recovery process. Complex problems require complex
solutions, and science provides the framework within which such
complex solutions will be crafted for the Middle Rio Grande.
Concerning the role of appropriate habitat enhancements,
I'm of the opinion that the physical habitat of the Middle Rio
Grande is severely degraded and recovery of the silvery minnow
is questionable at best unless river-wide habitat enhancement
measures are implemented. Flow-based solutions alone will not
return habitat for the minnow. Well-conceived, designed and
implemented habitat enhancement measures are needed to re-
connect the river with its floodplain, widen the channel to
promote diversity, and increase complexity. These are high
priority measures needed immediately if silvery minnow recovery
is to proceed.
Finally, monitoring of the silvery minnow population is an
important component of the recovery effort. A river-wide,
representative, statistically valid sampling program yielding
quantitative results is necessary to document baseline
conditions, teach us about the temporal and spatial
distribution of the species, measure program successes and
failures, and chart our progress toward established recovery
targets. The Science Subcommittee has spent considerable time
debating this matter I am confident that through these
discussions, input from expert peer reviewers, and perhaps some
fine-tuning, the resulting monitoring efforts will meet the
needs of the program.
The Chairman. Thank you.
[The prepared statement of Mr. Wesche follows:]
Statement of Thomas A. Wesche, Principal Scientist and Professor
Emeritus, HabiTech Inc. and University of Wyoming, representing Middle
Rio Grande Conservancy District
My name is Thomas A. Wesche. I appreciate the opportunity to
testify before you on matters concerning the Rio Grande silvery minnow
(RGSM) in New Mexico. My resume is attached for your review. To
summarize, I am presently the Principal Scientist for HabiTech Inc. and
Professor Emeritus of Water Resources at the University of Wyoming. I
have over 30 years professional experience in the western United
States, including the desert southwest, as a fisheries scientist and
surface water hydrologist, specializing in the evaluation and
restoration of degraded river systems, the habitat requirements of
various fish species, and the determination of suitable instream flow
regimes to protect and restore aquatic ecosystems. In New Mexico, I
have served as a member of the Biology Committee for the San Juan River
Recovery Implementation Program since the mid-1990's and as a
consultant for the Middle Rio Grande Conservancy District since 1999 on
issues concerning the RGSM. In this latter capacity, I serve as a
Delegate to the Middle Rio Grande Endangered Species Act Collaborative
Program (MRGESACP) Science Subcommittee and a member of the San Acacia
Fish Passage Workgroup and the newly formed RGSM entrainment ad hoc
group. Also, I have conducted research on physical barriers to RGSM
passage and am currently initiating projects to restore RGSM habitat
using large woody debris and quantify hydrologic alteration along the
middle Rio Grande.
In my letter of invitation, I was asked to address several matters
in my testimony. These include my views on 1) the 10th Circuit Court's
ruling on Rio Grande Silvery Minnow, et al. vs. John W. Keys, III, et
al.; 2) the need for additional flows to benefit the silvery minnow; 3)
the underlying role of science in the silvery minnow recovery process;
and, 4) the role of appropriate habitat enhancements and improved
monitoring measures in the recovery process. Following are my opinions
on these issues.
As my views on issues 1 and 2 are strongly intertwined, allow me to
address them collectively from a scientific, not a legal, perspective.
It is my understanding that the 10th Circuit Court's ruling permits the
Bureau of Reclamation, acting under the ESA, to reduce contract
deliveries of non-native San Juan-Chama water and use that water for
the benefit of the silvery minnow. In essence, this ruling supports the
notion that more water is necessary to conserve the silvery minnow and
that by simply releasing more from storage, no matter the source or the
probability of future supply, the species will be protected. I disagree
with this viewpoint and continue to argue, as I have for the past
several years, that history does not support the assertion that
intermittency, river drying, and reduced flows are the principal causes
for the current status of the silvery minnow. For example, if we
compare the San Marcial stream flow record for the 1950 to 1972 period
with that for the 1973 to 1999 period, we find that mean monthly flows
are substantially higher during every month of the year and the
occurrence of zero-flow days substantially lower during the more recent
period, when minnow numbers have apparently declined sharply. Likewise,
comparison of similar time periods using the Albuquerque stream flow
record results in similar findings. While silvery minnow have
apparently declined, river flows have been substantially augmented and
the number of zero-flow days reduced. Hydrologic facts such as these,
coupled with the more recent unsuccessful flow augmentation efforts to
maintain or enhance minnow numbers, lead me to conclude the strategy of
simply releasing copious amounts of water down the middle Rio Grande
channel to benefit the silvery minnow has failed. Our critically low
water supply levels dictate such wasteful practices be discontinued in
favor of the more holistic approach mandated by the current Biological
Opinion, and now being implemented by the MRGESACP. The single
Reasonable and Prudent Alternative recognizes 1) the hydrologic reality
of the middle Rio Grande by differentiating stream flow prescriptions
between dry, normal and wet years, 2) that river drying has occurred
historically and will continue in the future, 3) that priority life
functions such as silvery minnow reproduction must be protected first
when water supply is short, 4) that management priority must be given
to those river reaches (such as the Albuquerque reach) where flow can
be provided most effectively and efficiently, while maintaining other
necessary, and legitimate, water uses, 5) refugia, hatcheries, and
other types of sanctuaries are necessary, at least in the shorter term,
to protect and conserve the species, and 6) multiple factors, such as
physical habitat degradation, poor water quality, passage barriers, and
predation and competition from native and non-native species alike,
have likely contributed substantially to the decline of the silvery
minnow. I am encouraged by this holistic approach and hopeful we can
now move past the single, divisive issue of ``keeping the river wet''
at all cost and on to the important business of conserving the Rio
Grande silvery minnow. To this end, I am supportive of the current
Biological Opinion and of legislation such as that being sponsored by
Congressman Pearce in H.R. 2603 which provides a positive solution to
the problems created by the 10th Circuit Court decision.
The third issue I was asked to address relates to the underlying
role of science in the silvery minnow recovery process. Let me begin by
simply saying that in my opinion, ``science'', and the application of
the ``scientific method'', is the critical underpinning of the entire
recovery process. As you may recall from junior high science class, the
steps in applying the ``scientific method'' are quite simply stated: 1)
observe a phenomenon; 2) develop a hypothesis to explain the
phenomenon; 3) design an experiment to test your hypothesis; 4) gather
your data; 5) analyze your data; and, 6) accept or reject your
hypothesis based upon the conclusions drawn. On paper, it sounds pretty
simple. In practice, it usually isn't, especially within the framework
of a collaborative program composed of numerous signatory agencies and
groups, all with diverse and often competing missions, trying to
conserve a minuscule biological organism about which we know precious
little that lives in a highly complex river system about which we also
know precious little. Given such a scenario, how does one even attempt
to proceed? Well, to avoid total chaos and hopefully to begin to make
progress, we fall back, often perhaps without even knowing it, on the
framework provided by the scientific method. We begin the slow, often
agonizing and confrontational process of trying to work our way through
those six steps. At the start, can we even agree on the phenomenon
(e.g. silvery minnow are scarce), let alone on the hypotheses to
attempt to explain why (e.g. water is in short supply, habitat is
degraded)? Each step of the way is fraught with disagreement, mistrust,
argument, and the like, as we attempt to identify probable limiting
factors and ways to address them. Eventually though, with the help of
outside peer reviewers and the clearer thinking that hopefully results
from perhaps heated yet productive scientific debate and
experimentation, management actions are implemented, monitored and
evaluated leading to progress toward recovery. Unsuccessful treatments
and prescriptions will be discarded or modified, while successful
efforts will be documented and duplicated elsewhere. From my
perspective, the MRGESACP is still in the early stages of this process.
We are attempting to define complex phenomena with the short-term and
incomplete data sets that we have in hand, our hypotheses are still
somewhat fuzzy and untested, and our ability to draw conclusions is
tenuous at best. Complex problems typically require complex solutions.
Science and the scientific method provide the framework within which
such complex solutions will be crafted for the middle Rio Grande.
The final issue I was asked to address concerns the role of
appropriate habitat enhancements and improved monitoring measures in
the recovery process. Over the past several years, I have had the
opportunity to conduct four aerial reconnaissance flights over the
middle Rio Grande through the designated critical habitat and have
spent numerous days in the field observing habitat conditions. Based
upon these observations, my review of historic records and documents,
and my experience with degraded river systems throughout the western U.
S., I am of the opinion that the physical habitat of the middle Rio
Grande is severely degraded and recovery of the silvery minnow is
questionable at best unless river-wide habitat enhancement measures are
implemented. In its present condition, much of the river is narrower,
deeper, and swifter than it was historically. Habitat diversity has
been substantially reduced, secondary channels have been cut-off from
the main channel and lost, substrate coarsening has occurred with
gravels and cobbles replacing silts and sands in many locations, and
important elements of structural complexity, such as large woody
debris, have been flushed from the system without replacement. The
result is a substantial reduction in habitat quantity and quality for
the silvery minnow. Stream flow-based solutions alone will not return
habitat for the silvery minnow to the middle Rio Grande. Well-
conceived, designed and implemented habitat enhancement measures, such
as those described in the Biological Opinion and now being implemented
by the Bureau of Reclamation and others, are needed to re-connect the
river with its floodplain, widen the channel to promote habitat
diversity, and increase overall complexity. These are high priority
measures needed immediately if silvery minnow recovery is to proceed.
Monitoring of the silvery minnow population is an important
component of the recovery effort. A river-wide, representative,
statistically valid sampling program yielding quantitative results is
necessary to document baseline conditions, teach us more about the
temporal and spatial distribution of the endangered species as well as
the other members of the fish community, measure program successes and
failures, and chart our progress toward established recovery targets.
We need to be certain that our monitoring 1) is sampling habitats
throughout the middle Rio Grande in proportion to their availability,
2) using appropriate fish collection methods, procedures and gear for
all habitat types present within the river, 3) has a sampling frequency
sufficient to detect seasonal distribution shifts but not so repetitive
that undue sampling mortality and species behavior modifications occur,
4) is thoroughly documented and reproducible, and 5) is producing
quantitative results of sufficient statistical rigor to allow valid
temporal and spatial comparisons to be made and progress toward
recovery to be documented. Over the past year, the Science Subcommittee
of the MRGESACP has spent considerable time debating this matter. I am
confidant that through these discussions, input from expert peer
reviewers, and perhaps some fine-tuning, the resultant monitoring
effort will meet the needs of the Program.
This concludes my written testimony.
______
[Mr. Wesche's response to questions submitted for the
record follows:]
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[GRAPHIC] [TIFF OMITTED] T9218.015
The Chairman. We're now going to turn to the members for
questions, and I remind the members that we are limited to 5
minutes to question as well.
We have basically two separate issues that we've heard
testimony on this morning, one deals with the water and who
owns the water, and as Congressman Pearce talked about in the
Fifth Amendment to the Constitution, ``nor shall private
property be taken for public use without just compensation.''
And we have a question as to who owns the water, and if the
water is taken, who should be compensated for that. Several of
the water users that have testified, several that we have heard
from in letters and in e-mails to the Committee, have dealt
with the need for there to be some kind of compensation in
terms of water that is taken.
The other question that is in front of us I think deals
with the minnow itself, you know, is it endangered? If it is,
how do we recover it? What is critical habitat? And those are
two very separate issues, even though they all fall under the
Endangered Species Act.
I'll tell you, under the way that the law is currently
being implemented they have established the right to take
private property to enforce the Endangered Species Act. And
that's what's going on, not just here in New Mexico, but all
over the country, whether it's private property, or water
rights, or what have you.
There has been a history in recent years of them being able
to take control over the private property in order to enforce
the act. And my argument has always been that if they are going
to take private property you should be compensated for that
private property. But, you know, that is an issue that Congress
has debated and continues to struggle over, as how we deal with
that particular issue.
On the question of the minnow, and I'd like to turn to Dr.
Wesche if I can. We hear that, from you, that this may not be,
the decisions that are being made right now may not be the best
way of recovering the species, that there may be a better way
of going into this. And I know that you've been very involved
with this, but can you explain to me a little bit more about
what, what response you've gotten from the Federal agencies in
terms of what your ideas and others have in terms of recovering
the species?
Mr. Wesche. I would attempt to give that my best shot.
First off, let me say that I'm not sure that my argument that
river drying and removal, that river drying and the condition
of flow within the Rio Grande channel is not a primary cause. I
don't think that argument has gone very far with many of the
Federal agencies, and perhaps others. Certainly some within the
program that I've discussed my arguments with are receptive to
them, others are not. And this is why the program is there, and
in a forum such as the Science Subcommittee are there to
discuss such matters.
In my opinion, while the stream flow is certainly an issue,
there is a dual goal here that we have to look at if we're
going to recover the silvery minnow. Sure, we do need some
amount of water, but the critical question, in my opinion, is,
how is that water performing and behaving within the channel to
which it flows.
And this is where the matter of habitat enhancement and
physical habitat restoration enters into questions. We're
dealing have a very severely degraded channel here, and as I
testified earlier, even though flows recently have been
augmented substantially, the minnow has not recovered, and that
tells me something is lacking here. And a big part anyway of
what is lacking, and certainly not the entire answer is a well,
is a diverse, complex channel through which whatever flows
available can provide for that.
The Chairman. Just, finally, let me ask you, you have an
understanding of the hydrology of the river, the way that the
river works. Right now they are taking imported water and
releasing that in an effort to increase flows. What would
happen in the river if that water wasn't there, if they hadn't
imported that water into the system, if the reservoirs that
were built over hundreds of years in this area, if all the
canals, everything wasn't there and we went through an extended
drought period, what would happen to the river?
Mr. Wesche. Well, let me respond by saying that
historically, while intermittence was a natural characteristic
of the river, that the river, the structure of the river was
quite a bit different than what we see today, is my belief. We
had a much broader floodplain where we had secondary and
tertiary channels where small amounts of water would remain,
even though flow in the river no longer was present, but
species could exist within that. What we see now is a river
that has been severely channelized, both due to man's actions,
and also physical processes within the river itself. We see a
river that's been narrowed and deepened, and it's connection
with its floodplain and the secondary channels, has been lost.
So today, when we see a river, the river go dry, we may not
have some of these historic habitats available to us.
Now, to my knowledge, no one has yet defined exactly what
the in-stream flow requirements of the minnow are. And that, to
me, is also one of the areas lacking so far.
The Chairman. Thank you.
Mr. Baca.
Mr. Baca. Thank you very much, Mr. Chairman. The first
question I have is for D'Antonio, Jr., who is representing the
Governor's Office. We understand that the endangered silvery
minnow is an emotional issue for the people of New Mexico. How
great of a financial impact do you say that the endangered
silvery minnow will have on the State of New Mexico, both from
agricultural and infrastructure development resulting from
water use reduction?
Mr. D'Antonio. Mr. Chairman, Members of the Committee. The
financial impact to the Middle Valley, obviously, I think that
the biggest impact that is going to cause concern to everybody
is the drought situation, the drought scenario that we have.
Everything that we've been able to do within state law is to
require the Federal Government to come in and acquire at an
arms'-length transaction, water from individual private
property holders.
To date, and we've been able to do this, to date we've been
able to permit every Federal Government activity that's come in
and require that the Federal Government actually does purchase
water from willing buyers and willing sellers. And from my
office standpoint, I don't see any reason why we're going to do
any different in terms of protecting private property owners'
rights within the state.
I guess my feeling is, and the things that I'm trying to do
within my office, is establish some sound water-banking
techniques in which in times of drought, in which we have
periodic drought times in which we have limited supply of
water, I want to make sure that the senior water right holder
is protected in terms of being able to lease and/or sell his
water right for another use, and make sure that that senior
water right holder is protected.
In terms of the financial impact to the farmers, and
everybody else, municipalities, Native Americans, every other
water user within the State of New Mexico, really the drought
is the over-arching economic impact to the state. And I see
right now no reason why the endangered species shouldn't be
sharing in that shortage.
