[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]




 
 EXAMINING THE IMPACTS OF THE ENDANGERED SPECIES ACT ON SOUTHERN NEW 
                                MEXICO

=======================================================================

                        OVERSIGHT FIELD HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

             Monday, June 7, 2004, in Carlsbad, New Mexico

                               __________

                           Serial No. 108-96

                               __________

           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 Monday, June 7, 2004.............................     1

Statement of Members:
    Pearce, Hon. Stevan, a Representative in Congress from the 
      State of New Mexico........................................     5
        Prepared statement of....................................     7
    Pombo, Hon. Richard W., a Representative in Congress from the 
      State of California........................................     3
        Prepared statement of....................................     4

Statement of Witnesses:
    Davis, Tom W., Manager, Carlsbad Irrigation District, 
      Carlsbad, New Mexico.......................................    13
        Prepared statement of....................................    16
    Harvard, Jeff, President, Harvard Petroleum, and Past 
      President, Independent Petroleum Association of New Mexico.    18
        Prepared statement of....................................    20
    Ogden, Alisa, Rancher, Carlsbad, New Mexico..................     8
        Prepared statement of....................................    11
    Prukop, Hon. Joanna, Secretary, New Mexico Department of 
      Energy, Minerals and Natural Resources.....................    24
        Prepared statement of....................................    27
    Stell, Hon. Joe M., State Representative, District 54, State 
      of New Mexico..............................................    35
        Prepared statement of....................................    38
    Tully, Jon R., City Administrator, City of Carlsbad, New 
      Mexico.....................................................    39
        Prepared statement of....................................    41


 OVERSIGHT FIELD HEARING ON ``EXAMINING THE IMPACTS OF THE ENDANGERED 
                 SPECIES ACT ON SOUTHERN NEW MEXICO.''

                              ----------                              


                          Monday, June 7, 2004

                     U.S. House of Representatives

                         Committee on Resources

                          Carlsbad, New Mexico

                              ----------                              

    The Committee met, pursuant to call, at 8:00 a.m., at the 
Pecos River Village, Carousel Building, Carlsbad, New Mexico, 
Hon. Richard W. Pombo presiding.
    Present: Representatives Pombo and Pearce.
    The Chairman. If I could have everybody take their seats, 
please. Good morning.
    The oversight hearing by the House Committee on Resources 
will come to order. The Committee is meeting today to hear 
testimony on the Endangered Species Act. Thank you for the 
opportunity to bring the Committee to southern New Mexico. I 
look forward to listening and gaining greater insight from the 
witnesses today on how the Endangered Species Act is impacting 
families in everyday operations and businesses in this region 
of the country.
    I'd like to now turn it over to my colleague, and the host 
of today's hearing, Congressman Steve Pearce.
    Mr. Pearce. Thank you, Mr. Chairman. And I'm going to 
introduce what we're going to do first, and then we'll just 
walk straight through it. The posting of the colors is going to 
occur by Boy Scout Troop 288, and then we'll be following that 
with the Pledge of Allegiance led by Chief Connie Riley. Then 
Jeff Herring is going to sing God Bless the USA, and Reverend 
Robert L. Smith will do an opening prayer.
    So if I can have you all please rise for the posting of the 
colors.
    [Singing of God Bless the USA.]
    Reverend Smith. Let us pray.
    Father God, we come to you right now as humble as we know 
how. We come first, Lord, to thank you with uplifted heads for 
being in the land of the free. Father God, we want to say thank 
you for all of the blessings that you've bestowed upon us. 
You've kept us and you've sustained us.
    And we thank you for all the lands that you've given us, 
the beasts of the fields and the birds in the air. And we thank 
you, Lord, and we pray that we have the mind and wisdom, that 
Thou will give us the mind and wisdom to sustain all you have 
given us.
    And we ask that you would look on those that have made it 
possible that we be free, the soldiers that are fighting 
overseas. Lord, we pray for them and for their families, that 
Thou will keep them and bless them. But most of all, that we as 
a nation, Lord, would always have our mind near to Thee, that 
has all power. And most of all, Lord, also that Thy will be 
done, not our will, but Thy will.
    These and many other blessings that we ask in the name of 
Jesus, Amen.
    Mr. Pearce. You all can take your seats, and I'm going to 
do a short flag presentation. If I could get Mr. Berg and 
Reverend Smith and the Boy Scout troop right up here, I think 
we are going to announce them, and if the Chairman would pass 
the flags out to them. These are flags that have been flown 
over the Capitol. And we think it is very special when we have 
people help us in our process. We just want to recognize those 
things, so thank you all.
    Let's give them a big round of applause.
    We have Mayor Forrest here. Mayor, would you like to make a 
comment or two before we get started?
    Mayor Forrest. I think everybody has heard enough speeches. 
I just want to thank you and the Chairman, Richard Pombo, for 
being here. We really appreciate having these hearings.
    And I notice people here that are opposed to the endangered 
species. We just had an oil well blow out here a month ago, 
here in Carlsbad, and I've been to those committee meetings and 
I've watched the oil and gas people and the community have come 
together and working out a solution. And I think one of the 
best things that ever happened to this community, we're able to 
sit down and work our problems out.
    And I think today is another good example of you having 
this hearing, giving both sides a chance to talk about the 
issues, talk about the problems. And you know, as mayor of 
Carlsbad, we're very blessed with potash, with oil and gas, and 
healthcare and tourism. We've got so many good things going for 
us.
    But the biggest asset this city has is this beautiful 
river. And we have seen over the last two or 3 years what 
happened in the drought. Down in Otis, the Prices having to 
give up 6,000 acres of irrigated land. It is a very big 
problem. I think we can work it out. We'll all work together. 
And I just want to thank you and the Chairman for having this 
hearing here today.
    Mr. Pearce. Thank you, Mayor, and thank you for having us 
here in town.
    The Chairman. Thank you. And I thank all of those who 
participated in the opening of our hearing here today. As we 
begin, I'd say that under Committee Rule 4(g), the Chairman and 
the Ranking Minority Member can make opening statements. If 
other members have other statements, they can be included in 
the hearing record.
    Also, under House Rules, there is a prohibition on the 
display of signs or any comment from the audience during the 
process of the hearing. This is an official Congressional 
hearing, and the decorum must be maintained in accord with the 
Rules of the House.

  STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    The Chairman. The Endangered Species Act has given wildlife 
very little to cheer about as we stagger blindfolded into its 
30th anniversary. Since its inception, nearly 1,300 species 
have been listed as threatened or endangered. Yet, only seven 
domestic species listed under the ESA have ever been recovered 
in 30 years. Not one of those species was recovered as a result 
of the ESA alone. Their removal from the ESA is to be linked to 
other vital conservation measures and human intervention.
    Sadly, that is the history of the Endangered Species Act. 
Born of the best intentions, it has failed to live up to its 
promise. Species are more threatened today because of its 
serious limitations. Thirty years of the same prescription has 
failed. Moreover, despite the evidence, some maintain that we 
can only use one treatment, the one prescribed 30 years ago.
    But for the last 30 years, the ESA has remained a law that 
checks species in, but never checks them out. It has been a 
failing form of managed care. Specifically, the diagnosis and 
treatment aspects of the law are fatally flawed. They are 
ambiguous, open to arbitrary personal judgment, and do not rely 
on sound science or peer-reviewed research. Known as listing 
and critical habitat respectively, these key elements of the 
Act are responsible for the misdiagnosis of species as 
endangered or threatened and the application of a one-size-
fits-all solution.
    When a species is listed for protection, treatment comes in 
the form of critical habitat designations, which forbid the use 
of lands by or for anything but the species. Critical habitat 
is one of the more perverse shortcomings of the Act. It has 
been interpreted to mean that if an animal is determined to be 
in trouble, there is only one viable option, to designate the 
critical habitat and let nature take its course.
    Rampant environmental litigation has undermined the 
already-broken system at the expense of species recovery. In 
fact, there have been so many lawsuits that the Federal 
critical habitat program went bankrupt last year. Litigation 
has 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 
the 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.
    Congress intended for this law to be used to recover 
species and to increase the number those in need before 
triggering Federal regulation. To merely prevent the extinction 
of the species is not a long-term measurable success. Congress 
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.
    Celebrating these failures--as many are doing in this 30th 
anniversary of the Act--is not how we should mark this 
occasion. Instead, we must begin to improve it for the 21st 
Century. As we are doing here today by closely examining its 
implementation in southern New Mexico, Congress must focus on 
legislative reforms that foster the science, technology, and 
innovation that have made America successful in other 
endeavors.
    I realize the amendment and reauthorization of the 
Endangered Species Act has dragged on since it expired in 1993. 
This is not for 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 than have to agree on what 
is best for the species.
    The House Committee on Resources is here today as a result 
of the hard work of my colleague and good friend, Congressman 
Steve Pearce. 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 like at this 
time to recognize Mr. Pearce.
    [The prepared statement of Chairman Pombo follows:]

        Statement of The Honorable Richard W. Pombo, Chairman, 
                         Committee on Resources

    Good morning. I would like to call this hearing on the Endangered 
Species Act to order. Thank you for the opportunity to bring the House 
of Representatives Committee on Resources to southern New Mexico.
    I look forward to listening and gaining greater insight from the 
witnesses today on how the ESA is impacting families and every day 
operations and businesses in this region of the country.
    The Endangered Species Act has given wildlife very little to cheer 
about as we stagger blindfolded into its 30th anniversary. Since its 
inception, nearly 1,300 species have been listed as threatened or 
endangered. Yet, only seven domestic species listed under the ESA have 
ever been ``recovered'' in 30 years. Not one of these species was 
``recovered'' as a result of the ESA alone. Their removal from the ESA 
is to be linked to other vital conservation measures and human 
intervention.
    Sadly, that is the history of the Endangered Species Act. Born of 
the best intentions, it has failed to live up to its promise, and 
species are more threatened today because of its serious limitations. 
Thirty years of the same prescription has failed. Moreover, despite the 
evidence, some maintain that we can only use one treatment--the one 
prescribed 30 years ago. But for the last 30 years, the ESA has 
remained a law that checks species in, but never checks them out. It 
has been a failing form of managed care.
    Specifically, the ``diagnosis'' and ``treatment'' aspects of the 
law are fatally flawed. They are ambiguous, open to arbitrary personal 
judgment and do not rely on sound science or peer-reviewed research. 
Known as ``listing'' and ``critical habitat'' respectively, these key 
elements of the Act are responsible for the misdiagnosis of species as 
endangered or threatened and the application of a one-size-fits-all 
solution.
    When a species is listed for protection, treatment comes in the 
form of critical habitat designations, which forbid the use of lands by 
or for anything but the species. Critical habitat is one of the most 
perverse shortcomings of the Act. It has been interpreted to mean that 
if an animal is determined to be in trouble, there is only one viable 
option--to designate critical habitat and ``let nature take its 
course.''
    Rampant environmental litigation has undermined the already-broken 
system at the expense of species recovery. In fact, there have been so 
many lawsuits that the federal critical habitat program went bankrupt 
last year. Litigation has 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.
    Congress intended for this law to be used to recover species and to 
increase the number of those in need before triggering federal 
regulation (restrictions). To merely prevent the extinction of a 
species is not a long-term measurable success. Congress 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.
    Celebrating these failures--as many are doing this 30th anniversary 
of the Act--is not how we should mark this occasion. Instead, we must 
begin to improve it for the 21st century. As we are doing here today by 
closely examining its implementation in southern New Mexico, Congress 
must focus on legislative reforms that foster the science, technology 
and innovation that have made America successful in other endeavors.
    I realize amendment and reauthorization of the Endangered Species 
Act has dragged on 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
    The House Committee on Resources is here today as a result of the 
hard work of my colleague and good friend, Congressman Steve Pearce. 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. Pearce.
                                 ______
                                 

