[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



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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
---------------------------------------------------------------------------
    \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))
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------
    \2\ Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (10th 
Cir. 1981)
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \7\ Sporhase v. Nebraska Ex Rel. Douglas, 458 U.S. 941 (1982)
---------------------------------------------------------------------------
    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.