We have a shortage in almost every basin within basin, I
say almost every, every basin within the State of New Mexico we
have a shortage of water resources. And we're implementing
shorted sharing amongst all users. And I guess my concern is
that the endangered species also shares in that shortage.
And I think we have mechanisms in place with the refugium,
the ability to breed in captivity the endangered species that
we can reintroduce. I think Biological Opinion allows for us to
dry the river, and I think within the state we're dealing more
with issues of drought than we are with just water being
provided for the minnow.
If we have a good system in place we should have a willing
seller and, in this case, a farmer that may not be having a
full supply of water, have the ability to sell his supply to
the Federal Government for endangered species use and make sure
that that senior water right holder is compensated; there is
not a taking and still provide some flexibility within our
system to allow water for the minnow.
Mr. Baca. Eileen, you look like want to jump in here. Could
you tell us what it would be, or do you have a figure or cost?
Because I know you talked about providing funds. As we're
looking at the needs of providing funds we'd like to look at
what is the actual infrastructure of the cost that may impact
the area as well?
Ms. Grevey Hillson. Chairman Pombo, Representative Baca,
Members of the Committee. In terms of the City of Albuquerque,
we have already paid over 50 million dollars for this water. By
the time the San Juan-Chama project would be completed, with
its associated subprojects, that would be over 250 million
dollars. If our 48,200 acre feet was put at risk and we were
not able to do it, it would immediately be a 50-million-dollar
lump sum loss.
The replacement cost, at about 4500 to $5,000 an acre,
would be over 300 million dollars for the City of Albuquerque.
That doesn't begin to touch the opportunity cost of what we
could have done with that water that we've already paid for, or
what we could have done with the water that we would need to
secure to go out and replace the San Juan-Chama water.
I'd like to underscore the fact that was brought up by
Committee Members, that there is something called fiduciary
responsibilities of elected city officials to the ratepayers,
asking them for seven rate increases. And that's another very
negative impact that would come about with the threatened loss
of this water.
One final thing I just wanted to add is that when we talk
about compensation for water that has been taken, that this is
community would certainly agree that water that is taken should
be compensated for, but there is a problem with monetary
compensation for water, you cannot drink money.
And the water that the City of Albuquerque intended to
utilize to offset the effect of its pumping groundwater, the
impact that that had on surface flows in the Rio Grande, there
is no amount of money that is going to be able to compensate
for putting wet water back into the river to offset for that
groundwater pumping. And we don't want to turn the clock back
to continuing the unsound mining of our aquifer. So it presents
a great dilemma.
Mr. Baca. I know that my time has expired because the red
light has come on and back in D.C. they would cut us off
immediately, but hopefully the Chair would allow me to ask one
additional question and hopefully we have time to ask
additional ones. And if not, I'll submit those and hopefully
you'll be able to reply or some of the panelists out here.
To John D'Antonio; What do you think the region could to do
improve water infrastructure and use to benefit the communities
that rely on the Rio Grande?
Mr. D'Antonio. Mr. Chairman, Congressman Baca. The--we need
more funding in terms of looking at the measuring and metering
and look at efficiencies. The whole, biggest problem within,
with New Mexico, I feel, is being State Engineer and trying to
administer, actively manage our water resources, is the lack of
measuring and metering devices to actually go in and look at
implementing and enforcing, number one, priority
administration, which we don't have the tools in place to
administer priorities.
And number two, in the absence of having the proper tools
in place, which are measuring and metering devices, which are
an active water master and rules and regs within all the major
river basins, we have to have measuring and metering components
so that we can account for the water usage. And that's where we
need to focus in the short term.
Mr. Baca. Thank you.
The Chairman. Mr. Calvert.
Mr. Calvert. Thank you, Mr. Chairman. My favorite
philosopher once said, Yogi Berra, ``It's deja vu all over
again,'' and we've been here before, Mr. Chairman. We've been
in Klamath Valley, we've been talking about the Platte,
Nebraska, Upper Mississippi in Missouri, the Arkansas River in
Colorado, and certainly the Colorado River. I've spent some
time in Brownsville, Texas.
And my second favorite philosopher is Clint Eastwood, and
he said, ``You got to know your limitations.'' And what I mean
by that is that the reallocation of water within the state. And
you will hear from some, and we've heard from many over the
years, that all waters are Federal waters. And obviously I
don't believe that, I don't think most people believe that;
certainly most water law doesn't represent that. And I guess my
first question is for the State Engineer John D'Antonio, can
you describe how the other western states are viewing this
current Tenth Circuit decision?
Mr. D'Antonio. OK. Mr. Chairman, Congressman Calvert. Yeah,
I think every western state has the same opinion as we do, that
the Tenth Circuit decision is an absurd decision, that it
really will give the Federal Government the discretion to go in
and take water. And again, that's where I would draw the line,
obviously, within the State of New Mexico, with that first
taking.
And I consider that these perpetual contracts that are in
place with the San Juan-Chama water, if the government were to
have that, the Federal Government, that discretion to take
water, then it is a taking in my view, and I think every other
of the western states--
Mr. Calvert. You bring up a key word, the word
``discretion,'' and in all water case law we come up with the
word ``discretion'' is being bantered about. But the
Secretary--does the Secretary have discretion to reallocate
water, especially within a state, for other purposes? And
really, I think that this entire case is hinged on that, on
that, that principle. How does that impact western water law
principle throughout the west, not just the law of the river
that has been created here in the Rio Grande, but every major
river in the west?
Mr. D'Antonio. Mr. Chairman, Congressman Calvert, I think
it turns of the prior appropriation system on its head, again,
my feeling is that--and my job is to protect the senior water
right holder on the system within New Mexico, and I think this
decision, if it stays as it is, has far-reaching effects to do
just that, to turn the prior appropriation system on its head.
Mr. Calvert. If state water law is put on its head, as you,
I think, accurately state, how are states like New Mexico, or
any other western state, able to make economic decisions for
their future if the amounts of water are undeterminable? In
other words, if, in fact, you have a question mark of whether
or not water right will hold, based upon what has been
historically the case, how do you, as a water engineer, make
decisions? Are you able to make decisions?
Mr. D'Antonio. Well, Mr. Chairman and Congressman Calvert,
you know, it's almost impossible to make a fair decision in
terms of how we allocate our water resources and make sure that
the senior water right holders are protected.
Mr. Calvert. Have other states joined New Mexico in its
legal efforts to rehear the circuit case?
Mr. D'Antonio. Mr. Chairman, Congressman Calvert, I believe
so. There's significant amount of other western state interest
in terms of--I don't know the particular states but I know that
they have joined New Mexico in their views.
Mr. Calvert. OK. On the--you know, we run into a lot of
issues as far as reallocation of water because of the
Endangered Species Act. Obviously, you know, New Mexico is not
by themselves in this case. But I think it would be, the people
here in New Mexico need to understand that this is an issue
that's broader than just New Mexico. This is an issue that by
some, we believe, that the Federal Government should control
the reallocation of water within the states, and I think it's
up to us here, as members, to obviously protect the rights of
the states and the community because just, by the way, paying
individuals for water is, in my mind, still, still does not
answer the question of third-party impact. There are third-
party impacts on the environment when water is exchanged. There
are certainly third-party impacts on communities and economies
beyond just the payment to a farmer, those who may hold private
property.
My time is expired. I look forward to the second round.
Thank you, Mr. Chairman.
The Chairman. Congressman Pearce.
Mr. Pearce. Thank you, Mr. Chairman. Before I start my
questions I'd like unanimous consent to include a tape from a
rally held earlier today with several speakers on this issue.
Include that in that testimony from today.
The Chairman. Without objection.
[NOTE: The tape has been retained in the Committee's
official files.]
Mr. Pearce. I appreciate the presentation from of all of
you. Ms. Sanchez gave just a compelling personal testimony of
her family that's caught in this issue. Ms. Hillson adequately
described the need for certainty. The Governor just gave us the
historical, spiritual qualities of water that I appreciated.
John, I'm always appreciating your testimony every time I hear
or see you. I'm glad you're representing us in the water issue.
I think the boldness with which you characterized the Tenth
Circuit decision, takes a lot of courage to say that publicly,
and I appreciate your willingness to take a stance.
My question for you is, in your opinion, does the treaty of
Guadalupe Hidalgo precede or supersede this decision by the
Tenth Circuit or can the Tenth Circuit even take waters that
should be guaranteed through that treaty?
Mr. D'Antonio. Mr. Chairman, Congressman Pearce. I'm, I
guess I'm a little bit deficient in being able to answer it in
terms of the treaty of Guadalupe Hidalgo other than I would say
that I don't think the Tenth Circuit decision has any merit at
all in terms of how it's come out; so, obviously, the treaty
would suffice or would--
Mr. Pearce. I was asked the question earlier today and,
frankly, had no answer either, but it does not look like the
court is saying that the treaty waters are exempt in any way.
Ms. Belin, in your verbal testimony, and page six of your
testimony, you claim that the Federal Government has the
perfect right to be involved because it's funded and built the
dams, reservoirs, irrigation ditches and levees to the Rio
Grande to the tune of hundreds of millions of dollars. Is there
some default that exists to justify this, this intrusion by the
Federal Government or is it not a case of default that,
instead, just the lending or participation is the basis of the
Federal Government's presence?
Ms. Belin. Mr. Chairman, Representative Pearce. The Tenth
Circuit decision is fundamentally an interpretation of the
Federal contracts, and those Federal contracts were entered
into by a bargain basically between the water users and the
Federal Government. They got, the water users got a lot of
benefits, and in return for that they gave, gave some things
up. And I think fundamentally the decision just is a reading of
a contract in saying what does this contract provide?
In the case of the San Juan-Chama contracts, the only--
those contracts are the only basis for those water rights. So
it's really just a matter of looking at the contracts and
interpreting them, and interpreting how much discretion is left
in the Federal Government.
In the case of the Middle Rio Grande, it's a little bit
different because people already had water rights under the
state prior appropriation system, but then the district entered
into a contract with the Federal Government to get those
Federal investments, and in the process of entering into the
contract, the Federal Government got ownership over the
diversion facilities and the other works, and thus has
authority over those. So I think it's really a matter of
Federal contract law basically.
Mr. Pearce. Really, I did not hear in that comment that
there was default of any kind. The Federal Government--three or
4 years ago when I was in the state legislature--brought suit
to declare ownership of water in the Elephant Butte irrigation
system, and it's my understanding that that's the only Bureau
of Reclamation project that has been paid off in full. And
would your firm engage in lawsuit saying that the Federal
Government should be there taking that water, or would you not
in the case where the facilities have all been paid free and
clear?
Ms. Belin. Well, I think it's a question of who owns the
facilities and what the law provides as to who has authority
over those facilities so who can operate them. And I'm not
familiar--I know that the Middle Rio Grande project, Congress
has not turned back the facilities to MRGCD, so the Federal
Government still owns them. So--and I'm not exactly familiar
with the status of that on the Rio Grande project.
Mr. Pearce. So the Elephant Butte was where the suit was
brought and, again, those facilities have been paid off and yet
the Federal Government said they own the water. And so I think,
Mr. Chairman, what we're seeing is a great assault from the
Federal Government to say that ``we own all the water in the
west;'' it was actually for a short time last year, a
legislation in the senate that declared that.
And I think that, that we, in the poor states, we states
that don't have millions and millions of population, are going
to lose tremendously if, if the Federal Government takes water,
because it will go where its politically expedient for it to
go. And so this fight is a fight, not only for property rights,
for constitutional rights, but it's a fight for the small, less
populous states against those that would take the water for any
purposes.
My last point, I think, with regard to this, and, Mr.
Wesche, I appreciate your comments on it, we feel like are on
track. But this concept that the Federal Government sometimes
lent money and, therefore, it's got a right to take ownership,
is one that seems only to be directed at the agriculture
segment. I don't see the Federal Government saying that ``we
built all of the highways through your state; these are not
loans even. We built all the highways so we own all the
commerce. We own every vehicle that goes over the highways.''
We've built in China the Three Gorges Dam and in Egypt the
Nasser Dam, and I don't see anyone in America saying that we
should take ownership of the water in those areas. It looks
like the justification that the Federal Government somehow got
involved and lent money is one that's peculiarly used as an
attack on the agricultural community.
Mr. Chairman, the agriculture economy is the economy along
this Rio Grande River. It's not just farmers and ranchers that
will be out of jobs, it's people who sell oil, tires,
fertilizer, tractors; the stakes are huge in this battle for my
district.
And, Mr. D'Antonio, I'm happy to have you there, again,
because I think your position is the most key position in this
water fight.
Thank you all for being here. Thank you all for your
testimony.
The Chairman. The Chair now recognize Congresswoman Heather
Wilson.
Mrs. Wilson. Thank you, Mr. Chairman. And again, thank all
of you for your testimony.
I have some questions to clarify some things and, John, I
believe maybe you can help me on some of this water law. If the
Federal Government owns a dam, do they own the water right.
Mr. D'Antonio. Mr. Chairman, Congresswoman Wilson. No, the
ownership of a water right in New Mexico is based on who put
that water to beneficial use. And, obviously, the farmers in
the Middle Rio Grande, which we're referring to here, they're
the ones that have put water to beneficial use. They're the
owner of that water with that priority date, depending on when
they put that water to use.
Mrs. Wilson. So does the Federal Government have any water
rights on the Rio Grande?
Mr. D'Antonio. Mr. Chairman, Congresswoman Wilson. They do
have some water rights in terms of federally reserved rights
for service and some things along those lines. But as far as
actually owning water rights, it's very limited.
Mrs. Wilson. And those water rights were acquired in
accordance with state law; is that a right?
Mr. D'Antonio. Yes, Mr. Chairman, Congressman Wilson. All
water rights that I've seen involving Federal Government is
being permitted through state regulation.
Mrs. Wilson. Alletta, I had some questions for you as well.
I think this is, reading your testimony as far as how far these
Federal rights go, in your view, to use other people's water.
Your view that the Federal Government would provide water to be
included was to the extent consistent with ESA. Now, does that
mean that the Federal Government has the right to take tribes
continuing water rights--
Ms. Belin. I'm sorry, I couldn't hear you, the last part. I
heard the first part.
Mrs. Wilson. Does the Federal Government have the right to
take tribes pre-treaty water rights if they need it to comply
with the Endangered Species Act? Does the ESA own the right of
private water, pre-treaty water rights?
Ms. Belin. The ESA--there's nothing in the Tenth Circuit
decision that says the ESA overrides anybody's water rights. As
I said, it's a matter of having an effect on entities that
enter into Federal contracts.
Mrs. Wilson. Most of the tribes on the Rio Grande get their
water through the Middle Rio Grande project works. Can the
Bureau of Reclamation or the Middle Rio Grande Conservancy
District be ordered to go out there and turn off the ditches
for tribes?
Ms. Belin. That is not something we have ever asked for, in
fact, we have--
Mrs. Wilson. I'm asking you--you're a lawyer, you have been
a plaintiff a lot longer than I have been involved with this.
I'm asking what your view is. Does the Federal Government,
under these laws, have the right to go up and turn off the
tribes ditches?
Ms. Belin. The Federal Government has authority over the
MRGCD ditches. As to that subset of issues, how it affects the
Pueblos, I don't have an issue.
Mrs. Wilson. When you initially filed your lawsuit against
the United States, your initial filing said that we need 300
cubic feet per second of water at the volume of the conservancy
district, the river is dry now, and has been for weeks. And
your initial contention was that if we didn't have that, the
minnow would go extinct. They haven't had it for several weeks,
is the minnow extinct?
Ms. Belin. First of all, we didn't say that we were
following--all along we have been following the biological, the
opinions issued by the U.S. Fish and Wildlife Service. And at
that time the Fish and Wildlife Service was saying that there
needed to be continuous flows from Cochiti all the way down to
Elephant Butte. The Fish and Wildlife Service has evolved with
these opinions. I think that the minnow--
Mrs. Wilson. I think there is an important clarification.
You did not allege that without 300 cubic feet per second the
minnow would go extinct. You have never changed that?
Ms. Belin. No, we did not.