   STATEMENT OF THE HON. STEVAN PEARCE, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF NEW MEXICO

    Mr. Pearce. Thank you, Mr. Chairman, for coming to New 
Mexico and coming to Eddy County to look at impacts that we 
have on the Endangered Species Act. You know, there are a lot 
of people who say that we should just dismantle and rescind 
that act, and I will tell you that it's not politically 
possible, nor is it necessarily desirable. I think there are a 
couple of good outcomes that have come from that act, but we 
must achieve some balance.
    For me, this hearing continues a hearing we had a couple of 
weeks ago in Washington, and the last testifier of the day, 
after about four and a half hours of testimony, the last woman 
just burned her testimony into my mind. She said that, My 
politics are green, and she said that, I come from--I think it 
was San Jose, California, and she said, We're as green a city 
as exists in the United States.
    And she said the Endangered Species Act is blocking 
everything we want to do. And she said now here in my time I'm 
seeing people with green policy. Just open the dad gum beach, 
basically, is what it said. My wife has cautioned me against 
repeating bumper stickers exactly. So when the people who 
really support an issue begin to say that we need some balance 
in it, I believe that we need to look cautiously at the changes 
that we need to make.
    Another compelling testimony we had about 6 months ago was 
when the loggers and the pulp woodworkers, the Paper of America 
came, a strong union group, and they told us how many mills had 
been closed, and they said just give us our jobs back. Our 
friends on the other side of the aisle in that committee 
meeting said, but you don't understand, you can have jobs in 
tourism. You can have jobs in the hospitality industry. And 
these fine union workers--and I mean, these were the heart of 
Americans out here working in very difficult conditions to cut 
timber and to bring it to market--said, we don't want those 
jobs. We want our jobs in the industry back. So we continue to 
hear the difficulties that the Act causes.
    Mr. Chairman, if there is no--I've got a longer, more 
complete statement I would like to submit for the record. But 
also if we could include in the record a copy of the videotape 
from this morning's rally for people who fight this fight for 
judicious implementation of the Endangered Species Act, and if 
we could include that in the record, I would appreciate that.
    The Chairman. Without objection
    [NOTE: The videotape submitted for the record has been 
retained in the Committee's official files.]
    Mr. Pearce. Thank you. I was just in a meeting Saturday up 
in Cloudcroft. We were being told there that Georgia-Pacific 
had come in and wanted to put a chipping plant in this 
district, but they needed certainty from the Forest Service 
that they could provide small-diameter logs in a number 
adequate to sustain their production. They were willing to 
bring 85 jobs here almost immediately. The Forest Service has 
been working for 3 years to try to determine how much timber 
they can cut. And they said, We still don't know. We'll get 
back with you.
    Georgia-Pacific left the state and said, When you-all get 
some knowledge, give us a call back. Right now, we're in danger 
of losing the two mills over in Alamogordo. They need 12 
million board feet a year from the Forest Service out of a 
million acres of land, and the Forest Service can't give them 
an answer. I don't think it's always the Forest Service's 
complete fault. I think they are bound by litigation and they 
are bound by internal policies. But it just is an example to me 
how badly flawed some of our decisionmaking processes are when 
we cannot get answers, when we cannot create and have jobs for 
people to work on.
    As I look at the Scott Able fire, a very hot fire that 
burned because we have basically too many trees in the forest, 
that fire burned. And we had, earlier this year, a rain. The 
estimates from an official Saturday was that we had 3 million 
years of topsoil washed away in the Scott Able fire. When we 
choose not to manage our resources, when we choose to allow the 
fuel load to buildup and then burn--and it's not a question of 
if they are going to burn, but when our forests are going to 
burn--then we have catastrophic damage that will take a long 
time.
    Many times the policies that we're implementing do not 
prove to be environmentally sound. They prove to be what an 
environmental group wins in court.
    I was also at the meeting on Saturday and found that the 
estimate is that we have the equivalent, when we looked at the 
tree load in just the southern district of New Mexico, that 
we've got the equivalent of 500,000 families, because each tree 
uses a certain amount of water. And when you compare the number 
of trees and equate it over to the amount that one family uses 
in water, we realize that a second deep problem is occurring 
from the tree load in our forests, and that is that water in 
the Pecos River and the water in our aquifers is impeded to 
such an extent that it affects our way of life. It affects even 
our ability to continue to have communities and to have 
agriculture and to have just a culture here when we need the 
water that's being used by too heavy and too dense a population 
of trees in our forests.
    When I look at the price of oil, you simply have to say 
that we make our choices here. Right now we're over asking the 
Saudi Arabians if they'll increase production by a million to a 
million and a half barrels of oil a day to try to get the price 
down so that the price of gasoline is not close to $3 at the 
pump. In 1995, the House and the Senate passed a bill which 
would have allowed drilling in ANWR. President Clinton vetoed 
that bill, and today, had that bill gone through, we would have 
been piping one and a half million barrels a day, almost 
exactly what we're asking for the Saudi Arabians to produce. We 
would be somewhat more dependent today than what we are as a 
result of the choices that we make in our environment and in 
all of life are going to end up coming together and impacting 
us in economic ways. It's up to us, the people, to decide what 
those ways are.
    As we talk about our resources, New Mexico is rich with 
resources. We've got timber. We've got mining. We've got oil 
and gas. We have to ask ourselves which of those resources are 
available and accessible? And that ends up being an economic--
has an economic outcome.
    So, Mr. Chairman, I'm going to submit my full statement, 
but I wanted to make these comments to really put into 
perspective what we're going to talk about, in my opinion, at 
this field hearing today. We've got a good panel that really 
has been interdicting, has been dealing with the on-the-ground 
effects of this Endangered Species Act for years.
    I think these, given the testimony that you took a couple 
of weeks ago in Washington, I think that this testimony will 
again give us information about the things that we can do that 
make common sense that will bring balance into a bill that we 
need to have. We need to be protecting species, but we do need 
to be considering the human aspects.
    So, Mr. Chairman, I thank you for coming to Carlsbad. I 
thank you for coming to New Mexico.
    [The prepared statement of Mr. Pearce follows:]

Statement of The Honorable Stevan Pearce, a Representative in Congress 
                      from the State of New Mexico

    Thank you, Mr. Chairman, for coming to New Mexico to learn about 
the impact of the Endangered Species Act.
    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, our nation's economy is driven by natural resources 
that are available on federal lands. Americans cannot heat their homes, 
enhance their businesses, or feed their families without affordable 
natural resources. America, and particularly the West, has been blessed 
with an abundance of federal lands from which natural resources are 
available. Federal lands grow our food, provide wood to build and 
furnish our homes and minerals that become products we use every day. 
We also get a large percentage of our energy supply from federal lands.
    New Mexico, in particular, is an important producer of food and 
energy for our nation, and the unreasonable application of the ESA is 
having a disastrous impact on how we are able to live our lives and 
provide for our families. For example, the ESA has had a devastating 
effect on the production of fruits, vegetables, livestock and oil and 
gas in New Mexico. Land and water New Mexican's have used for hundreds 
of years is now off-limits to them because of the ESA. For example, 
livestock grazing is being drastically curtailed, in some instances 
solely because of the ESA. Another example is the water that took New 
Mexico decades to store as a hedge against drought is being taken for 
fish with no regard for the impacts to humans. My bill, H.R. 2603, 
would return the water rights to the states and the rights holder, and 
has broad support in the state.
    Federal lands support a wide variety of activities that are 
important to New Mexico's culture and heritage. Many descendents of the 
Mexican land grants hold family parcels on federal lands that are used 
to raise cattle and pass on the traditions and family values from 
generation to generation. We cannot allow the unintended consequences 
of the ESA to stop our heritage.
    As much as these federal lands benefit the citizens of the United 
States, if we lock them up by denying access, we will lose most if not 
all of the benefits they provide. We must ensure full and fair access 
to federal lands today and in the future.
    New Mexico in particular is blessed with an abundance of natural 
resources. For example, oil and natural gas annually contributes about 
$1 billion into New Mexico's general revenue fund. This is one-quarter 
of the state's annual budget. The Permanent Fund revenue from our 
natural resources pays for about 90 percent of all school buildings and 
other capitol investments, which saves taxpayers an average of $800 
each.
    Mr. Chairman, I believe we can continue to access our federal lands 
to enjoy the cultural and economic values we share and need. We can do 
this through balance and responsibility. However, under the current 
interpretation and enforcement of the ESA is skewed with little or no 
balance, and that is unacceptable.
    I applaud your willingness to come to Southern New Mexico to gain 
firsthand knowledge you can use as we begin to make commonsense changes 
to balance the ESA. No one wants to see a species go extinct, yet we 
must not sacrifice our heritage or our economic prosperity for the sake 
of over-regulation.
    Current regulations and laws are the culprit to why we have 
gasoline over $2 per gallon, and to why we are losing jobs oversees. 
Without real reform of the ESA we will continue to be held hostage by 
high gasoline and energy costs.
                                 ______
                                 
    The Chairman. Thank you.
    I'd like to recognize our panel.
    The Chairman. We have Ms. Alisa Ogden, Mr. Tom Davis, Jeff 
Harvard, Ms. Joanna Prukop, Joe M. Stell, and Jon Tully. Before 
I began the testimony, if I could have you all stand. As a rule 
of the Committee, we swear in all of our witnesses.
    [Witnesses sworn.]
    The Chairman. Thank you very much. You can be seated. Let 
the record show they all answered in the affirmative.
    Welcome to the hearing. I appreciate all of you making the 
effort to be here and to prepare testimony for the hearing this 
morning. Under Committee Rules, your oral statements are 
limited to 5 minutes. Your entire written testimony will be 
included in the record. The lights that are up here on the 
table, it works like a stoplight. Green means go, yellow means 
hurry up, and red means stop. So if when you see the red light 
come on, I'd appreciate it if you'd try to wrap up your 
testimony. But again, your entire written testimony will be 
included in the official record.
    Ms. Ogden, could we begin with you, if you're ready.

         STATEMENT OF ALISA OGDEN, CARLSBAD, NEW MEXICO

    Ms. Ogden. Sure. Mr. Chairman and members of the Committee, 
on behalf of the agriculture industry and all New Mexicans, I 
thank you for holding a field hearing in New Mexico on this 
issue so vital to our livelihoods and futures, and for the 
opportunity to testify before you.
    I am Alisa Ogden. I'm a fifth-generation rancher and third-
generation farmer on the lands my family settled south of 
Carlsbad and Loving. My mother's family established our ranch 
south of Carlsbad in 1890, and my father's father moved to the 
Loving area in 1917 to farm in the newly developed irrigation 
district. In 1981, I returned home to manage the family ranch.
    By 1988, my father was ready to retire, so my brother Craig 
and I became partners in the management of the family farm. We 
have continued to operate the farm since that time. In 
addition, I am a single mother of a 10-year-old son, active in 
my church, philanthropic organizations, as well as agricultural 
organizations.
    I am here today representing southern New Mexico's 
agricultural industry, including the New Mexico Cattle Growers 
Association. And at this time, I'd like to thank Caren Cowan, 
who is the executive director of the New Mexico Cattle Growers 
Association, for helping me in my testimony and for the 
information.
    In theory, the Endangered Species Act has its place in the 
attempt to keep a variety of species from extinction. In 
reality, it has become our worst nightmare come true. The human 
factor has been completely ignored in the decisionmaking 
process. In addition, the use of sound science is not 
encouraged in determining what species are in need of 
protection or the best method in protecting them.
    Too many times personal agendas have taken precedence over 
commonsense decisions in regards to many species. The ESA has 
had tremendous impact on the financial well-being and resources 
of agricultural organizations as well as to individual 
producers like me. New Mexico's livestock industry has spent 
well in excess of half a million dollars in attorney fees alone 
in attempting to protect agricultural producers and their 
rights during the past 7 years. Despite winning a landmark case 
on critical habitat designation in 2001, we have had to 
continue to sue the U.S. Fish and Wildlife Service on the same 
issue time and time again just to obtain compliance with 
Federal law.
    Even more frustrating is the fact at the Federal level, the 
Fish and Wildlife Service has chosen to apply the precedent 
only in the 10th Circuit Court of Appeals, where the case was 
decided, and this case was on a southwestern Willow flycatcher. 
Since 2001, we have won the same case two more times on other 
species, which are the Arkansas shiner and the spikedace and 
loach minnow. Given that New Mexico has some 44 endangered, 
threatened, or candidate animal species and 13 plant species, 
this could be a pretty costly process for producers and their 
trade groups as well as the Federal government.
    The ESA is particularly harsh on New Mexico and other 
western states because of land ownership patterns. New Mexico 
is over 60 percent government owned and made up of a patchwork 
of private, Federal, and state lands. Most of our livestock 
operations contain two, if not all three types of land 
ownership.
    While some say that the ESA does not impact private land 
use, they are wrong. If your ranch is made up primarily of 
Federal lands, Bureau of Land Management or Forest Service, you 
are not allowed to use the Federal portion of that ranch, and 
that makes the private portion useless as a livestock 
operation. Some people in southern New Mexico have become 
almost full-time unpaid employees of the Fish and Wildlife 
Service in an attempt to develop a working plan to address the 
lesser prairie chicken, a candidate species, and keep it from 
being listed as endangered.
    At this point in time, this small bird threatens to destroy 
the ranching and oil and gas industries in this area, which, in 
turn, will destroy our rural economy and our families. And if 
trying to deal with the lesser prairie chicken weren't enough, 
the working group was recently told that they must also 
consider the sand dune lizard. And to add insult to injury, 
last month a beetle was added to their list of concerns.
    We have hardly begun to address the northern Aplomado 
falcon. Nearly 2 years ago, the New Mexico Cattle Growers 
Association attempted to work proactively with the Fish and 
Wildlife Service in the development of a 10J experimental 
nonessential rule that would provide some level of comfort for 
landowners and Federal land users in restoring the bird to the 
region. Unfortunately, budgetary concerns have limited progress 
on the proposal and environmental elitist groups are 
threatening litigation to force the declaration of critical 
habitat.
    There are few on this earth who care for and appreciate 
animals in our environment more than those of us in production 
agriculture. We choose to live frugal lives on the land with 
our animals and the wildlife because we value all they have to 
offer us--a life filled with a wealth that money and material 
possessions can never provide. But we cannot survive under the 
oppressive Federal mandates of the ESA.
    However, we are not unwilling to be part of the solution.
    New Mexico agriculture came together 2 years ago to 
identify potential fixes to the ESA that would protect species 
and our families, and what resulted is the attached 17-item 
list that has been adopted by the Western States Soil and 
Conservation Districts.
    The 2002 Klamath Basin disaster comes to mind for all 
farmers when the worst case scenarios are imagined. 
Overreaction to a water situation ruined the livelihoods of 
many people, not just those in farming. Closer to home, a 
minnow, the Pecos blunt-nose shiner, has had a great effect on 
determining whether and even if water stored in reservoirs on 
the Pecos River will be delivered for use by farmers in the 
Carlsbad Irrigation District.
    In this desert area, there is much data on the most 
efficient delivery of water from the reservoirs upriver. Every 
drop counts in these short water years. It is vital to use the 
most efficient water delivery possible. The Fish and Wildlife 
Service has tried to have an impact on that delivery, and many 
times a great deal of water would have been lost for use by the 
farmers if CID had followed Fish and Wildlife desires.
    For our farm, that means less water to use to produce our 
crops. We do not have supplemental water wells and depend 
solely on water delivered by the CID. Water is our make-or-
break factor. Without the water delivered by CID, we cannot 
survive as farmers. With all that Mother Nature sends our way, 
we do not need shortsighted governmental regulations to battle, 
also.
    A lot of blood, sweat, and frustrations have kept these 
lands together. Most of the time nature was a factor we had no 
control over. We plugged on through and persevered. Every 
person involved in production agriculture expects the weather 
to throw some curves. It is the curves thrown to us by our 
government that may be what, after all these years, defeats us.
    Thank you, once again, for your time and interest, and I 
hope that together we can create a law that achieves the noble 
goal of species protection without harming people like my 
family and me.
    [The prepared statement of Ms. Ogden follows:]