Mrs. Wilson. That's interesting. One final question. You
say in your written testimony that for most of the Tenth
Circuit's holding by a back room appropriation meetings, never
received any published or congressional debate, did not serve
the public's interest. Mr. Pearce, and I often remember, on
floor of the house in July there was submitted by the full
House of Representatives, and voted on the floor of the House.
Is the floor of the House the one you're referring to or are
you referring to other amendments?
Ms. Belin. Representative Wilson, first of all, I want to
say I do think that the minnow, by the way, based on the
current dryness, is heading toward extinction. But getting on
to that question, my understanding of that is that there was no
debate at all on that provision, that there was no opportunity
for review at the time of the minnow Committee review, no
hearings, no discussion.
Mrs. Wilson. Is it your view that a member of Congress
should never be allowed to offer an amendment and debate it on
the floor of the House and voted in the full view of the United
States of America?
Ms. Belin. Representative Wilson, no, that's not my view.
My view is, obviously these issues relating to the Endangered
Species Act and exceptions from the Endangered Species Act. And
potential extinction of species are highly controversial and
are issues of great public importance that really deserve a
full scrutiny through hearings and a full debate, and shouldn't
just been popped out without debate.
Mrs. Wilson. And they are better decided in Denver.
Thank you, Mr. Chairman.
The Chairman. I want to recognize Mr. Baca for additional
questions.
Mr. Baca. Thank you very much, Mr. Chairman. I guess one of
the questions for Belin, just to continue some of the questions
that were asked. The minnow's historic habitat used to run all
the way down the Rio Grande to the southern tip of Texas. Is
there any possibility of helping restore the minnow population
at downstream locations?
Ms. Belin. Representative Baca, certainly we have strongly
supported reestablishment of the minnow in other locations
outside the Middle Rio Grande, including down in the southern
area. We certainly hope that that process moves forward as
quickly as possible.
Mr. Baca. Thank you. Jessica, earlier in your document you
stated that it has been documented that the silvery minnow can
survive lower water levels in a dry season. How has your farm
been affected by the reduction of water available and what have
you been doing to--
Ms. Sanchez. Our farm, along with other farmers in this
valley, has been affected. Our crops have died. My family has
lost parts of our alfalfa and hay which we use in order to feed
our cattle. That is winter feed for us. Also, without having
the last cutting, due to the lack of water we are unable to
keep a stock amount of pasture where we would normally. Without
this pasture, that we've had a lack of, we have to buy new hay.
We also sell some of our alfalfa and some of our hay to
both the farmers and ranchers in the area. If we do not supply
them with their needs, then they have to go to an outside
source, costing more money needed to them because of shortage
of hay, because of the shortage of water. And also costing more
money to them because of transportation needed to go for the
distance to get this.
We have implemented new things like a national beef program
in order to gain more money on the cattle, instead of normally
when we go to the sales barn, to the market, we get a given
price for the animal per pound. In order to accommodate for
that and compensate for the loss in our cops and our fields for
the water, we are having to create a national meat market to
gain an added value price to that animal in order to compensate
for the money lost and put back into our farming operation to
continue on.
It is just taking a toll more than just financially,
economically. Whether we have the water or not, we still have
to pay the same amount of water taxes. So that's something that
we have to budget out, but we still don't have that money
coming back in. And we're not compensated for those water taxes
that we are paying.
It's like a domino effect, if we can't economically
participate in commerce because of the lack of our income,
then, therefore, the local commerce, the local operations that
are in this area which we help support, grocery stores and
other things, car dealerships, will also falter and die with
us.
Mr. Baca. Thank you, very much.
Governor Ortiz, how greatly will San Felipe water rights be
affected by the silvery minnow compared to other Pueblos?
Mr. Ortiz. Chairman, Congressman Baca, I will let my lead
counsel respond to that.
The Chairman. OK. Please identify yourself for the record.
Ms. Williams. My name is Susan Williams. I'm legal counsel
to the Pueblo of San Felipe. The Pueblo of San Felipe, along
with all the other Pueblos, are at great risk of the taking of
their water rights for the silvery minnow. All the Pueblos
support equal system restoration of all species and protection
of all species, but not at the expense, and in disregard water
of the senior Federal reserve water rights for these tribes.
These tribes have overlapping water rights. Members of
Congress, they have Federal reserved water rights with
aboriginal priority that predate all the state permits and the
rights to use water through the MRGCD. Now they have some water
rights through the MRGCD as well, but they're overlapping with
their preexisting Federal reserved water rights, and some of
their water rights are not covered by the MRGCD permits.
And that is why the Pueblos are concerned that their
storage in El Vado Reservoir is at risk, because none of the
riders specifically protect the Federal reserved water rights
for the tribes. The natural flow water rights of the tribes,
they're not in as much risk because there is no natural flow,
it's our water rights in El Vado that are the target of any
needs for the silvery minnow, and they may not be protected
through the Middle Rio Grande Conservancy District state
permits.
So if we want clarification in any riders that protect
water rights from a taking or use of the silvery minnow, to
specifically refer to the Federal reserve water rights and the
Pueblos to insure that our overlapping water, Federal and state
water rights, are protected along with everybody else in this
valley.
Mr. Baca. Thank you very much.
If I may ask one other additional question, Mr. Chairman.
This goes to Ms. Hillson. Of the potential available
solutions to preserve the silvery minnow, which solution would
benefit the City of Albuquerque the most economically?
Ms. Grevey Hillson. It's really a combination, but
certainly the overturning of the Tenth Circuit Court decision
is critical to the economic sustainability of Albuquerque. It's
meant, not just the actual loss of water, even if circumstances
made it that the water doesn't need to be taken, the perception
that that creates in the business community, both in
Albuquerque and the Middle Rio Grande and outside, is
completely countered to the concept of economic sustainability
and growth.
The idea of collaborating, collaboration to recover the
minnow while at the same time allowing present and future human
water use, is something that would greatly benefit the City of
Albuquerque. It has been taking part with great financial
contribution, and the income contributions of labor in the
Middle Rio Grande Endangered Species Act Collaborative Program
effort, and the city really feels that that is--well, I can't
speak on behalf of the city--the business community feels that
that is certainly an appropriate avenue to pursue;
collaboration that is hopefully taking place through the
Governors and Congress, and other examples. So it really is a
combination.
The riders that take the water off the table and protect
the users here in the valley, and certainly we would agree with
what Ms. Williams has stated, those are critical. We think that
the Endangered Species Act, the solution is that the Endangered
Species Act to protect the endangered species but not use it in
human species as the sacrificial lambs to do it, and there has
to be a balance.
Mr. Baca. Thank you.
The Chairman. Thank you.
Mr. Calvert.
Mr. Calvert. Thank you, Mr. Chairman. The Native Americans,
you need to relax because the Federal Government, we never
violated Native American rights.
One thing I want to point out in closing, that I would like
to work certainly with both the members here in New Mexico,
Senator Domenici and Senator Bingaman, to really help develop
additional water. Because, you know, in the final analysis,
this entire hearing is because of the stress on the
availability of water throughout the west. And I'm putting a
little appetizer here, we have a legislation where we're
proposing, both the Chairman and I, are supporting H.R. 2828
which, in effect, would develop additional water, either
through conservation, which is important, I heard that as much
as 11 acre feet per acre is being used on land. You know, we
ought to be able to help create better methods of irrigation
and get the same amount of production used by you by less water
per acre. That could create additional yield, that's one way of
conserving.
But reclamation of the communities here in Albuquerque and
throughout New Mexico, and throughout the west, is important.
Conveyance in a more efficient system. Because these are
common-sense solutions for the problem. And I just insure that
we can get everyone's support here to do that exactly. I know
Mr. Baca sponsored this bill also. I think we're going to have
a lot of support for this to move forward. Let's look for some
common-sense issues where we don't have to have these tragedies
that happen every day throughout the west.
Thank you, Mr. Chairman.
The Chairman. Mr. Pearce.
Mr. Pearce. Thank you, Mr. Chairman. I've got one, one
clarification for him and one question. But before I do that I
would like to give some thanks, thanks to the Belen
Consolidated Schools Superintendent Don Duran. Thanks to Belen
High School Principal Joe Trujillo; Vice Principal Audrey
Tucker. Their entire staff has worked diligently to make this
hearing, both possible, and for it to come off without flaw.
The City of Belen Mayor Ronnie Torres, and all of his staff,
have been extremely helpful. To Belen Chief of Police Mike
Chavez, and his entire staff. All of his officers have been
congenial and offering their services to us.
Socorro Consolidated Schools' Mr. Nick Fleming provided the
communications. His staff has been exceptional. My staff has
commented during the week about how well coordination among all
of these, these groups have gone.
Finally, Mr. Herman Tabet and the entire staff of the Belen
Holiday Inn Express have just been courteous and gracious to
the Committee Members who have stayed here and we appreciate
that.
My point of clarification, Mr. Chairman, is that, again, on
the subject that Congresswoman Wilson was addressing, the
information in the one testimony that declared a back room deal
to be worked on a rider; the person that led the debate team on
this subject had the amendment 1 week in advance and, in fact,
was invited to be a co-sponsor of that amendment, elected not
to debate against it. I think misinformation that's contained
in your testimony is unfortunate. I think it's what drives the
deep, deep split in the very controversial issues when we begin
to misuse information that's, and it's misleading.
My last question, again, and a very short answer, Mr.
D'Antonio, will be that from your testimony it appeared that we
were well on our way to collaborating in a solution that would
have insured the survival of the species of the silvery
minnows, and it would also have gone a long way to insuring the
survival of the species of the American farmer as they exist on
the Rio Grande Valley. The Corps of Engineers was also
participating in that, and it's my understanding that all of
those collaborations were set aside and were required to be set
aside by this court decision; is that true?
Mr. D'Antonio. Mr. Chairman, Congressman Pearce. I don't
know that they were set aside. I think that it was a group of
two different teams that were supposed to be working on this,
and I think one of them was a technical team and a
participation team. And I think the participation team hasn't
met for a period of time. But the collaboration is still
ongoing as far as I know, and I'm not sure I'm addressing the
question or not, but we're continuing to go forward with this
collaborative efforts in line with everything else that's going
on.
Mr. Pearce. And you've developed ways to keep the minnow
alive, alternative means to keep the minnow alive in finding
that it breeds in captivity very well?
Mr. D'Antonio. Yes, as a matter of fact, in the last
initial phase of refugium there were 600 adult minnows that
produced over 200,000 eggs, of which 90 percent were fertile.
And so we provided that initial result as a very good result in
terms of captivity and breeding of the species in captivity.
Mr. Pearce. OK. Thank you, Mr. Chairman. I know that we're
running up against the clock and I will yield now.
The Chairman. Congresswoman Wilson.
Mrs. Wilson. Thank you, Mr. Chairman, and thank you again
for holding this hearing, and thank everyone for coming, and
particularly those who testified.
I would ask the Chairman to accept the Rio Grande Silvery
Minnow versus John W. Keys, to support an emergency injunctive
relief dated September 4, 2002, and signed by Ms. Belin.
The Chairman. Without objection.
Mrs. Wilson. Thank you, Mr. Chairman. I don't have any
final questions. I do have one, I guess, final thing to say,
and that is that Americans have a role in the south and the
west, and our biggest challenge over the next 50 years will we
be to able to provide the water that is needed to sustain our
growth and our way of life. And that means we're going to have
to do some really innovative things, like water banking, and
conservation, and restoration, desalinization, and research and
development on the use of evaporation. Number one, water loss
in the State of New Mexico is evaporation.
Actually there are things that can be used to plan for our
future, we cannot allow the Tenth Circuit Court opinion to
stand. The first step has to be restoring, protecting New
Mexico's water rights, and the primacy of water law in the
state of New Mexico.
I think we're making steps toward that end. We're also
taking steps to protect the land we love. We are blessed to
live in the most beautiful state in the Nation and all of us
want to keep it that way. I think by working together we can do
so. We don't solve problems by spending millions of dollars on
lawyers and courts. We solve it by working together in a
collaborative process which restores balance, protecting the
land we love and the way of life.
Mr. Chairman, thank you so much for coming to New Mexico.
It's really a pleasure to have you here. Thank you.
The Chairman. Thank you. It was my pleasure to have the
opportunity to be here and to hear from our witnesses. We
received extremely valuable testimony, and as our, my effort
and the effort of the Committee has been to try to get members
of Congress outside of Washington and to bring them into areas
like this where the real problems are, and to actually hear
from people who have to deal with the rules and regulations and
the laws that are passed by Congress and implemented by the
Administration. I think it's well worthwhile for the members of
the Committee to have this opportunity.
I want to thank Congressman Pearce and Congresswoman Wilson
for their hospitality and for their insistence that we do bring
the Committee to New Mexico. And over the past several weeks
we've had a number of conversations and, about the need to
bring the Committee out here, and I was happy that we finally
had the opportunity to do that.
I want to especially thank Congressman Baca and Congressman
Calvert for making the effort to be here and to spend time away
from their districts. I would say their families, but since his
family is here it doesn't count, half his family. But in
conclusion, I'd say that I come from a district in California
that, amongst many, many other things, we are home to
endangered kangaroo rats, endangered frogs, endangered snakes,
endangered birds, endangered fish, endangered foxes, every
square inch of my district is habitat for one endangered
species or another.
And to listen to Congresswoman Wilson talk about the
future, I'll let you in on a little secret about the future. My
home town, the average price of a home has now hit $350,000.
The average price of homes in other cities in my district are
in excess of $650,000. The opportunity that my kids or my
grandkids are going to have to live in a community that my
family has been in for five generations doesn't look real good
right now. And as we look at, as Congressman Calvert said,
trying to put some common sense into the implementation of this
law, I hope that Congress is able to recognize what the real
impacts are on communities and to try to factor that into the
implementation of this law.
I want to thank the community for being here, for sharing
with us this beautiful place. And I'll tell you that because of
the limitation on time not everyone had the opportunity to
testify that wanted to. The hearing record will be held open
for 10 days to give everybody the opportunity to submit written
testimony that will be included as part of the hearing record.
If there is no further business before the Committee, I
want to thank the members of the Committee, I want to thank our
witnesses for making the effort to be here. And the Committee
stands adjourned.
[Whereupon, the Committee was adjourned.]
The following information was submitted for the record:
Central Arizona Water Conservation District,
Statement submitted for the record
Chavez, Hon. Martin J., Mayor, City of
Albuquerque, New Mexico, Statement submitted for the record
Godfrey, Liz, Great Plains Organizer, Endangered
Species Coalition, Blanco, New Mexico, Letter submitted for the
record
Harris, Steve, Executive Director, Rio Grande
Restoration, Statement submitted for the record
Madrid, Hon. Patricia A., Attorney General, State
of New Mexico, Letter submitted for the record
National Endangered Species Act Reform Coalition,
Washington, DC, Statement submitted for the record
Ortiz, Hon. Anthony, Governor, Pueblo of San
Felipe, Response to questions submitted for the record
Rio Grande Water Rights Authority, Statement
submitted for the record
Shah, Subhas, Chief Engineer, Middle Rio Grande
Conservancy District, Albuquerque, New Mexico, Statement
submitted for the record
Turner, Dr. William M., Trustee, Lion's Gate
Water, Statement submitted for the record
[A statement submitted for the record by Central Arizona
Water Conservation District follows:]
Statement submitted for the record by George Renner, President, Board
of Directors, Central Arizona Water Conservation District
Mr. Chairman and Members of the Committee, the Central Arizona
Water Conservation District (CAWCD) is pleased to offer the following
testimony regarding the Tenth Circuit Court of Appeals' ruling in the
Rio Grande Silvery Minnow case. While we understand that the chief
purpose of this hearing is to take testimony about the effects of the
decision on New Mexico, the case is of exceptional importance to CAWCD
and other water users throughout the arid West.
CAWCD is a multi-county water conservation district responsible for
managing Arizona's single largest renewable water supply B
approximately 1.5 million acre-feet of Arizona's annual share of
Colorado River water. CAWCD operates the Central Arizona Project (the
CAP).
The CAP was authorized by the 90th Congress of the United States
under the Colorado River Basin Project Act of 1968. The CAP is a multi-
purpose water resource development project consisting of a system of
aqueducts and pumping plants that lift water nearly 3,000 feet over a
distance of 336 miles from Lake Havasu on the Colorado River to the
project's terminus south of Tucson. The CAP was designed to deliver
Colorado River water to the central and southern portions of the state
for municipal, industrial, agricultural and Indian uses. The Bureau of
Reclamation (Reclamation) initiated project construction in 1973, and
the first water was delivered to the Phoenix metropolitan area in 1985.
The project's aqueduct system was declared complete in 1993. In 2000,
the CAP delivered for the first time its full normal year entitlement
of 1.5 million acre-feet, allowing Arizona to use its full Colorado
River apportionment of 2.8 million acre-feet.
CAWCD was created in 1971 for the specific purpose of contracting
with the United States for the delivery of the CAP water supplies and
the repayment of the reimbursable construction costs of the CAP
properly allocable to CAWCD. In 1972, CAWCD entered into a master
contract with Reclamation for delivery of Colorado River water and
repayment of CAP construction costs (the Master Contract). Under the
Master Contract, CAWCD is entitled to divert all Colorado River water
available for use within the State of Arizona under the terms of the
decree entered by the United States Supreme Court in Arizona v.
California, 376 U.S. 340 (1964), after satisfaction of senior and
certain co-equal priority uses. CAWCD's service area is comprised of
Maricopa, Pima and Pinal counties, encompassing roughly 80% of the
water users and taxpayers of the State of Arizona, including the
greater metropolitan areas of Phoenix and Tucson.
Recently, in the Silvery Minnow case, the Tenth Circuit Court of
Appeals ruled that the Endangered Species Act allows, indeed requires,
Reclamation to amend its water delivery contracts unilaterally and
reallocate contracted-for project water for the benefit of an
endangered fish B the Rio Grande Silvery Minnow.
This ruling threatens Reclamation water delivery projects
throughout the West. It suggests that the requirements of Reclamation
water delivery contracts may freely be ignored if the United States
finds a new use for the contracted-for water supplies. It sets an
extremely dangerous precedent, allowing, even requiring, that
Reclamation reduce deliveries of project water to those who have
contracted for it, and instead use that water for the benefit of
endangered fish and wildlife, even though the water delivery contracts
were entered into prior to the enactment of the Endangered Species Act
(ESA) and never contemplated use of the water supplies for endangered
species. The ruling allows Reclamation to lay claim to project water
supplies to benefit endangered species even though Reclamation has no
recognized right to the project water at issue. The ruling turns
Western water law on its head and injects intolerable uncertainty into
settled contractual expectations.
Although Reclamation's authority and responsibility in any given
case will vary according to applicable contracts and law, incorrect
resolution of the legal issues at stake in this case could impair the
reliability of water contracts throughout the West. The proper
resolution of the issues in this case is a matter of exceptional
importance to CAWCD and to all affected stakeholders in the arid West.
CAWCD has joined with other interested stakeholders in urging the full
Tenth Circuit to rehear and overturn the decision of the three-judge
panel. If the Court fails to do so, however, it is imperative that
Congress act to preserve existing water delivery contracts against this
unparalleled assault on their validity and enforceability. Our future
in the West depends upon it.
Thank you for considering this important issue.
______
[A statement submitted for the record by Hon. Martin J.
Chavez, Mayor, City of Albuquerque, New Mexico, follows:]
Statement of The Honorable Martin J. Chavez, Mayor,
City of Albuquerque, New Mexico
Welcome to New Mexico and thank you for the opportunity to speak
with you this morning. The City of Albuquerque is centrally located in
the Middle Rio Grande valley between the towering cliffs of the Sandia
Mountains and the volcano cones of the West Mesa. The Rio Grande,
surrounded by a verdant Bosque forest, flows through the central core
of our City. However, our more than 475,000 residents do not receive
their water directly from the river. Currently, the City's only source
of water is a large groundwater aquifer and last year the City pumped
approximately 106,000 acre-feet from deep wells. In 1994, the United
States Geological Survey (U.S.G.S.) published a report that completely
changed our understanding of the water situation in Albuquerque.
Previously, the City, State and other experts thought that the aquifer
was in direct connection with the Rio Grande and any ground water
withdrawals would be replenished by the river. The U.S.G.S. report
clearly showed that only half of the amount the City pumps from the
aquifer is being replenished causing a rapid lowering of the water
table underneath the City. Continued sole reliance on the aquifer would
lead to serious water shortages, water quality degradation and
ultimately land surface subsidence.
Albuquerque's Water Planning
In 1995 during my first term as Mayor, we started an aggressive
water conservation program to reduce our usage by 30% over ten years.
At the end of 2002, we had achieved a 26% reduction in overall usage
with pumping decreased to levels not seen for more than fifteen years.
Recently, we adopted an additional 10% reduction (or 40% overall
reduction as compared to 1995) as the new goal for our water
conservation program. Water conservation, however, is not enough to
reduce our pumping to sustainable levels. In 1997, the City adopted the
Water Resources Management Strategy to provide a sustainable supply to
2040 by transitioning from sole reliance on the groundwater aquifer to
renewable supplies. The City has three reuse and reclamation projects
to utilize non-potable industrial effluent, municipal effluent, surface
water and shallow ground water for irrigation and industrial uses
throughout the City. In addition to water conservation and reuse, the
most important aspect of the Strategy is the diversion and direct use
of our San Juan-Chama water for drinking water purposes.
The Drinking Water Project consists of the design and construction
for a new diversion on the Rio Grande, a new surface water treatment
plant, and 50 miles of transmission pipelines to integrate the surface
water with our existing ground water system. In addition, the City has
designed environmental features into the project to protect endangered
species including a fish passage structure and fish screens. We will be
restoring the Bosque and Rio Grande affected by the construction in
addition to a commitment to construct three projects over twenty years
to provide habitat for the silvery minnow. In addition, we are working
to remove all of the non-native species in the Bosque in the
Albuquerque reach over the next five years or sooner if we can obtain
federal and state funding assistance. The recent fires in the Bosque
clearly show that we must remove the non-native species and clear the
dead brush to avoid catastrophic fires next year and beyond. The total
cost of projects with the environmental enhancements was estimated at
$180 million in 1997. This cost is being paid for by our residents
through seven dedicated water rate increases. The actual cost of the
projects will most likely exceed $ 250 million when complete.
Albuquerque's San Juan-Chama Contract
The City's San Juan-Chama water is our only available surface water
supply and represents more than 70% of our supply when projected to
2040. Without the City's San Juan-Chama water, the City would be forced
to continue to rely on the depleting aquifer which will lead to serious
environmental consequences including lowering the groundwater table in
the Bosque adjacent to the river, increased arsenic and other salts in
the water supply, and ultimately land surface subsidence. The City
signed a contract in 1963 to provide 53,200 acre-feet of imported water
to the City in exchange for repayment of the capital with interest (and
interest during construction) and a proportional share of the annual
operation and maintenance for the project. Interestingly, Congress
would not allow the Secretary of Interior to begin construction of the
project until the City's repayment contract was signed and ratified by
the then City Commission.
In 1965, the City relinquished 5,000 acre-feet for the Cochiti
recreation pool. Since the construction was completed in 1971, the City
has invested approximately $50 million for the 48,200 acre-feet with
more than fifteen years remaining on the repayment obligation. The
City's contract for San Juan-Chama water is a perpetual contract giving
the City the right to use and dispose of 48,200 acre-feet per year as
long as the City is current on our payments. The City has fulfilled our
obligation to make the payments called for in the contract and have
never defaulted.
10th Circuit Court of Appeals Ruling
With the 10th Circuit Court of Appeals ruling, the City's San Juan-
Chama water is in jeopardy. In Rio Grande Silvery Minnow v. Keys,
various environmental groups alleged that the U.S. Bureau of
Reclamation, the U.S. Army Corps of Engineers and the U.S. Fish and
Wildlife Service have discretion to control the dams and waters of the
Rio Grande and had violated the Endangered Species Act by failing in
their consultations to consider utilizing San Juan-Chama and Middle Rio
Grande Project water for the minnow. The State of New Mexico intervened
in the case to oppose the concept that these federal agencies have
discretion to control or allocate the waters of the Rio Grande merely
because the federal government has constructed and operates dams which
store New Mexico's waters. The Middle Rio Grande Conservancy District,
representing the valley farmers, intervened alleging that the federal
government operates El Vado Reservoir for them and does not own the
reservoir or the water in it. The City intervened because the
environmentalists had included Heron and Abiquiu Reservoirs in their
list of Rio Grande basin dams which should be operated to protect the
minnow. Heron Reservoir is the storage facility for the San Juan-Chama
Project and Abiquiu Reservoir is where the City stores its delivered
allocations of San Juan-Chama water. The water delivered by the San
Juan-Chama Project is New Mexico's portion of the Colorado River. This
water has been imported under the continental divide into the Rio Chama
basin and is not native to the Rio Grande basin. The San Juan-Chama
Project water is Albuquerque's primary future water supply and using
San Juan-Chama water to supplement Rio Grande flows jeopardizes another
environmental program; the City's plans to use San Juan-Chama water for
drinking water so it can curtail groundwater pumping which is depleting
the aquifer.
The district court decided that Reclamation can reduce annual
contract deliveries to reallocate water to the minnow and can also use
San Juan-Chama water stored for future years' contract deliveries. The
San Juan-Chama Project water in Heron Reservoir cannot be used at the
discretion of the federal government to address Rio Grande endangered
species problems. Congress specifically created the project to provide
municipal water supplies and Reclamation's only authority is to
annually deliver the water stored for contractors. There is no support
in the Project Act or the water delivery contracts for the concept that
Reclamation can reduce the amount of imported Colorado water delivered
to the contractors if there is a drought downstream in the Rio Grande.
Similarly, Reclamation has no authority to deliver out of Heron
Reservoir more water than is specified for annual contract deliveries.
The amount of annual contract releases is based on the scientifically
determined sustainable yield of the project. The water banked in Heron
Reservoir for future years is not extra water and deliveries greater
than the sustainable yield amount almost guarantees that the project
will eventually dry up. The San Juan-Chama Project is uniquely designed
to perpetually deliver water and, because there is no federal authority
to alter its operation or reduce the required contract deliveries,
Reclamation did not have to consult on the effect of its discretionary
actions on endangered species.
In June of 2003, the Tenth Circuit affirmed the district court.
Judge Porfilio wrote the decision with Judge Seymour concurring and
Judge Kelly dissenting. Because of the implications of the decision,
all of the defending parties and ten Western states have petitioned to
have a full panel of all the Tenth Circuit Judges rehear the case. The
federal agencies, New Mexico entities and Western states are concerned
because the majority rejected Reclamation's, the City's and the
farmer's settled interpretation of their water delivery contracts and
found that certain water shortage provisions gave Reclamation
discretion to reallocate water. Similar water shortage provisions
appear in Reclamation contracts throughout the seventeen Reclamation
states and have always been understood to mean that when there is a
shortage of available water, Reclamation is not liable for apportioning
drought reduced deliveries. The provisions concern shortages in
upstream supply, and do not mention downstream needs or endangered
species. The majority construed the shortage provisions differently and
found that they authorize Reclamation to determine how much of the
water supply to make available. Hence, for the majority, Reclamation
has discretion to allocate water to the minnow and then deliver the
remaining available water. The majority does not address how
Reclamation can use water for endangered species without acquiring a
state water right.
Obviously, no Western state would agree that Reclamation is above
state water law and can unilaterally modify its contractual commitments
to deliver irrigation or municipal water stored in a Reclamation
project in order to provide that water to an endangered species. The
federal agencies also reject the discretion the majority found because
it implies that all federal natural resource contracts are subject to
unilateral alteration if the resource is claimed for an endangered
species. The United States properly argues that the ESA was not
intended to change its obligation to honor its contracts and, as the
dissent says, the majority decision renders the contracts somewhat
illusory.
The majority opinion seems to be based in part on the erroneous
notion that the Endangered Species Act provides independent authority
to protect endangered species. It is well-settled that the ESA is not a
source of new authority and merely directs the exercise of existing
federal authority in a manner which will not adversely affect
endangered species. Thus, the linchpin of an ESA consultation case
should be a discussion of the discretionary action about which the
federal agencies must consult. Because the San Juan-Chama Project Act
and the contracts implementing it were intended to secure a dependable
imported water supply for municipal, industrial and irrigation
purposes, fish and wildlife benefits are merely mentioned as incidental
to the primary purposes. Therefore, Reclamation is not assigned
discretion to determine the uses of the water and cannot assign water
to endangered species before it delivers available water. In fact, the
Tenth Circuit has previously interpreted the San Juan-Chama Act to
prohibit even a contractor from devoting Project water to other uses.
The majority justification for this departure from Tenth Circuit
precedent was three Ninth Circuit cases which found Reclamation
discretion because of completely different Congressional authorization
and contract status. The City is sorely disappointed in the Tenth
Circuit's ruling and intends to pursue its appeal while seeking
legislation which removes San Juan-Chama water from the list of Rio
Grande basin solutions for the minnow.
The Future
The City's goal is to establish once and for all that the imported
San Juan Chama water in Heron Reservoir is for the use by Albuquerque
citizens for drinking. If Albuquerque can switch to drinking the San
Juan Chama water, the aquifer will be able to replenish and the long-
term sustainability of the Bosque will be promoted. However, removing
the San Juan Chama water from the list of assets used to address
environmental problems in the Rio Grande Valley is not the City's only
goal. The City has always been a partner in Bosque restoration and
other riparian environmental projects. The City has a captive breeding
program to promote the recovery of the silvery minnow and is
participating in the construction of new habitat. The City intends to
continue with Bosque restoration and its efforts to breed and recover
the silvery minnow and its habitat. The City intends to work with the
environmental community in building the drinking water project
diversion structures in a way that promote fish recovery and Bosque
beauty. If this environmental recovery is not aggressively pursued, our
children will not know the Bosque as a living forest. This is a tragedy
that the City is committed to avoiding.
______
[A letter submitted for the record by Liz Godfrey, Great
Plains Organizer, Endangered Species Coalition, Blanco, New
Mexico, follows:]
Statement submitted for the record by Liz Godfrey, Great Plains
Organizer, Endangered Species Coalition
Thank you for the opportunity to submit written testimony for the
record in response to the Committee on Resource's field hearing on
``The Silvery Minnow's Impact on New Mexico.''
The witnesses invited by the Committee were greatly slanted toward
those opposed to protections for the endangered Rio Grande silvery
minnow. We commend Ms. Aletta Belin, New Mexico Counsel for Western
Resources Advocates, for her testimony.
The Endangered Species Coalition supports a ``made-in-New Mexico,''
long term solution to protect the silvery minnow, the Rio Grande and
future generations of New Mexicans. After years of over-allocation of
water resources in the Rio Grande watershed and dry summers, the river
has run dry. The Rio Grande is home to the last remaining populations
of the endangered silvery minnow. The silvery minnow is the proverbial
canary in the coal mine for the Rio Grande ecosystem. It is a symptom
and symbol of a dying river. Because dams and reservoirs have been
built throughout the river system, the natural flow has been altered.
Backwater pools no longer form which once provided water and shelter
for the minnows in dry years. Now if the river runs dry, the minnow
will die--there is no longer a safe haven for the minnow to retreat to.
Due to this dire situation, the courts ruled earlier this year to allow
water allocation to parties to be altered in order to maintain adequate
flow in the Rio Grande for the survival of the minnow.
The Rio Grande is typical of western water issues--too much demand
and too little water. Rather than continue to only deal with such
situations when a crisis is at hand, we must come together to develop
long-term, cooperative solutions for all species, human and non-human
alike.
Protecting the entire Rio Grande. The court decision does
not just prevent the extinction of the silvery minnow, one of New
Mexico's last native fish species. It also preserves the entire
heritage and natural splendor of the Rio Grande. The vitality and life
giving properties of this amazing river provide the backbone to both
New Mexico's history and its future.