             Statement of Alisa Ogden, Carlsbad, New Mexico

    Mr. Chairman and members of the Committee, on behalf of the 
agricultural industry and all New Mexicans, thank you for holding a 
field hearing in New Mexico on this issue so vital to our livelihoods 
and futures, and for the opportunity to testify before you.
    I am Alisa Ogden. I am a fifth-generation rancher and third-
generation farmer on the lands my family settled south of Carlsbad and 
Loving. My mother's family established our ranch south of Carlsbad in 
1890 and my father's father moved the Loving area in 1917 to farm in 
the newly developed irrigation district. In 1981, I returned home to 
manage the family ranch. By 1988, my father was ready to retire, so my 
brother Craig and I became partners in the management of the family 
farm. We have continued to operate the farm since that time. In 
addition, I am a single mother of a 10-year-old son, active in my 
church, philanthropic organizations, as well as agriculture 
organizations.
    I am here today representing Southern New Mexico's agricultural 
industry, including the New Mexico Cattle Growers' Association (NMCGA).
    In theory, the Endangered Species Act (ESA) has its place in the 
attempt to keep a variety of species from extinction. In reality, it 
has become our worst nightmare come true. The human factor has been 
completely ignored in the decision making process. In addition, the use 
of sound science is not encouraged in determining what species are in 
need of protection or the best method in protecting them. Too many 
times, personal agendas have taken precedence over common sense 
decisions in regards to many species
    The ESA has had tremendous impact on the financial well being and 
resources of agricultural organizations as well as to individual 
producers like me. New Mexico's livestock industry has spent well in 
excess of half a million dollars in attorney's fees alone in attempting 
to protect agricultural producers and their rights during the past 
seven years. Despite winning a landmark case on critical habitat 
designation in 2001, we have had to continue to sue the U.S. Fish & 
Wildlife Service (FWS) on the same issue time and time again just to 
obtain compliance with federal law. Even more frustrating is the fact 
that at the federal level, the FWS has chosen to apply the precedent 
only in the 10th Circuit Court of Appeals, where the case was decided. 
Since 2001 we have won the same case two more times on other species.
    Given that New Mexico has some 44 endangered, threatened or 
candidate animal species and 13 plant species, this could be a pretty 
costly process for producers and their trade groups as well as the 
federal government.
    The ESA is particularly harsh on New Mexico and other Western 
states because of land ownership patterns. New Mexico is over 60 
percent government-owned and made up of a patchwork of private, federal 
and state lands. Most of our livestock operations contain two, if not 
all three types of land ownerships. While some say that the ESA does 
not impact private land use, they are just wrong. If your ranch is made 
up primarily of federal lands, Bureau of Land Management (BLM) or U.S. 
Forest Service (USFS), and you are not allowed to use the federal 
portion of that ranch, the private portion is useless as a livestock 
operation.
    Some people in Southern New Mexico have become almost full-time 
unpaid employees of the FWS in an attempt to develop a working plan to 
address the lesser prairie chicken, a candidate species, and keep it 
from being listed as endangered. At this point in time, this small bird 
threatens to destroy the ranching and oil and gas industries in this 
area, which will in turn destroy our rural economy and our families. 
And if trying to deal with the lesser prairie chicken weren't enough, 
the working group was recently told that they must also consider the 
sand dune lizard. To add insult to injury, last month a beetle was 
added to their list of concerns.
    We have hardly begun to address the Northern Aplomado Falcon. 
Nearly two years ago the NMCGA attempted to work proactively with the 
FWS in the development of a 10J experimental-nonessential rule that 
would provide some level of comfort for landowners and federal land 
users in restoring the bird to the region. Unfortunately, budgetary 
concerns have limited progress on the proposal and environmental 
elitist groups are threatening litigation to force the declaration of 
critical habitat.
    There are few on this earth who care for and appreciate animals and 
our environment more than those of us in production agriculture. We 
chose to live frugal lives on the land with our animals and the 
wildlife because we value all they have to offer us--- a life filled 
with a wealth that money and material possessions can never provide. 
But we cannot survive under oppressive federal mandates like the ESA.
    However, we are not unwilling to be a part of the solution. New 
Mexico agriculture came together two years ago to identify potential 
fixes to the ESA that would protect species AND our families. What 
resulted is the attached 17-item list that has been adopted by the 
Western States Soil Conservation Districts.
    The 2002 Klamath Basin disaster comes to mind for all farmers when 
the worst case scenario is imagined. Overreaction to a water situation 
ruined the livelihood of many people, not just those in farming. Closer 
to home, a minnow, the Pecos Blunt-nose Shiner, has had a great effect 
on determining when, and even if, water stored in reservoirs on the 
Pecos River will be delivered for use by farmers in the Carlsbad 
Irrigation District (CID). In this desert area, there is much data on 
the most efficient delivery of water from the reservoirs upriver. Every 
drop counts and in these short water years, it is vital to use the most 
efficient delivery of water possible. The FWS has tried to have an 
impact on that water delivery, and many times, a great deal of water 
would have been lost for use by the farmers in the district if CID had 
followed FWS desires.
    For our farm, that means less water to be used to produce our 
crops. We do not have supplemental water wells and depend solely on 
water delivered by the CID. Water is our make or break factor, without 
the water delivered by CID, we cannot survive as farmers. With all that 
Mother Nature sends our way, we do no need shortsighted governmental 
regulations to battle also.
    A lot of blood, sweat and frustrations have kept these lands 
together. Most of the time, nature was the factor we had no control 
over. We plugged on though and have persevered. Every person involved 
in production agriculture expects the weather to throw some curves. It 
is the curves thrown to us by our government that may be what, after 
all these years, defeats us.
    Thank you once again for your time and interest. I hope that 
together we can create a law that achieves the noble goal of species 
protection without harming people like me and my family.
                                 ______
                                 

 NEW MEXICO'S PROFESSIONAL AGRICULTURAL PRODUCERS SUGGESTED CHANGES TO 
      THE FEDERAL ENDANGERED SPECIES ACT OF 1973 AND ALL REVISIONS