What is right about the ESA. Many in politics and the
media have called this an example of what is wrong with the Endangered
Species Act. Quite the contrary, this is what is right with the ESA.
The Act has prevented the extinction of one of New Mexico's last native
fish species and in doing so, it will prevent the continued decimation
of the entire Rio Grande ecosystem. The Endangered Species Act does not
need to be reformed.
The decision does not ``take water from the mouths of our
children.'' On the contrary, the Tenth Circuit opinion doesn't say that
all San Juan-Chama Project water can be used--indeed the law requires
that a ``reasonable amount'' of the Project's water be delivered to the
contractors each year, which is exactly what conservationists have
always argued to the courts
INCREASED RIVER FLOWS HELP THE ECONOMY
A recent study by Professors Frank A. Ward, New Mexico State
University, and James F. Booker, Siena College, showed that increasing
flows in the Rio Grande for the silvery minnow will have a positive
economic impact on New Mexico. ``Economic benefits to New Mexico
agriculture were estimated at $68,000 per year.'' Please see Appendix A
for the full study.
WATER CONSERVATION AND THE CITY OF ALBUQUERQUE
A portion of the discussion at the September 6th hearing centered
on the need for the City of Albuquerque and its businesses to have
``certainty'' about its future water resources. Blame has been cast on
the endangered Rio Grande silvery minnow for this lack of
``certainty,'' however, much of the blame lies on the City itself.
In 1995, the Albuquerque City Council enacted legislation that set
a conservation target of 175 gallons per capita per day (gpcd), which
constituted a 30% reduction from the 250 gpcd that was consumed in
1994. This goal was to be achieved by 2004. Currently, the City's water
consumption still averages close to 200 gpcd (197 gpcd is the latest
figure). It is clear the City will not be able to achieve the target by
next year.
The Administration claims that Albuquerque has achieved a 30%
reduction in its overall water use. This is based on a per-account
methodology (comparison of the average account use for each customer
class between 1994 and today), which is inherently biased. Average
household size is declining, at least 20% over the last 30 years. Small
businesses are increasing over larger commercial enterprises. So there
is a natural decline in per account averages, regardless of any water
conservation measures. The City is taking advantage of these natural
declines to claim conservation success that is greatly exaggerated.
While the Administration claims that the ``per capita'' methodology
is flawed because of errors in census data, at least the census data is
randomly biased, not biased towards a particular outcome. Furthermore,
New Mexico ranked very high on the scale of census reliability (higher
than most other southwestern states), and yet other southwestern cities
are still using the per capita methodology. So the City has less reason
than others to abandon the per capita methodology, and yet it has
embraced an incredibly biased method that artificially improves our
water conservation success. A more cynical individual might hypothesize
that the City is eager to appear as if it is achieving its conservation
targets--a prerequisite for securing permits from the Office of the
State Engineer for further diversions (like the San Juan-Chama
project).
Unaccounted-for-Water:
Unaccounted-for-water is water lost to the system between
production and billing. Although it does include water for fire control
and other beneficial uses, it mostly consists of leakage from the
system through pipeline breakages, etc. Albuquerque's rate of
unaccounted-for-water is high, particularly for the desert southwest.
It is also increasing, from 11.5% in 1994 to 12.3% in 2001. By
comparison, a sampling of other southwestern cities' UAW rates for 2001
ranged from roughly 3% in Mesa, AZ, to 12.0% in Tucson. However, Tucson
has a significantly lower per capita water consumption than Albuquerque
(in 2001, 170 gpcd vs. 205 gpcd for Albuquerque), so the absolute value
of unaccounted-for-water in Tucson is actually less than the percentage
would otherwise indicate.
Some disturbing facts about water use in the City of Albuquerque:
Although most residents in Albuquerque have worked very hard to
voluntarily conserve, there is a minority of city residents who have
actually increased their use over the past 10 years (29% of residents
have increased their use by an average of MORE than 40%). However, the
Administration does not support any new mandatory water conservation
measures, only voluntary restrictions and incentive-based programs.
This places a disproportionate degree of responsibility on those who
have already demonstrated their willingness to conserve, and ignoring
those users who are wasting water that could benefit the ecosystem and
future generations.
Environmental Protection and the River
There has also been a lot of misinformation spread about efforts to
dedicate our drinking water to the river, and the myth of ``stealing
water from the mouths of our children'' to save the silvery minnow.
However:
The San Juan-Chama water is not for drinking. At least
99% of it is not. The largest use of San Juan-Chama water will be for
watering lawns and golf courses. Drinking water will be less than 1% of
total use. So instead of talking about ``taking water from the mouths
of our children,'' we should be talking about ``taking water from the
14th fairway and the vast expanse of residential turfgrass that gets
walked on once a year during the annual family BBQ''.
People DO think that the river and the Bosque are
important. In a recent poll conducted by the UNM Institute for Public
Policy, water for the river and riparian areas ranked 2nd only to water
for drinking and bathing. Water for residential lawns and gardens
ranked dead last (6th). So we're kidding ourselves if we think we're
representing Albuquerqueans' desires by protecting lawns and golf
courses while letting the river run dry and the Bosque die.
Protection of the river, the Bosque and general
environmental values are a fundamental policy listed in the City's
Water Resources Management Strategy. Recognition of this fact does not
change existing policy in any manner whatsoever. In fact, return flows
to the Rio Grande to meet environmental needs are listed as a key
consideration.
ALL PARTIES MUST WORK TOGETHER FOR LONG TERM SOLUTIONS
Rather than continue the brinkmanship by all parties, concerned
leaders from across New Mexico must come together to develop a long-
term water plan that will benefit every being. There are many things
that can be done at the local and federal level that can help the
situation without having negative consequences to other legislation and
ongoing cooperative efforts. These include:
More efficient water conservation and management by both
rural and urban users. The City of Albuquerque is one of the highest
municipal-water users in the West--205 gallon per capita per day (gpcd)
compared to 140-165 gpcd in Santa Fe, El Paso, and Tucson.
Better water conservation and management practices by
both rural and urban users. For example, the Middle Rio Grande
Conservancy District (MRGCD) diverts two or more times as much water as
similar irrigation districts in New Mexico. Converting many of the
farms in the Middle Rio Grande Conservancy District from flood
irrigation to sprinkler or drip irrigation systems would greatly reduce
MRGCD's demand and the amount of water it wastes. Water thus made
available could then be left in the river for the minnow.
Federal and state partnerships for problem solving and
long term planning.
Establish a voluntary water leasing program where water
rights holders could not use their water in dry years in return for
compensation using federal dollars. This program would help to ensure
adequate water flows in the river--while allowing users to keep their
water rights while not using their allocations in times of drought.
Restoration of river and bosque habitat, including the
removal of non-native vegetation like salt cedar.
Establishment of an additional viable population of
silvery minnows in a reach of the Rio Grande or the Pecos River in
addition to the population in the Middle Rio Grande therefore creating
a second safety net in dry years. Once the minnow is reestablished in
multiple locations, it will be able to survive temporary river drying
in some stretches of the river.
Establish a permanent pool of water for endangered
species. This water, created from surplus supply, new conservation
measures, and voluntarily leased allocations, may be stored upstream
for use in times of emergency to sustain adequate flows in certain
stretches of the Rio Grande.
THE ENDANGERED SPECIES ACT IS NOT BROKEN
We oppose any efforts to weaken protections for our nation's
threatened and endangered species. The Endangered Species Act of 1973
is one of our nation's most popular and effective environmental laws.
In a national survey of people from around the country conducted in
2002 by the Biodiversity Project, over three quarters of Americans
agreed that, ``We should maintain a strong Endangered Species Act
because protecting so many different kinds of plants and animals is
important to the environment and the economy.''
The Endangered Species Coalition speaks on endangered species
issues for about 400 conservation, religious, scientific, business,
sporting and humane groups around the country. We request that these
comments be submitted into the official congressional record for the
hearing. We look forward to working with the Committee on Resources on
these important natural resource management issues.
NOTE: An attachment to Ms. Godfrey's letter has been retained in
the Committee's official files.
______
[A statement submitted for the record by Steve Harris,
Executive Director, Rio Grande Restoration, follows:]
Statement of Steve Harris, Executive Director, Rio Grande Restoration
Mr. Chairman: I am Steve Harris, the Director of Rio Grande
Restoration, a river protection group, based in Pilar, New Mexico. I am
also a participant in the Middle Rio Grande ESA Collaborative Program,
which is a broad-based collaborative of federal, state, local
governments and private interests. This Program is working diligently
to recover endangered minnow and flycatcher species in this valley. We
have received the support of the federal government in this effort, for
which we are grateful to Congress and especially to Senators Domenici
and Bingman and Representative Wilson. The Program expects to have
drafted a Long Term Plan for conservation of the species by the end of
this year, in accordance with
The Rio Grande problem is not an easy one. Like so many Western
river basins, we have an excess of claims to the river and a limited
and wildly variable supply of water. It is clear that the entire river
ecosystem has suffered and that our ESA crisis is a reflection of its
continued deterioration. Clearly, fish need water and they have not
gotten sufficient flows in the past to support them. So, we are working
on the complexities of altering river management to provide more
beneficial timing of flows and to acquire supplemental water to release
into the river.
We have concluded that this will require substantial changes in the
way we allocate water, not the least of which is the necessity of
managing irrigation water in the most conservative way possible, with
efficiency, austerity and most critically, close scheduling of water
deliveries to farms.
Our experience leads us to the conclusion that we can provide the
river with supplemental flows, without severe economic dislocations, by
carefully crafting a program of water leasing from water users willing
and able to forbear their use of water for short periods.
Over the past month, the parties have been negotiating a
comprehensive solution. These talks have now been suspended pending the
consideration of House and Senate riders, which take San-Juan Chama
interbasin water off the table.
What gives this local effort its tremendous sense of urgency is the
likelihood that in year 2006, there will be virtually no supplemental
water available to meet the flow requirements of 2003 Biological
Opinion. If we do not respond appropriately, the year 2006 will witness
our biggest ESA-related crisis yet.
Since 1996, the greatest challenge facing the dozen or more parties
who are attempting to recover the Rio Grande silvery minnow, improve
its habitat or attain ESA coverage for their projects has been how to
acquire water to supplement the flows of the Rio Grande. Each dry year
( which includes 6 of the past 8) has seen the group ``pull a rabbit
out of the hat,'' cobbling together leased San-Juan Chama water,
negotiating difficult and complex deals with the Rio Grande Compact
Commission and conducting daily phone calls to administer a
supplemental water program that will satisfy our various needs for ESA
compliance and contribute to the survival of a beleaguered Rio Grande
The City of Albuquerque has leased to the federal government over
300,000 acre feet of its SJC water in seven years. Those deals are a
thing of the past. As the City has made clear: in the future they will
use that water for a new drinking water project, which they plan to
have in place by 2006.
The minnow has survived, year to year, by such arrangements as:
An agreed order in 2000 provided nearly 40,000 acre feet
of supplemental water and a whopping 150,000 acre feet of leveraged
leases;
A Conservation Water Agreement in 2001 provided an
additional 50,000 acre feet total in 2001 and 2002; and
An emergency deal involving relinquishment of New
Mexico's Rio Grande Compact credits has provided 30,000 acre feet this
year, is being counted on to provide 30,000 af in 2004 and 20-25 kaf in
2005.
At the end of 2005, City water will be off the table, New Mexico's
Compact credit will be exhausted and the anti-storage provision in
Article 7 of the Compact will prevent any further storage and release
deals.
The supplemental water ``rabbit'' is becoming increasingly
emaciated. In 2006, only the San Juan and Jicarilla SJ-C water can be
expected to be available (some 10,000 acre feet, total) and continued
drought in the San Juan basin over the next 2 years would place even
that source in jeopardy. Our alternatives at that point are faint
hopes: either draconian (taking of City water, shutting down the entire
MRGCD operation) or nonexistent, unless a deal can be struck and soon.
It is not hyperbole to say that this is formula for a train wreck and
the unresolvable crisis will occur during the Richardson
Administration.
Surely Congress and the Governor recognize that this is the likely
scenario. Our leadership must realize that even if irrigation
efficiencies and forbearance proceed on the most rapid schedule
imaginable, the water may come too late. Suspending negotiations at
this point, even for 30 days, increases the likelihood of failure. This
scenario has been anticipated since 1996 and the future scenario cannot
now be denied. All these earnest parties, Interstate Stream Commission,
City of Albuquerque, Conservancy District, Bureau of Reclamation, the
plaintiffs and perhaps the Congress itself, will be drawn into a
firestorm in which everyone will be badly burned
This is not a time to suspend negotiations that may, perhaps,
resolve this critical issue among these parties. The intent and
language of the Domenici and Wilson riders are well-known. In
themselves, they do not solve the underlying challenge of a dry Rio
Grande. In reducing the incentive to some parties to stay at the table
they are actually unhelpful. Combined with the Bureau of Reclamation's
expressed desire for more time to consider what the parties have put
forward, they may actually scuttle the quest for a local solution. I
hope not.
The final fly in the ointment is the issue of the availability of
federal money to assist in implementing changes the parties might agree
to. I submit that, while money alone will not solve any western water
problem, the lack of money will surely preclude a solution.
Over the next 10 years, leases of water rights will require some
$30 million and creating conservation in irrigation some $50 million
more. This funding will tend to be front end loaded. Our economically
disadvantaged state can probably be persuaded to find a quarter of this
amount The assistance of New Mexico's delegation and of this Committee
will critical if we are to avert the looming train wreck.
______
[A letter submitted for the record by Hon. Patricia A.
Madrid, Attorney General, State of New Mexico, follows:]
[GRAPHIC] [TIFF OMITTED] T9218.008
NOTE: The brief attached to Attorney General Madrid's
letter submitted on behalf of the State of New Mexico to the
U.S. Court of Appeals for the Tenth Circuit has been retained
in the Committee's official files.
[A statement submitted for the record by the National
Endangered Species Act Reform Coalition, Washington, D.C.,
follows:]
Statement of the National Endangered Species Act Reform Coalition
1
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\1\ NESARC is a broad-based coalition of over 100 member
organizations, representing millions of individuals across the United
States that is dedicated to bringing balance back to the application of
the Endangered Species Act (ESA). Our membership includes farmers and
ranchers, rural irrigators, cities, counties, electric utilities,
commercial businesses and many other individuals and organizations from
all walks of life that are directly affected by the ESA.
---------------------------------------------------------------------------
The National Endangered Species Act Reform Coalition (NESARC) is
deeply concerned about the effect of the Silvery Minnow decision and
believes that Congress must take action not only to resolve the
conflict created in the Rio Grande water allocation controversy, but
also to avoid similar future conflicts. Our members are concerned about
the effect of this decision on the sanctity of contracts with federal
agencies and the reasonable expectations for parties holding such
contracts, the de-stabilizing effect of such unilateral reallocation of
water supplies on a community's ability to plan for long term water
supply needs, and the continued failure to recognize the enormous
financial and societal costs that businesses, state and local
governments, and individual citizens are being forced to bear to
implement federal measures taken to protect threatened and endangered
species.
NESARC members believe that all necessary actions must be taken to
override the Tenth Circuit Court of Appeals decision in the case of Rio
Grande Silvery Minnow, et al. v. Keys, No. 02-2254 (10th Cir. June 12,
2003). This decision ruled that the Bureau of Reclamation (Bureau) has
``discretion'' to unilaterally disavow water delivery contracts with
irrigators and other water users in order to provide that water for the
benefit of the silvery minnow, a species listed as endangered under the
federal Endangered Species Act (ESA). Further, the court held that the
Bureau must use water acquired from a inter-basin transfer for the
benefit of the minnow. This decision mandates that a federal agency
alter the natural habitat of a species and places the perceived needs
of the silvery minnow over human needs.
As the House Resources Committee considers legislative options to
address this matter, NESARC urges the Committee to address the
underlying problems in the ESA that contributed to the Silvery Minnow
decision. What is happening to the citizens and communities of New
Mexico as a result of the Silvery Minnow decision is not an isolated
case. We need ESA reform that not only ensures that the federal
government lives up to its existing commitments to provide water to the
citizens of New Mexico but also protects citizens and communities
throughout the United States from having the ESA used to unilaterally
reallocate resources--without respect to the effect of such actions on
communities, businesses, and human needs.
If allowed to stand, the Silvery Minnow decision would destroy the
contractual relationships between the Bureau and the water users they
serve. The decision also would usurp, throughout the West, the States'
role in allocating water rights. By entering into contracts with the
Bureau, water users expect a reliable source of scarce water resources.
Water users have a right to expect that the Bureau will honor these
contractual obligations.
NESARC members are greatly concerned with the court's decision to
reallocate an inter-basin transfer intended for the citizens of the
City of Albuquerque to provide flow augmentation for the silvery
minnow. Inter-basin transfers of water are typical in the West as a
means to transfer scarce resources from areas of surplus to areas of
need. Such transfers are essential if the needs of water users in the
arid West are to be met. If inter-basin water can be confiscated and
unilaterally reallocated from state water right holders to serve a
federal obligation to augment flows in a river system that has solely
acted as a delivery channel for the inter-basin transfer, as the
majority opinion holds, inter-basin transfers will themselves become
endangered.
While this decision involved specific operations by the Bureau,
NESARC also is concerned that this decision could have serious
repercussions for parties holding federal permits, leases or contracts
involving the use of federal lands. In its broadest terms, the Tenth
Circuit's use of the ``unmistakability'' doctrine could allow the
modification, if not complete abrogation, of existing federal permits,
leases and/or contracts. NESARC has long maintained that the ESA, as
interpreted by the courts, has lost its equilibrium with the scales
tipped in favor of taking actions for the perceived benefit of listed
species without regard to the adverse consequences to the communities
and individuals affected. Without further action to reverse this
decision, the City of Albuquerque will be joined by more communities
and businesses in facing similarly unbalanced and harmful actions under
the current, unrefined and overly-broad Section 7 consultation process.
NESARC does not believe that the ESA, and Section 7 in particular,
was intended to apply the way the majority opinion has interpreted it.
The dissenting opinion in Silvery Minnow expressed it best: ``Under the
court's reasoning the ESA, like Frankenstein, despite the good
intentions of its creators, has become a monster.''
______
[GRAPHIC] [TIFF OMITTED] T9218.007
[The response to questions submitted for the record by The
Honorable Anthony Ortiz, Governor, Pueblo of San Felipe,
follows:]
February 5, 2004
VIA FACSIMILE: (202) 226-6953
The Honorable Richard Pombo
Chairman
Committee on Resources
Subcommittee on Water and Power
1522 Longworth H.O.B
Washington, DC, 20515
Re: LFollow-up Questions: House Committee on Resources Oversight Field
Hearings on the Silvery Minnow
Dear Chairman Pombo:
Thank you for the opportunity to testify at your Committee's field
hearing in Belen. I write to respond to the two questions you presented
to me in your letter dated September 5, 2003. As general background in
response to the questions, I enclose a position paper the Pueblo has
sent to congressional members. See Exhibit A. This paper is in support
of the Pueblo's request that the senior time immemorial Pueblo water
rights be included specifically in any legislative protections extended
to other junior water rights holders in New Mexico regarding the
endangered silvery minnow.
With respect to the Committee's questions and the Pueblo of San
Felipe's response to these questions:
Question 1: The House-passed Fiscal Year 2004 Energy and Water
Development Appropriations bill includes a provision that would
prohibit the release of water from the San Juan Chama Project or Middle
Rio Grande Project for the purpose of complying with the Endangered
Species Act. What impact would the provision, if enacted, have on the
Pueblos?
Answer: If enacted, the provision would expose the Pueblo's senior
federal reserved water rights to increased risk of being taken without
Pueblo permission for silvery minnow purposes. The Pueblo receives some
water from the Middle Rio Grande Project (which Project receives some
San Juan Chama contract water),and also pursuant to the Pueblo's senior
federal water rights to Rio Grande waters and related storage in El
Vado Reservoir. If Congress prohibits the release of water from the San
Juan Chama Project or the Middle Rio Grande Project for the purpose of
complying with the Endangered Species Act, little water exists in the
Rio Grande System other than the Pueblos' senior water rights. This is
water the Pueblos need for irrigation of lands they have farmed since
time immemorial, and for other purposes. The Department of the Interior
has advised us that it may have no choice but to use Pueblo water for
the endangered silvery minnow if Congress eliminates San Juan Chama or
Middle Rio Grande Project water as a water source for the minnow. This
result would be unfair and is inconsistent with the United States trust
responsibility to protect the Pueblo's federal water rights.
Question 2: Are the Pueblo's full participants in water management
and planning activities in the Middle Rio Grande Basin?
Answer: The Pueblos do not waste water. We value water and the
entire ecosystem. The Pueblo of San Felipe manages the lands and water
of its reservation, including the Rio Grande River, to ensure these
resources are available for future generations. The Pueblo is working
with the United States, the State of New Mexico, and local governments
to restore and protect the Rio Grande river and its surrounding
habitat.
Significantly, several of the Middle Rio Grande Pueblos were
exempted from the federal silvery minnow critical habitat designation
because the United States Fish & Wildlife Service recognized the Pueblo
management plans and practices are superior to any that could be
established as part of a federal habitat designation. Pueblo of San
Felipe staff has participated in numerous meetings and activities of
the Middle Rio Grande Endangered Species Act Collaborative Program, and
many other river and habitat restoration initiatives. And, importantly,
San Felipe representatives are taking the lead on appropriate Pueblo
and Tribal provisions in the state water plan.
The Pueblo of San Felipe is also working hard to assess its federal
water rights claims so that we are prepared to participate in a
comprehensive water rights solution that also benefits the minnow. The
Pueblo has little resources of its own to devote to this effort. The
Pueblo has sought federal funding for legal and technical assistance to
finalize its water claim. It is absolutely critical that the Pueblo
receive the federal funding it has requested. The funding is necessary
for the Pueblo to continue our substantial efforts in planning and
management activities, including the development of a comprehensive
settlement to resolve our water rights. This type of resolution will
provide a much greater level of certainty for all of the junior water
users that also want to plan and manage their junior water rights.
Thank you again for you interest in our water rights. Please let me
know if you need anything further from the Pueblo.
Sincerely,
Anthony Ortiz, Governor, Pueblo of San Felipe
cc: Representative Heather Wilson
Representative Tom Udall
Representative Steven Pierce
Senator Pete V. Domenici
Senator Jeff Bingaman
Enclosure:
______
Pueblo of San Felipe
Silvery Minnow Rider
Position Paper
October 1, 2003
Pueblos have federal rights to the water of the Rio
Grande with a time immemorial priority for irrigation, in-stream flows,
and other needs of their homeland for the present and future
generations.
Over twenty years ago the Pueblos negotiated the right to
store part of Pueblo water in El Vado Reservoir.
The City of Albuquerque (and other municipalities with
San Juan Chama delivery contracts) and the Middle Rio Grande
Conservancy District (``MRGCD'') also store water in El Vado Reservoir
and other reservoirs.
As of this date, the only water available for release
into the Rio Grande is that water stored in El Vado Reservoir and other
reservoirs.
Releases of water from El Vado and other reservoirs are
necessary to restore the flow of the Rio Grande to a level that will
ensure survival of the silvery minnow, in accordance with the
Endangered Species Act.
The United States Court of Appeals for the Tenth Circuit
has ruled that El Vado and other reservoir water stored for Albuquerque
and MRGCD must be released in accordance with the needs of the silvery
minnow. The Pueblos' water rights are not at issue in this litigation.
Senator Domenici and Representative Wilson have each
introduced language to protect Albuquerque and MRGCD from having their
El Vado water taken for minnow purposes without their consent.
The Middle Rio Grande Pueblos also need protection of
their El Vado water storage and other senior water rights to ensure
that such water is not taken for minnow purposes without the consent of
the Pueblos.
If the Pueblos are not included in the protective riders,
the Pueblo water in El Vado Reservoir and other Pueblo water rights
will be at great risk.
The Pueblo water rights are senior to the storage and
other water rights of Albuquerque and MRGCD.
It is unfair to protect the junior water rights holders,
but leave the most senior water rights holders unprotected and at risk.
For this reason, the Pueblo of San Felipe respectfully
requests to be included in the protective riders.
Additionally, the Pueblo strongly believes that no
permanent ``legislative fix'' should be passed as an appropriations
rider until after hearings are held to determine the legal and
practical effects of the proposed rider on the complex array of federal
and New Mexico state water rights and resources.
If the rider(s) move forward without hearings, please add
the following language to protect the Pueblo water rights along with
the other (more junior) water rights already protected:
The Secretary of the Interior is prohibited from obligating
funds or exercising discretion, if any, to prevent, reduce, or
restrict storage, releases, diversions, or uses of Rio Grande
Basin water by or for the benefit of any of the six Middle Rio
Grande Pueblos (Cochiti, Santo Domingo, San Felipe, Santa Ana,
Sandia and Isleta) in order to meet the requirements of Section
7 of the Endangered Species Act (16 U.S.C. Sec. 1536).
______
[A statement submitted for the record by the Rio Grande
Water Rights Authority, follows:]
Statement submitted for the record by the
Rio Grande Water Rights Association
In New Mexico, a number of plans have been advanced to provide
water for the preservation of the silvery minnow.
Nearly all such plans share a common fallacy: that agricultural
irrigators in the Middle Rio Grande Valley can achieve great
efficiencies at low cost and with scant impact on current crop
production, existing riparian habitat or aquifer recharge. The fallacy
continues that these efficiencies will allow water to be taken from the
irrigators to serve the minnow.
The thought is interesting; unfortunately, when the facts are
known, it is no more than a fantasy based on flawed reasoning and
misinformation.
The mistake: 11 acre-feet
Central to the fallacy is the mistaken notion that irrigators in
the Middle Rio Grande Valley are taking and using 11 acre-feet of water
per acre that is irrigated.
If this were true, much of the Middle Rio Grande Valley would be
laboring under flood conditions the better part of the year. Houses,
schools, buildings and roads would be swamped. Crops, rather than being
parched, would literally be drowning in water.
As we know, this isn't happening. How did the misunderstanding
arise? What are the facts?
The real number: 3.8 acre-feet
2002 is the most recent year for which we have complete information
on irrigation in the Middle Rio Grande Valley.
The Middle Rio Grande Conservancy District (MRGCD) is the body that
administrates the irrigation system for the area, which stretches from
Cochiti Dam on the north to the north boundary of Bosque del Apache on
the south.
According to MRGCD gages that yield an accurate measurement of
water used in its system, irrigators in the Middle Rio Grande Valley in
2002 used 268,000 acre-feet of water for 70,000 acres, or only 3.8
acre-feet per acre irrigated.
Understanding the numbers
Understanding the basis for the 3.8 acre-feet--and the 11 acre-
feet--requires a rudimentary understanding of how the irrigation system
works.
The MRGCD irrigation system is essentially a three-step system:
1. It diverts water from the river;
2. It delivers the water to the irrigation canals, ditches and
fields; and, then,
3. It returns the water that isn't used to the river.
The water diverted in step 1 is called the gross diversion. The
water returned in step 3 is called the return flow. When we subtract
the return flow from the gross diversion, we arrive at the amount of
water in step 2, the net diversion. That is:
gross diversion -- return flow = net diversion.
The net diversion is the amount actually used by the irrigation
system.
The MRGCD operates four diversion/return flow divisions. For all
divisions, in 2002, as recorded by the MRGCD's gages, the gross
diversion for the Middle Rio Grande Valley totaled 319,407 acre-feet of
water, and return flow totaled approximately 60,000 acre-feet.
Therefore, the net diversion, the amount actually used by the
irrigation system, totaled about 268,000 acre-feet of water. Given the
70,000 acres irrigated, this equates to approximately 3.8 acre-feet of
water per acre.
Correcting the Fallacy
A former Office of the State Engineer official had, at some time,
announced that the MRGCD ``diverted'' about 11 acre-feet of water per
acre irrigated. Unfortunately, the OSE official was using the number
for the gross diversion of some past year. It was, if you will, a
simple bookkeeping error. But the number was dramatic and it gave rise
to hopes that ``new'' water could be found through simply improving
efficiencies in the MRGCD's irrigation system.
Efficiencies and impact
The real numbers tell a different story about efficiencies and
environmental impact, and suggest that more caution be taken in seeking
efficiencies in the MRGCD irrigation system.
In 2002, the water used by the MRGCD irrigators went to crops,
riparian habitat and aquifer recharge. The MRGCD estimates consumption
this way:
Crops consumed approximately 150,000 acre-feet;
Riparian habitat (trees and other vegetation along the
1,238 miles of MRGCD waterways) consumed approximately 11,000 acre-
feet; and,
Aquifer recharge consumed 47,000 acre-feet.
Crop Irrigation: Already Efficient
According to irrigation engineers, efficiency of crop irrigation in
the Middle Rio Grande Valley can be mathematically expressed as a
ratio:
water consumed by crops divided by net water diverted; or,
150,000 acre-feet divided by 268,000 acre-feet; or,
150,000 divided by 268,000 = .559 or .56.
This means that the MRGCD is 56% efficient.
In 1995, the New Mexico Office of the State Engineer reported that
most irrigation systems in the state were about 50% to 55% efficient.
At 56% efficiency, the Middle Rio Grande irrigators are at the high end
of the efficiency range for irrigation systems in New Mexico.
Therefore, suggesting that huge efficiencies can be reasonably achieved
in crop irrigation may be misleading, especially if current crop
production is maintained.
Riparian Habitat: Efficiency vs. Environment
The 1,238 miles of waterways that comprise the MRGCD irrigation
system include delivery canals, return-flow outfalls and the Rio Grande
itself.
These return-flow outfalls are generally unlined and the consequent
saturation of the surrounding earth has fostered a riparian habitat,
which is better known as the bosque.
In simple terms, this is an area where efficiencies can be gained.
Canals and return-flow outfalls and, perhaps, even sections of the
river can be lined with concrete. This would prevent seepage into the
earth.
However, it would also destroy the bosque, which is host to a
variety of plant and animal species. Consequently, any thought of the
potential benefit to efficiencies has to consider both the enormous
dollar cost of lining canals with concrete and the environmental
impact.
Aquifer Recharge: A Critical Benefit
In addition to surface water, the Middle Rio Grande Valley is
heavily dependent on water from the aquifer. It is no secret that
experts believe that we are pumping water from the aquifer at a much
faster pace than we are recharging it.
This imbalance has raised concerns of eventual depletion of the
aquifer. In the near term, it raises concerns of subsidence--surface
settling--that could have disastrous effects on infrastructure and real
estate, especially in the population centers, such as Albuquerque.
Currently, the 47,000 acre-feet that seeps into the ground from the
MRGCD irrigation system is estimated to be the source for about half of
the recharge to the aquifer.
The MRGCD and the irrigators it serves consider the recharge to be
a critical benefit to the Middle Rio Grande Valley.
We urge that any plan to improve efficiencies in either conveyance
of water or irrigation of fields should consider the effect on aquifer
recharge.
Dangerous misinformation
Given the very real dangers--potential destruction of the bosque,
failure to recharge the aquifer, reduced crop production--that would
arise from attempts to take water from the irrigators in the Middle Rio
Grande Conservancy District, we cannot allow the mistaken notion that
they are taking and using 11 acre-feet per acre to persist. It can only
be viewed as dangerous misinformation and needs to be corrected before
any further planning can take place.
And, we also need to dispel the notion that the irrigators
themselves are not seeking efficiencies on their own.
Ongoing improvements
Since 1996, the MRGCD has been improving the efficiency of its
water conveyance system. New gages have been installed to accurately
measure diversions and return flows. New automated water gates have
been installed at several critical points and plans are underway to
install more automated gates at 40-plus locations. The MRGCD is also
investigating how scheduling and rotation of irrigation water
deliveries to farms can be improved.