The Endangered Species Act must:
     1.  Provide full compensation to individuals for current and long-
term ``takings''. Take into consideration cost -benefit analysis and 
mitigate for all adverse economic, social and cultural needs of the 
human element. (change Section 4(bx2) of ESA)
     2.  Consider and evaluate cumulative effects in accordance with 
the National Environmental Policy Act (NEPA) for recovery planning and 
designation of critical habitat. Single species management does not 
consider ecosystem needs and may be detrimental to the well being of 
other organisms. (add to Section 4)
     3.  Focus on species recovery instead of single species listing. 
Listing should be incentive based rather than regulatory. (add to 
subsection (c) of Section 4 and a new statement to Section 4)
     4.  Define; ``science'' and ``peer review''. Ensure that non-
governmental, non-bias peer review is mandatory prior to the listing of 
any species.
     5.  Be revised so the citizen lawsuit provision requires the loser 
of any lawsuit pertaining to the ESA be totally responsible for all 
alleged costs to the Government, defendants and interveners. (revise 
Section 11(g))
     6.  Require appropriate bonding by any petitioner for a proposed 
listing of a species. Bond to be forfeited if a species is determined 
not warranted to be listed. Financial burden of any listing must be 
borne by the petitioner whether individual, organizational, or 
governmental. (add to Section 4(b))
     7.  Ensure agency regulations conform to ESA law. (ex.: adhere to 
critical habitat provisions)
     8.  Transfer recovery planning from the United States Fish and 
Wildlife Service (USF&WS) to the States. (add to Section 4(f) and 
Section 6)
     9.  Transfer critical habitat designation responsibilities from 
the USF&WS to the States. Confine critical habitat to realistic peer 
reviewed boundaries. (amend Section 4(b)(2) and Section 6)
    10.  Codify applicant status to make clear that permit applicants 
(consists of any individual seeking a Federal permit or license) are 
provided the opportunity of direct involvement in the Section 7 
process. (amend Sections 6 and 7(a) and (d))
    11.  Not prevent implementation action of any project or activity 
prior to completion and formal approval of a Recovery Plan. (amend 
Section 7(a))
    12.  Reserve and limit Section 7 consultation to land management 
planning level documents. (add to Section 7(a))
    13.  Eliminate the proposed listing of any sub-species. (amend 
Section 3(16))
    14.  Not allow taxpayer funds to be utilized to sue the Government 
or others. (add to Section 1(c)(4) as new policy, and amend Section 
11(9)(g))
    15.  Change the criminal penalty law to a civil violation. (Section 
11)
    16.  Codify the delisting process. (add new subsection under 
Section 4)
    17.  Revise the ``taking'' definition to protect private and 
states' property rights in conformance with the United States 
Constitution. (Section 3(19))
                                 ______
                                 
    The Chairman. Thank you. Mr. Davis.

               STATEMENT OF TOM DAVIS, MANAGER, 
                  CARLSBAD IRRIGATION DISTRICT

    Mr. Davis. Again, thanks, Chairman Pombo, for having a 
field hearing here in Carlsbad and giving us local folks, who 
have had some experience with the Endangered Species Act, a 
voice. I'm the manager of the Carlsbad Irrigation District and 
have been since 1987. Prior to that, I worked for the U.S. 
Forest Service. I had a rather fast-paced career on track with 
the Forest Service.
    But in those days, being younger, I was somewhat 
idealistic, and one of the reasons I left the Forest Service is 
because of just some of the things you said. It was no longer 
an agency that did sound resource management. It was an agency 
totally driven by lawsuits resulting from the Endangered 
Species Act. And it was very unfortunate, but over time, a lot 
of people that are good resource managers left the Forest 
Service or became so frustrated they were of no use to the 
Forest Service. And that goes for a lot of other government 
agencies, Bureau of Reclamation, Bureau of Land Management, so 
forth.
    You see a map here in front of me. The heavy line on that 
map outlines the basin of the Pecos River in New Mexico. The 
bottom of that map is the Texas state line. The Pecos River 
originates in the high country just outside of Santa Fe, New 
Mexico, in what's known as the Pecos Wilderness. It runs in a 
south-southeasterly direction through New Mexico and Texas, and 
culminates into its confluence with the Rio Grande just above 
Lake Amistad just north of Del Rio.
    All the water that you see in the reservoirs that are 
depicted on that map are stored for the use of the Carlsbad 
Irrigation District, and we've been in existence in one form or 
another since before the turn of the century.
    Some of these reservoirs that you see are second-generation 
reservoirs, they've replaced reservoirs that were built over 
100 years ago that have filled with silt or were no longer 
functional and stable as flood control structures and 
irrigation storage structures because of their construction 
during those times. And we've constructed more modern 
reservoirs of which we are very, very protective of keeping the 
storage capacity available in those reservoirs, because we 
realize that in today's climate, it's very difficult, if not 
impossible, to build new reservoirs, as you're experiencing out 
there in the central valley in some of your upland watersheds. 
So we're very protective of preserving that storage so that our 
reservoirs will last another 100 years, 150 years. We don't see 
any likelihood of building new ones.
    Just quickly to get through what we do here and our 
interrelationship with Endangered Species Act. We store water 
in those reservoirs and we try for efficiency of storage and 
delivery of water, delivery of water to keep our water stored 
in the upper reservoirs as long as possible, because there is 
less evaporation loss in the upper reservoirs as there are down 
in the reservoirs near this area.
    All of our farmland begins here in Carlsbad and runs 
southeasterly down the valley toward the state line of Texas, 
and we deliver with flood irrigation through open, concrete-
lined canal systems. So in today's world, we are not very 
efficient. But in the type of the low quality water, the high 
saline water that we deal with on the Pecos, this is the only 
system, irrigation system that we can function. We can't 
sprinkle with saline water, obviously, you kill plants.
    So we're a gravity-flow flood control system, and we move 
water from the upper reservoirs you see to the lower 
reservoirs, and have since the 1930s, in block releases. We 
release a tremendous amount of water for a short period of time 
down the river to the lower reservoirs, and that's the most 
efficient way. If we start trickling that water down river, we 
lose 60, 70, 80 percent of the water, depending on the release. 
Even with our block release, we lose 25 percent of the water. 
And we've operated the river in that respect since the first 
upstream reservoir was built in Sumner, Sumner Reservoir, just 
above the village of Fort Sumner. It was completed in 1937. 
We've operated the river since then in that fashion.
    The Pecos bluntnose shiner was listed in 1987 as a 
threatened species, and it's a small minnow, very similar to 
the silvery minnow on the Rio Grande. And it is very difficult 
to identify even with experienced biologists because there are 
several minnows that look very similar; their reproductive 
habits are very similar; the physiological requirements are 
very similar.
    And, in fact, when the Pecos bluntnose shiner population is 
counted, they are counted as a percentage of the whole. They 
don't even count them separately. So it's a very complex, 
difficult issue to get a handle on.
    And I see that I'm out of time, so I want to make a few 
quick statements, just philosophical about the Endangered 
Species Act. After having been involved with it since its 
inception in 1972, I was just a young man recently out of 
college at that time, in fact, it was one of my first years on 
the job. And I've seen the attempts to make it reasonable, to 
make it functional, to reauthorize it, and I applaud you in 
your efforts, Chairman Pombo. I have followed very closely some 
of the things you're attempting to do.
    But let me just quickly take some of our personal 
experiences here on the Pecos. You know, we've done everything 
possible since 1992 to cooperate with the Fish and Wildlife 
Service biologists in our operation of the dam, and let me say 
this. It was immediately assumed after the listing that the dam 
was the problem. The fact of the matter on the Pecos, all the 
water flowing into Santa Rosa Dam and into Sumner Dam is 
bypassed through Sumner Dam 24 hours day.
    All those base flows are bypassed through the dam. So the 
river is actually operating as if the dams weren't there. We 
only store flood control. We only store flood flows in the 
reservoir. The base flows pass through. But it was 
automatically assumed by those implementing the Act that the 
dam was the problem.
    And we have made every possible effort for the last 12 
years to cooperate with different release scenarios and 
different operation to benefit the minnow. We were told within 
the last 3 months that actually the minnow population is less 
now than it was 12 years ago when we began trying to cooperate. 
So what's the point?
    Also, within the last 6 years, the Interstate Streams 
Commission, who has a stake in this effort because they have to 
satisfy the compact needs of the State of Texas, hired a 
private biology firm, who employed some nationally recognized 
fish biologists, who did their own study over about a 5-year 
period on the Pecos. They found a lot of things different than 
what Fish and Wildlife Service biologists had led us to belief; 
that the minnow, the habitat requirements are somewhat 
different than we were led to believe. They actually occupy 
different reaches of the river and different microecosystems 
within the river. And they've even found the minnow in reaches 
of the river we were told that they couldn't live in.
    So where does that leave a layman like myself that doesn't 
understand much, but has really attempted to cooperate? We 
don't really know what the shiner's real situation is. I mean, 
that's my opinion. No one really knows. No one knows what the 
populations were 300 years ago and no one knows what the 
populations are today. I'm of that opinion.
    So all we've been able to do here through 12 years of 
intense cooperation--and I think this is common throughout the 
west, and I know this is the theme that Alisa expressed and you 
expressed it--but in my opinion, all we've done here is spend 
millions of dollars and fretted and fought to try to preserve 
our water and make it more available to our farmers, at the 
same time doing these different scenarios to try to learn what 
benefits the minnows, and we find that the minnows, there are 
less of them now than there were.
    This is common throughout the west. The Endangered Species 
Act, in any opinion, has done that. All we've done is crippled 
the western economies. We haven't necessarily benefited any 
species. Look at the delisting. We've delisted very few 
species, and those that we have delisted, some megamoney 
species like the bald eagle, American alligator, grizzly bear, 
in my opinion, that has come about as a result of different 
attitudes as far as enforcement of not killing those animals 
than it has been on not cutting timber so they can have better 
habitat.
    It's resulted more from an enforcement thing that it has 
habitat manipulation. And the west can't continue to exist 
economically out here if we keep living with the pressures of 
this Endangered Species Act. I have a lot of other comments, 
and I realize I'm out of time. But I appreciate the 
opportunity, and my full written testimony is available to 
staff. Thank you.
    [The prepared statement of Mr. Davis follows:]