The improvements in efficiency so far have been dramatic. Gross
diversions have steadily decreased, dropping from 475,835 acre-feet in
1997 to the 319,407 diverted in 2002. The MRGCD is projecting a gross
diversion of 275,149 acre-feet for 2003.
Other considerations
Other considerations are involved in the potential taking of water
from the agricultural irrigators of the Middle Rio Grande Valley, but
they are outside the scope of this testimony. However, it should be
briefly noted that the taking of water, held by individual water
rights, is the same as taking other personal property and should be
subject to the same process and protection. And, any scheme to provide
water for the silvery minnow should distribute the burden equally among
irrigators, municipalities and pueblos alike. No one should be exempt.
No one should be asked to bear the whole burden. And water should never
be taken by fiat.
______
[A statement submitted for the record by Subhas Shah, Chief
Engineer, Middle Rio Grande Conservancy District, Albuquerque,
New Mexico, follows:]
Statement submitted for the record by Subhas Shah, Chief Engineer,
Middle Rio Grande Conservancy District
Chairman Pombo: Thank you for the opportunity to have Dr. Thomas A.
Wesche provide oral testimony to the Committee on September 6. The
Conservancy District also offers the following written testimony for
consideration by the Committee.
1. Contrary to the claim made by Alletta Belin at the hearing on
September 6, the Middle Rio Grande Conservancy District has never
consumptively used ``eleven acre-feet of water per acre of irrigated
land.'' That claim is based on a distortion of reports from the U.S.
Bureau of Reclamation. Gages along the Rio Grande that measure water in
the river and water diverted from the river for irrigation show that in
2002 the Conservancy District diverted from the Rio Grande a total of
268,000 acre-feet of water. That is a ``net'' number, arrived at by
subtracting from the total or ``gross'' amount diverted, the amount of
water returned to the river as ``return flow.'' Approximately 60,000
acre-feet of diverted water went back to the river as return flows at
various points along 160 miles of the middle Rio Grande valley.
Approximately 3.8 acre-feet of water were diverted from the river in
2002 for each of the 70,000 acres of irrigated land in the middle Rio
Grande valley. In 2002, crops consumptively used about 150,000 acre-
feet of water, or about 2.2 acre-feet of water for every acre of
irrigated land in the Conservancy District. About 11,000 acre-feet of
water was consumed by the trees and other ``riparian'' vegetation along
the 1,238 miles of Conservancy District canals and drains (an estimate
based on field surveys and published estimates of vegetation water
use). Approximately 47,000 acre-feet of water seeped into the ground to
recharge the aquifer. In addition to supporting valuable wildlife
habitat along the canals, seepage from unlined canals is the source of
about half the recharge to the aquifer in the middle Rio Grande valley,
and is a direct benefit of the Conservancy District's water conveyance
system. The gage numbers are available to the public on gage readings
from various parts of the system, which can be found at:
http://usbr.gov/pmts/rivers/awards/Nm/rg/RioG/gage/schematic/
SCHEMATICnorth.html
http://usbr.gov/pmts/rivers/awards/Nm/rg/RioG/gage/schematic/
SCHEMATICsouth.html
http://waterdata.usgs.gov/nwis
http://www.spa.usace.army.mil/wc/adbb/riogrt.htm
The amounts of water consumed by crops and riparian vegetation
along the canals are estimated based on the area of irrigated land and
by calculating differences in gage numbers as water moves through the
complex system that includes the river, the canals, the return flows,
and the shallow aquifer. Seepage and recharge estimates from the 1997
Middle Rio Grande Water Assessment. Experts from Federal and State
agencies, private consulting firms and universities have examined the
Conservancy District's system, and most agree with the picture of
Conservancy District water use portrayed here. Regarding efficiency and
conservation,
Conservancy District ``efficiency'' refers to the relationship
between the amount of water diverted from the river (in 2002 that was
268,000 acre-feet), and the amount of water consumed by crops (in 2002
that was about 150,000 acre-feet): 150,000 divided by 268,000 = 0.559,
or 56%. In 1995, the New Mexico State Engineer reported that most
irrigation systems in New Mexico were about 50% efficient, so the
Conservancy District is in that way similar to other irrigation systems
in the state. It may be possible to make the Conservancy District more
efficient, but there are economic as well as ecological costs, and as
several experts have repeatedly pointed out, efficiency does not create
``new'' water. Some of the planning, engineering, and construction
required to increase the efficiency of the Conservancy District is
already done, and additional work will be expensive. The ecological
costs of a more ``efficient'' Conservancy District, with miles of
cement-lined canals, would result from reduced diversions which would
produce smaller return flows to the river, less water for riparian
vegetation along the canals, less seepage from the canals, less
recharge to the aquifer, and less water available in the river for the
endangered Rio Grande silvery minnow. The results of Conservancy
District efficiency improvements to date are dramatic, as illustrated
below in an analysis of Conservancy District diversions from the Rio
Grande, between March and August, from 1997 to the present.
,-- ,
Year
Gross Diversion
2003 (in acre-feet, without subtracting return flows)
2002 March through August Only
2001
1997
NOTE: ``Gross'' diversions are used in this analysis because they
best illustrate the kinds of efficiency improvements made to date by
the Conservancy District, most of which have focused on reducing the
volume of water diverted from the Rio Grande. We estimate that, while
``gross'' diversions have been dramatically reduced, it is unlikely
that ``net'' diversions (that is, ``gross'' diversions less return
flows) have changed as much. This is because ``net'' diversions are
more closely tied to crop consumptive use, seepage, and canal surface
evaporation, none of which have changed much over the last few years.
The result: Gross diversions from the Rio Grande (without
considering return flows) have been reduced by 39%, or approximately
179,000 acre-feet annually.
2. The issue raised by the decision of the U.S.10th Circuit Court
of Appeals in Minnow v. Keys is the most basic issue of federalism.
When the drafters of our Constitution prepared the document that
allocates power between the Federal government and the States, one
issue was abundantly clear: Allocation of property between private
parties, power to assess local taxes and sustain State government, and
the zoning and development of communities, were all left to the States.
While overall regulation of interstate commerce was within the purview
of the Federal government, the rights of individuals to hold property
were to be governed by the States, consistent with the 10th Amendment
to the Constitution. To promote equal protection of the laws, Congress
may choose to regulate State actions that result in discrimination. To
protect privacy or freedom of religion the Federal government has a
clear role. The Endangered Species Act, as interpreted by the
environmental plaintiffs in Minnow v. Keys, would take Congress role
beyond the protection of Constitutional rights and use Federal
legislation as a sword to impose Federal values on State entities, even
going so far as to take property without compensation, in violation of
the 5th Amendment to the Constitution. As interpreted by the
environmental groups in Minnow v. Keys, the Endangered Species Act, by
its own force, and without benefit of any Constitutional basis, would
provide that the property rights of individual farmers under State law
could be negated without compensation, if the Congress deems this
necessary. Likewise, the regulatory rights of the States to allocate
property could be nullified if Congress so chooses. This principle has
no limits. Suppose Congress decided that municipalities should have no
less than 30% open space and should all have a certain level of public
transportation and should plant certain kinds of trees. To achieve this
result, a Federal agency would simply have to order municipal
governments to alter their zoning laws and those who have constructed
buildings to the contrary to tear them down. Thus, while the context of
the basic dispute on which the Committee is holding hearings involves
Federal nullification of State water law and rights in water by the
federal Endangered Species Act, the principle is without limits. This
Committee should adopt the view that there is no place within our
Constitutional framework for laws that use adoption of Federal policy
to take property rights of individuals or nullify State choices as to
the allocation of these rights: The principle promoted by the
environmental plaintiffs yields the exact opposite result. The
Committee should find that the intent of Congress was to allow
jurisdiction to change regimes of water flow only where there is an
express deferral by the States for this result and only if there is
compensation for those who have relied upon their property rights under
state law to create farming communities and invest their capital. There
is a model for this result. It is the Federal reserved water rights
doctrine adopted and applied by the U.S. Supreme Court for fifty years.
It holds that Congress can reserve water for a species only if a) this
was the express intent of Congress, and b) only to the degree it does
not preclude the use of senior water rights in the stream system. See
Cappaert v. United States, 426 U.S. 128 (1976). I would urge you to
consider this methodology in your deliberations.
3. The recent ruling of the U.S. 10th Circuit Court of Appeals in
the case of Minnow v. Keys, permits the Bureau of Reclamation to reduce
contract deliveries of native Rio Grande water, and non-native San
Juan-Chama water, for the benefit of endangered species, including the
Rio Grande silvery minnow. This ruling supports the notion that more
water is necessary to conserve the silvery minnow, and that by simply
releasing more from storage, no matter the source or the probability of
future supply, the species will be protected. However, history does not
support the assertion that intermittency, river drying, and reduced
flows are the principal causes for the current status of the silvery
minnow. For example, Rio Grande stream gage records show that mean
monthly flows have been substantially higher and the occurrence of
zero-flow days substantially lower during the recent period when minnow
numbers have apparently declined sharply. While the numbers of silvery
minnow have apparently declined, river flows have been substantially
augmented and the number of zero-flow days reduced. These and other
hydrologic facts show that the strategy of simply releasing copious
amounts of water down the middle Rio Grande channel to benefit the
silvery minnow has failed. Moreover, critically low water supply levels
in upstream reservoirs dictate that such wasteful practices be
discontinued in favor of the more holistic approach that is
incorporated in the March 17, 2003, Biological Opinion of the U.S. Fish
and Wildlife Service. That Opinion's single Reasonable and Prudent
Alternative recognizes the hydrologic reality of the middle Rio Grande
by differentiating stream flow prescriptions between dry, normal and
wet years, acknowledges that river drying has occurred historically and
will continue in the future, and places the priority for management in
those river reaches (such as the Albuquerque reach) where flow can be
provided most effectively and efficiently, while maintaining other
necessary, and legitimate, water uses. Furthermore, the Opinion
effectively supports the necessity, at least in the short term, for
refugia, hatcheries, and other types of sanctuaries to protect and
conserve the species while wild habitat is being enhanced. Such a
strategy will allow all parties to move past the single, divisive issue
of keeping the river wet at all costs and on to the important business
of recovering the Rio Grande silvery minnow.
4. The Middle Rio Grande Endangered Species Act Collaborative
Program (the ``Collaborative Program''), while still in the formative
stages of what will be at least a 10-year effort, is an effective and
useful approach to the complex issues of water and endangered species
in the middle Rio Grande valley. This collaborative process is
attempting to define complex phenomena with incomplete data, test
hypotheses that are still incompletely defined, and adaptively manage
under conditions of an extreme, multi-year drought. To date, we have
been unable to draw firm conclusions because the data is either missing
or equivocal. However, complex problems such as those faced here in the
middle Rio Grande typically require complex solutions that cannot
please everyone. Nevertheless, the collaborative approach now in place
in the middle Rio Grande provides a reasonable forum from which
realistic solutions can evolve.
5. The condition of silvery minnow habitat in the reach of the Rio
Grande designated as ``critical habitat'' is severely degraded.
Therefore, recovery of the silvery minnow is unlikely unless habitat
enhancement measures, such as those being developed by the
Collaborative Program, are implemented. In its present condition, much
of the river is narrower, deeper, and swifter than it was historically.
Habitat diversity has been substantially reduced, secondary channels
have been cut-off from the main channel and lost, substrate coarsening
has occurred with gravels and cobbles replacing silts and sands in many
locations, and important elements of structural complexity, such as
large woody debris, have been flushed from the system without
replacement. The result is a substantial reduction in habitat quantity
and quality for the silvery minnow. Solutions that focus on enhanced
flow alone will not return habitat for the silvery minnow to the middle
Rio Grande. Well-conceived, carefully-designed, and properly-
implemented habitat enhancement measures, such as those prescribed in
the Biological Opinion and now being implemented through the
Collaborative Program, are needed to re-connect the Rio Grande with its
floodplain, widen the channel to promote habitat diversity, and
increase overall complexity. These high-priority measures must have the
funding necessary for them to proceed, if the silvery minnow is be
recovered.
6. At the present time, there is no river-wide, representative,
statistically-valid sampling program to yield a quantitative
description of the silvery minnow population, illuminate the temporal
and spatial distribution of the endangered species as well as the other
members of the fish community, measure the successes and failures of
the Collaborative Program, and chart progress toward the (yet-to-be-
established) recovery targets. Such a population sampling program must
be initiated immediately, and it must: 1) Sample habitats throughout
the middle Rio Grande in proportion to their availability; 2) Use
appropriate fish collection methods, procedures and gear for all
habitat types present within the river; 3) Establish a sampling
frequency sufficient to detect seasonal distribution shifts but not so
repetitive that undue sampling mortality and species behavior
modifications occur; 4) Be thoroughly documented and reproducible; and
5) Produce quantitative results of sufficient statistical rigor to
allow valid temporal and spatial comparisons to be made and progress
toward recovery to be documented. Over the past year, the Science
Subcommittee of the Collaborative Program has spent considerable time
debating this matter, and that debate must conclude over the next few
months in the development of a silvery minnow population monitoring
effort that will meet the requirements outlined above.
______
[A statement submitted for the record by Dr. William M.
Turner, Trustee, Lion's Gate Water follows:]
Statement of Dr. William M. Turner, Trustee, Lion's Gate Water
Mr. Chairman and Members of the Committee, I appreciate your
holding the record open for 10 days to allow Supplemental Written
Testimony to be entered into the record. concerning the decision of the
U.S. Court of Appeals for the Tenth Circuit in Rio Grande Silvery
Minnow v. John W. Keys 1, and its impacts on New Mexico.
---------------------------------------------------------------------------
\1\ In Rio Grande Silvery Minnow, et al. v. John W. Keyes et al.
(Decision 10th Cir., June 12, 2003) at 44.
---------------------------------------------------------------------------
I am Dr. William M. Turner, Trustee of Lion's Gate Water which does
business in New Mexico. I have been a consulting hydrologist in New
Mexico for nearly 35 years and I was the expert witness in The
Jicarilla Apache Tribe v. The United States et al. 2that was
cited so frequently with approbation in the Silvery Minnow decision. As
the Natural Resource Trustee for the State of New Mexico under Governor
Johnson, I was directly responsible for Governor Johnson's creation of
the Governor's Blue Ribbon Task Force on Water on which I served for
six years. I am also the Trustee of the WaterBank Trust, a not-for-
profit organization that seeks to find news ways of dealing with water
and environmental issues.
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\2\ Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (10th
Cir. 1981)
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First let me apologize for not having been with you at your
hearing. I have read all of the printed statements and find no real
solutions presented by Committee Members or invited presenters. I agree
with comments made by the Committee that we require a reliable, long
term water supply that will eliminate the contentious struggle now in
progress. The San Juan-Chama Project water is an unreliable source for
many reasons.
I agree with Chairman Pombo (R. Ca.) that there is no long-term
certainty in our present water supply picture. Our future growth
requires a stable and reliable water supply for all users including the
environment and economic development. The lack of certainty will
discourage investment in New Mexico.
As Natural Resources Trustee for New Mexico charged with replacing
damaged water resources of New Mexico, I hosted an international
conference in Albuquerque in cooperation with Sandia National
Laboratory on October 29, 2002. The conference explored the use of new
tools for allocating limited water resources including game theory,
complexity theory and systems analysis. These technologies have never
been integrated. And, with the exception of systems analysis they have
only rarely been used to solve closed-system water allocation problems.
These efforts came to an end when Governor Richardson replaced me as
the Trustee. Under the WaterBank Trust, these efforts can continue with
adequate funding which I estimate at $5 million over a five year
period.
The water contretemps now playing itself out in the Rio Grande is
has not been caused by the silvery minnow and environmentalists. The
blame rests squarely on the shoulders of the U.S. Bureau of Reclamation
and the acquiescence of State and other Federal agencies in their
mismanagement of the water and it is the silvery minnow they have
singled out as the scapegoat. There is no water shortage in New Mexico.
The Four ``Cs'' of President Bush's Water 2025 Plan, namely,
Cooperation, Communication, Collaboration for the Conservation of water
are the new buzzwords. The Water 2025 Plan is not going to find any
real solutions because the struggle is among multiple hydrohegemons for
control the same drops of water no matter how politely they behave. As
long as stakeholders continue to think inside the box, so to speak, no
new solutions will be found. We must face realty. We are dealing with a
finite resource and all of the suggestions to date are zero sum games.
That is, there are winners and there are losers. There is really
nothing new on the table.
I think we must take our lead from Mark Twain who said that the
solution to water problems is more rain. No, I am not advocating cloud
seeding. I would rather paraphrase Mark Twain by saying that the
solution to our present water problems is conservation and less
evaporation. And, if we do not learn the lesson of recent history and
read the message now on the wall, we will repeat our errors far in the
future.
In the Jicarilla case, Albuquerque proposed to store its San Juan-
Chama water in Elephant Butte Reservoir until it was needed; then, it
would recover it by bookkeeping exchanges with the Elephant Butte
Irrigation District. The trial was in 1979 and I modeled the surface
water system of the Rio Grande on an Apple II+ computer including the
surface area-volume relationship of Elephant Butte Reservoir. I
simulated the various scenarios presented by the government and the
City of Albuquerque and I was able to show that by the time Albuquerque
recovered its stored water a minimum of 93 percent would have been lost
to evaporation.
It is widely recognized by the State Engineer, New Mexico
Interstate Stream Commission, U.S. Bureau of Reclamation, U.S. Army
Corps of Engineers and water scientists that open reservoir consumptive
evaporation in New Mexico from reservoirs containing more than 5,000
acre feet of storage is up to 591,000 acre feet per year. This must be
compared to total municipal and industrial usage of 195,000 acre feet
per year and total silvery minnow usage of say 20,000 acre feet per
year. My calculations using current published data and some of the data
that supported the decision in the Jicarilla case suggest that, at
reservoir full conditions, evaporation from Cochiti, Elephant Butte and
Caballo alone is about 392,000 acre feet annually. Of course, it is
less now that these reservoirs are at about 10 percent capacity.
There is no water shortage along the Rio Grande in New Mexico now
nor has there ever been and those agencies that have led the public to
believe this have done a wonderful job establishing a fiction to cover
up their own mismanagement.
The State Engineer has long held that there is no unappropriated
water on the Rio Grande in New Mexico. Even the New Mexico Supreme
Court, relying on a stipulation of the State Engineer, said as much in
State v. Meyers 3, a 1956 case. However, former State
Engineer Tom Turney, though he continued the mantra that there was no
unappropriated water sent letters to the BOR and the Middle Rio Grande
Conservancy District (MRGCD) on March 21, 2001 requiring them to
provide him proof of their beneficial use of water. They have not
complied with his request nor can they.
---------------------------------------------------------------------------
\3\ State v. Meyers et al. 64 N.M. 186, 326 Pd 1075
---------------------------------------------------------------------------
Mr. Turney recognized that both the BOR and the MRGCD are only
authorized by the State Engineer to store and convey water to the
owners of the water rights. Any applications these agencies have filed
for unappropriated water are nul tiel because, under New Mexico law, it
is the Applicant that must use the water for a beneficial purpose and
these agencies do not use the water. They simply serve as an
intermediary in delivering a more reliable supply to the ultimate
beneficial users whose rights originated many years prior to the
creation of these agencies. The ownership of the water rights belongs
to the person placing the water to beneficial use pursuant to N.M.
Const. Art. XVI Sec. 3 4and the opinion of Judge Harl D.
Byrd 5 that, to draw a parallel, it is the farmers in the
Carlsbad Irrigation District (CID) who own the water rights and not the
BOR or the CID. Finally, in 1953, the MRGCD itself, as Appellee in
Middle Rio Grande Water Users Assn. V. The Middle Rio Grande
Conservancy District 6, recognized this and the New Mexico
Supreme Court agreed.
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\4\ ``The beneficial use of water shall be the basis, the measure
and the right to the use of water.''
\5\ Opinion Re Threshold Legal Issue No. 3 in State of New Mexico
ex rel. State Engineer and Pecos Valley Artesian Conservancy District
v. L.T. Lewis, et al., United States of America, Nos. 20294 & 22600
Consolidated filed with the Fifth Judicial District Court on November
4, 1997 at 8:35 AM
\6\ Middle Rio Grande Water Users Ass'n v. Middle Rio Grande
Conservancy Dist., 57 N.M. 287,293, 258 P.2d 391 (N.M. 05/11/1953)
``E. That said contract and legislation under which appellee
purports to act offends against the Tenth Amendment to the Constitution
of the United States in that appellant is a public corporation vested
with governmental function, including the power to tax and levy
assessments, and that the appellee [MRGCD] is now trustee of the
irrigable waters of the Rio Grande in the District for the purpose of
distributing the same to the owners of water rights and has no title to
the water; that the title to the water is appurtenant to the land and
belongs to the landowners, and said contract attempts to transfer title
to the water of the river and the taxing power of the appellee to an
executive of the federal government, to-wit, the Secretary of the
Interior
---------------------------------------------------------------------------
So, I am in particular agreement with the testimony given by
Governor Ortiz of the Pueblo of San Felipe in his opening statement:
``Because the United States has seriously over-engineered the Rio
Grande with many dams and reservoirs, the natural ecosystem is in
crisis and the silvery minnow is on the brink of extinction. At the
same time, federal mismanagement of the river and water delivery
systems has made it very difficult for the Middle Rio Grande Pueblos to
continue our ancient customs and traditions that depend upon our
precious water.'' I would only add that the New Mexico State Engineer
and the Interstate Stream Commission as well as the Rio Grande Compact
Commissioners are equally as culpable for having stood by for almost
100 years while our precious water just evaporated away.
However, the myth of a water shortage has led to salutatory water
conservation programs that continue today in our communities and under
the leadership of Anne Watkins in the State Engineer's Office and Jim
Baca, my successor as Natural Resources Trustee. Trustee.
The shortage of water is a product of antiquated water use and
water management technology. It is also the product of government
management that precludes the involvement of private enterprise. The
U.S. Bureau of Reclamation (BOR) is certainly part of our problem. An
agency that was borne in the late 1800's as a department within the
U.S. Geological Survey upon the great oxymoronic purpose of wresting
control over water in the west to ``reclaim'' desert land that was
never irrigated. The agency leadership has not a new paradigm in view
at a time when new paradigms are desperately needed.. This is
unfortunate because agency employees are intelligent and dedicated
people who, given the chance, could solve our new problems with new
concepts and technology.
It is extremely disturbing that after the court overturned the ill
conceived plan of Albuquerque to store its San Juan-Chama water in
Elephant Butte that no one learned from that decision that the
evaporation losses were an egregious waste of our precious water
resources. The Jicarilla case should have been an explosive wake up
call to water managers in the West. It was not. Institutional inertia
was just too much or maybe our backs were not close enough to the wall.
For the past six years I had periodically brought the evaporation issue
before the Governor's Blue Ribbon Task Force on Water but it never
caught fire. I think the matter was just to large for them to grasp or
grapple with because it involved too many sacred cows and entrenched
shibboleths.
In fact, open, man-made reservoirs have been disastrous both to man
and nature alike. They allow the unconscionable waste of water and
destroy natural habitat. In 1999, the Edwards Dam on the Kennebec River
in Maine was breached. The Four dams on the Snake River in Idaho are
under pressure for removal to preserve the wild Snake River Salmon from
extinction. In May 2003, Federal Judge James Redden ruled that a
government plan for saving the salmon with measures short of dam
breachings on the Snake was inadequate. A Bill now in the U.S. Congress
(H.R. 1097) sponsored by Jim McDermott (D. WA 7th) with 85 co-sponsors,
introduced on March 5, 2003, would give the approval of Congress to
breach the dams. Removal or Cochiti Dam was advocated at the 47th
Annual New Mexico Water Conference. On July 30, 2003, the KRQE Channel
13 Evening News ran a story on the Rio Grande bosque restoration that
briefly mentioned removal of dams in New Mexico.
On June 16, 2003, followed by subsequent amendments and
applications ending on September 5, 2003, Lion's Gate Water filed its
application under N.M. Stat. Ann. Sec. 72-1-1 et seq. for all of the
unappropriated and wasted water that evaporates from the surfaces of
Cochiti, Elephant Butte, and Caballo Reservoirs. Our proposal will
divert the waters of the Rio Grande at points to be determined and to
place the water associated with and that gives rise to the evaporation
surface and the evaporation into ground-water storage and retrieval
projects or to store the water in upstream reservoirs even into
Colorado. Cochiti and Elephant Butte reservoirs would serve as
sedimentation and temporary storage basins. The ground water storage
and retrieval projects will be carried out either privately or in
public private partnerships within the Santa Fe Group aquifer from
Espanola to Las Cruces and within the Hueco and Mesilla Bolsons of
southern New Mexico, and the Republic of Mexico. The water salvaged
will be used for environmental restoration, endangered species
preservation, agriculture stabilization, and future municipal and
industrial beneficial uses within the Upper and Lower Rio Grande and
possibly Mexico. I have long believed that the Rio Grande should be
actively managed from its headwaters to the Gulf of Mexico. And, I
believe the powerful Powersim model of the Rio Grande Basin, now under
development by Sandia National Laboratory, should be used to evaluate
water management rules.
Ground-water storage and retrieval projects are not rocket science.
The Nabateans used a variant of them 2000 years ago in the Negev desert
of Israel. Two years ago by the New Mexico Legislature enacted
legislation that allows owners of such projects to maintain ownership
of the water harvested. The legislation, however, does not permit
private participation. We believe this is both unfortunate and illegal
both because both federal and state government in our post 9/11 world
lack the funding and because it represents an illegal attempt to
protect a public monopoly to the exclusion of private enterprise and
the commercialization of the resource. Certainly private enterprise is
more innovative and flexible than government institutions in swiftly
implementing solutions when government does not erect illegal,
administrative, legal, financial, environmental and technical barriers
to project implementation.
Our Application does not impair any existing or yet to be
adjudicated historical water rights of either Indian or non-Indian
water users anywhere. The water for which we are applying has never
been used consumptively by man. For the water to evaporate from
Elephant Butte and Caballo at all, it was first used by upstream users
and then flowed downstream. Prior to construction of Elephant Butte dam
historical water use was limited and unreliable in the Lower Rio
Grande; however, our Application will provide additional water and
stabilize agricultural uncertainty. It will be the only commodity sold
to farmers wholesale rather than the retail prices they pay for
everything else.
It is our intention that contractees for the water we have applied
for will be required to purchase water for the environment in amounts
that will be determined by biological opinion. This model is presently
used by the Environment Agency in the United Kingdom where the
government is struggling to facilitate the free marketing of
Abstraction Licences, while enhancing environmental restoration and
water quality. Indeed our Application will improve overall water
quality by significantly reducing the increased concentration of
solutes that results from evaporation.
Our initial applications have already been rejected by the State
Engineer after consultation with the highest levels of the Executive
and Legislative branches of government. Their reason in their August
25, 2003 letter (a copy of which is appended) states: ``In fact, the
evaporation loss from Elephant Butte Reservoir is accounted for and
charged against accrued credits and/or debits.'' Such accounting would,
in other circles, be called ENRON accounting. Accountants cannot hide
the fact that the evaporative losses are ``real water'' and an
egregious loss of our precious water resources which is a sustenance to
the environment and mankind.
The rejection and policies that we think the State Engineer will
use in furtherance of Executive policy to frustrate our Application
will be discriminatory to the rights of the private citizen granted
under Article XVI of the New Mexico Constitution and the clear language
of State Law and the U.S. Supreme Court decision in Sporhase v..
Nebraska 7 that recognized water as a commercial trade good
and an article of interstate commerce. Rather than working with Lion's
Gate, we believe that State Government will set up a long and
protracted legal battle to protect the public water monopoly rather
than allowing Lion's Gate Water to get on with conserving water and
restoring the environment all of which are clearly in the public
interest. State water law is already filled with numerous examples of
legal barriers to private investment and participation. Some laws
violate the Equal Protection Clause of the Constitution by granting
rights and privileges to government entities that they deny to private
entities. Contumacious behavior by the Executive and quite possible the
Legislative Branch of government to implement illegal policy for which
they may be held liable is clearly not in the public interest but
perpetuates the water problems we now face.
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\7\ Sporhase v. Nebraska Ex Rel. Douglas, 458 U.S. 941 (1982)
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Without permits in place and certainty, Lion's Gate Water is, of
course, without the ability to raise investment capital to put its
projects into place and free markets will not develop, a theme that was
touched on by Mr. D'Antonio, our State Engineer, and Ms. Grevey Hillson
in their testimony.
For the complete information of the Committee, Lion's Gate Water
submits herewith a copy of its final Application and amendment dated
September 5, 2003. Our Application can be viewed on the Internet at
(http://www.waterbank.com/PDF%20Files/
APPLICATION%20FOR%20PERMIT%20TO%20APPROPRIATE6.pdf)
It is our purpose in presenting this testimony to seek a workable
political, legal, and institutional framework within which Lion's Gate
Water can operate commercially to conserve the 100s of thousands of
acre feet of wasted water as a present and future sustenance to man and
nature.
For example, we require legislation that will help us provide long-
term, predictable and reliable supplies to the environment and other
Rio Grande water users rather than frustrate the lawful objectives of
our Application by creating discriminatory barriers and at least
allows:
Private enterprise to pursue solutions to public water supply
problems on an equal footing with public institutions as a lawful
commercial enterprise which is a beneficial use of water under New
Mexico law.
Active basin management by private enterprise subject to state and
federal oversight while respecting free market pricing and the
marketing and sale of water as a commodity and trade good.
Re-negotiation of the U.S.-Mexican Treaty for the transboundary
storage, salvage, delivery, and sale of water to Mexico to alleviate
the water shortages faced by Juarez.
Storage of Rio Grande Basin water in Colorado as part of overall
basin-water management.
I have often marveled that the principles by which we order society
and regulate our lives have changed little over the millennia thus I am
reminded of the words of Justice McGhee in Middle Rio Grand Water Users
Association who stated ``In this connection two legal maxims, worn
threadbare by time yet still functioning with as much vigor as ever
with the added leaven of age, come to mind. They are: ``Salus populi
est suprema lex'', literally translated meaning--``The health of the
people is the supreme law'' but often translated as ``The safety of the
people is the supreme law;'' and ``Sic utere tuo ut alienum non
laedas,'' meaning ``So use your own as not to injure another's
property.'' which the BOR seems to have neglected these many years.
To conclude, I am sure you will agree that our Application is
clearly in the public interest and, together with conservation and best
water use practices, is the only large scale, comprehensive solution to
our immediate water problems.
Should you wish, I am at your disposal to present testimony on this
topic in Washington or elsewhere as the Bureau of Reclamation operates,
I believe, some 348 reservoirs elsewhere in the West.
NOTE: An enclosure, ``Application and Sixth Amendment to
Appropriate the Public Surface Water of the State of New Mexico, August
25, 2003 rejection of Applications filed June 16, 2003 et seq.'' has
been retained in the Committee's official files.
______
NOTE: The following information has been retained in the
Committee's official files:
A report entitled ``Taking Charge of Our Water
Destiny: A Water Management Policy Guide for New Mexico in the
21st Century'' by Alletta Belin, Consuelo Bokum, and Frank
Titus. It is also available on the Internet at www.1000friends-
nm.org.
A report entitled ``Summary of the Biology of Rio
Grande Silvery Minnow, An Endangered Species in the Middle Rio
Grande, New Mexico'' by Steven P. Platania and Robert K.
Dudley.
A report entitled ``Economic Costs and Benefits
of Instream Flow Protection for Endangered Species in an
International Basin'' by Frank A. Ward and James F. Booker.
A packet of information submitted by Pena Blanca/
Site Irrigation Working Group.