                  Statement of Tom W. Davis, Manager, 
           Carlsbad Irrigation District, Carlsbad, New Mexico

    I am Tom W. Davis. Since 1987 I have been the Manager of the 
Carlsbad Irrigation District. For the sixteen years prior to my current 
employment, I was employed by the U.S. Department of Agriculture Forest 
Service in the field of natural resources management. I have a B.S. 
degree from Oklahoma State University.
    The Carlsbad Irrigation District is authorized to store 176,500 
acre feet of water in four reservoirs on the Pecos River. These are 
proceeding from the northern most reservoir and moving downstream: 
Santa Rosa, Sumner, Brantley and Avalon. CID delivers water through a 
gravity flow canal system to 25,055 acres of agriculture lands 
scattered throughout the valley southeast of Carlsbad, NM. In order to 
minimize evaporation losses of the stored water, the water is kept in 
upstream reservoirs as often and as long as possible. The stored water 
is moved from upstream reservoirs to downstream reservoirs as 
efficiently as possible by making block releases. That is, the water is 
released at the maximum river channel capacity of 1,400 cubic feet per 
second which is about 2,800 acre feet in a 24-hour period. 
Historically, these releases lasted 15 to 20 days. These high flow 
releases minimized evaporation and stream bank losses. This release 
practice has been used since Sumner Dam was built in 1937.
    CID only impounds the flood flows in Santa Rosa and Sumner from 
March through October each year. The natural base flows above these 
reservoirs are passed through Sumner for diversion by the Fort Sumner 
Irrigation District. So, for eight months of the year, the Pecos River 
flows below Sumner Dam unimpeded by Santa Rosa or Sumner Dams. The 
river flows as if the dams weren't there.
    The Pecos Bluntnose Shiner was listed a threatened species to be 
protected under the Endangered Species Act in 1987. Critical habitat 
for the shiner was designated in the 70-mile reach of the river below 
the village of Fort Sumner. The river is wide and meandering with a 
sandy bottom throughout this reach. This is believed to be preferred 
habitat for the shiner.
    Immediately after listing the shiner as threatened, the U.S. Fish 
and Wildlife Service biologists took the position that the historical 
operation of Sumner Dam was responsible for reducing the shiner 
population to a threatened status even though the base flow of the 
Pecos River is released through Sumner Dam. It seemed to me that it was 
predetermined that the dams were the cause of the shiners demise.
    Since 1992, the CID has cooperated to the extent possible with the 
U.S. Fish and Wildlife biologists requests to experiment with different 
operation scenarios at Sumner Dam that might benefit the shiner. 
Currently, we are governed by a three-year Biological Opinion that 
expires in 2006 that outlines the release operations of Sumner Dam. Yet 
we are told by the biologist that despite the modifying of normal 
release operations and meeting target flows through the critical 
habitat, the shiner population is still declining.
    If it is true that the population is in decline, one could raise 
several questions. The operation or existence of Sumner Dam may not be 
the paramount influence on shiner survivability. Their population could 
be more influenced by other factors. It could be that we don't know 
enough about the shiner population numbers over a long period to 
accurately understand and measure both past and present population 
numbers or population trends. Maybe we don't understand enough about 
the shiners habitat needs to manage for its survival, not to mention 
de-listing.
    My point is that we are not making any progress after 12 years of 
manipulating the system and spending millions of taxpayer's dollars to 
study and to meet the shiners supposed needs.
    Is it possible the shiner is doomed? Thousands of other species 
have become extinct without the influence of humans. Is it possible the 
shiner is cyclic and there are as many today as there were 300 years 
ago? Is it possible the shiner should have never been listed? I could 
continue on with these possibilities.
    A private firm who employ nationally recognized fish biologists was 
hired by the New Mexico Interstate Stream Commission to make an 
independent review of the literature and study of the shiner in the 
Pecos River. They have, after extensive sampling, concluded that the 
shiner has different habitat preferences, different populations and 
survivability than was published by U.S. Fish and Wildlife biologists. 
They have also found shiners in reaches of the river where we were told 
they could not survive.
    So, what is the shiner's real situation? No one knows!
    This is the very same situation that implementation of the 
Endangered Species Act presents throughout the west.
    Very expensive attempts at implementing the ESA to improve the 
plight of listed species have in nearly all instances been 
unsuccessful. The cost to local economies throughout the west is in the 
millions. Yet, the benefits to the listed species are negligible. Just 
review how few have been de-listed.
    No civilized nation desires to sit by while species go extinct. 
There is no doubt, our nation has spent more and tried harder to deal 
with the problem than anyone throughout the history of mankind. But it 
is not working. We are just spending money and crippling economies.
    We must make a change for the better.
    I hope the American people can support Congress in making the 
necessary changes to the ESA so that it will serve the needs of our 
economy and society at the same time in finding a way to actually 
benefit species that may be in jeopardy.
    There are throughout the west a number of people who have much more 
experience than I do and who have been impacted by implementation of 
the ESA. Due to our experience we have many ideas on how to make 
positive changes in the Act.
    If Congress is sincere in making the ESA truly functional, they 
need to draw on the experiences of westerners who continue to struggle 
to implement the Act and at the same time, preserve their livelihoods. 
These field hearings may be one method where Congress can gain exposure 
to those in the west who can be helpful in suggesting positive changes.
    Thank you for the opportunity to comment.

    [A map attached to Mr. Davis' statement follows:]

    [GRAPHIC] [TIFF OMITTED] T4066.001
    
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Harvard.

          STATEMENT OF JEFF HARVARD, PAST PRESIDENT, 
        INDEPENDENT PETROLEUM ASSOCIATION OF NEW MEXICO

    Mr. Harvard. Chairman Pombo and Representative Pearce, I am 
Jeff Harvard, president of Harvard Petroleum Corporation. I'm 
one of those unpaid staff members that is on the stakeholders 
group for the lesser prairie chicken, the sand dune lizard, and 
whatever else they decide to throw at us. And I'm here today to 
discuss the impact of the Endangered Species Act on the oil and 
gas industry in southeastern New Mexico.
    Without question, the current ESA has had and is having a 
tremendous negative impact upon our industry. Companies large 
and small are questioning whether it is worth it to continue 
fighting the unrelenting wave of restrictions and regulations 
due to species after species being proposed for listing.
    The current Endangered Species Act is a failure that has to 
date not saved a single species and is in need of immediate 
change, as you're well aware of. It must be changed because 
events are coming together to potentially drive ranching and 
oil and gas in southeastern New Mexico to the point of 
extinction. While many would question this, you can look at the 
lumber industry and see that the threat is real.
    Good riddance, many would say, they are destroying the 
environment. But what happens when these same people have to 
pay double or triple the cost for gasoline, food, power, 
heating and cooling, clothing, building materials, and et 
cetera? I wonder how they would like that environment?
    Science fiction is drowning out real science. Today, 
perception and opinion are called truth. The adage of saying 
something often enough makes it factual and true is all too 
prevalent in these times. The lesser prairie chicken, the sand 
dune lizard, and the Aplomado falcon are some of the species 
that are being used to remove access to public lands in 
southeast New Mexico. This loss of access leads to a loss of 
production, loss of production leads to a loss of revenue to 
the Federal and state governments, and costs us, the taxpayer.
    Ranching and oil and gas are faced with continual pressure 
to remove more and more lands from leasing, and severely 
restrict grazing in the name of preserving habitat. In the case 
of the lesser prairie chicken, this is occurring even though 
more birds have been sighted during that time when the habitat 
is in very poor shape because of a sustained drought.
    There has been very little, if any, peer-reviewed science 
that pinpoints oil and gas activity as causing a reduction in 
the chicken or the lizard population. Regardless of credible 
science, lands continue be to withheld from leasing and 
continued regulations and restrictions continue to be imposed 
in RMPs.
    I'm a member of the lesser prairie chicken workgroup, and 
we've been working for over a year trying to address real 
tangible opportunities and ideas to help the chicken. One of 
those ideas is a reintroduction of the species of the prairie 
chicken down on the WIPP site. And Chris is here today. She has 
a large ranch and her family has a large ranch that they are 
willing to work and use for that reintroduction.
    That idea was really kind of not received well within many 
of the regulatory agencies in the group. However, they are 
proceeding anyway. I would encourage you and Representative 
Pearce to seriously hear them and as they seek funding to 
pursue this endeavor. We'll get you some additional information 
on that.
    One of the other species that we're hearing about lately is 
the Aplomado falcon. And in relation to the Otero Mesa 
discussion, the environmental community is claiming that the 
Otero Mesa area is prime habitat for the falcon and must be 
protected. The problem is that according to an August 1992 U.S. 
Fish and Wildlife report, suitable habitat should have 19 trees 
per one acre, as well as many other criteria.
    Otero Mesa does not meet these criteria. From 1990 to 1999, 
there have been only nine falcon sightings in New Mexico. In 
2001 no nests have been verified in the United States since 
1952. BLM officials indicated that there was one nesting 
discovered a few years ago near Deming but it was unsuccessful.
    So what should be done? The legal authorization for the ESA 
expired over 10 years and Congress has done nothing but provide 
funding ever since. It would be very difficult to refuse to 
reauthorize the Endangered Species Act, but it is possible to 
go back to the original 1969 Act by removing sections 4, 7, 9, 
and 11(g). This is one way to stop the abuses of the Endangered 
Species Act.
    Recently, news media has been reporting on the large amount 
of leased land that has not been developed. The major reason 
for this is the regulatory restrictions caused by the 
Endangered Species Act. Without access to the land to explore 
for new reserves, our nation's producing capability will 
decline at an even greater rate while our demand for oil and 
gas continues to increase.
    The inescapable conclusion is higher prices for all 
commodities due to pervasive need for energy in those areas. 
Our nation's need for more energy will demand an increase in 
the importation of foreign oil and gas and weaken our economy 
with greater trade deficits. Recent events have proven time 
after time that many of these foreign countries are very 
unstable and do not look kindly upon our great nation.
    Everything reasonably possible must be done to ensure that 
our nation has the resources that it needs. The oil and gas 
industry in southeastern New Mexico has been providing a 
continuous source of energy for this nation for over 80 years 
with little or no impact on all species. Our industry is 
committed to improving our operation to minimize any impact on 
the environment. We continue to meet with and work with the 
various groups to identify ways that we can help threatened 
species. But the Endangered Species Act must be changed to more 
accurately reflect the needs and responsibilities of this state 
and this nation. Thank you.
    [The prepared statement of Mr. Harvard follows:]

              Statement of Jeff Harvard, Past President, 
            Independent Petroleum Association of New Mexico

    Chairman Pombo and Distinguished Committee Members,
    I am here today to discuss the impact of the Endangered Species Act 
(``ESA'') on the oil and gas industry in southeastern New Mexico. 
Without question, the current ESA has had and is having a tremendous 
negative impact on our industry. More and more time and energy is being 
drained from our everyday business activities to identify, analyze, 
evaluate, discuss and address ESA issues. I personally am spending more 
that 25% of my time dealing with ESA issues and I am getting tired. The 
playing field is continually moving; rules and regulations are 
continually changing. I am not alone in my sentiment that it is getting 
to the point where it is not worth the hassle. Companies large and 
small are questioning whether it is worth it to continue fighting the 
unrelenting wave of restrictions and regulations due to species after 
species being proposed for listing.
    The current Endangered Species Act is a failure that has not saved 
a single species and is in need of immediate change before it does any 
more mischief. It must be changed because events are coming together to 
potentially drive ranching and oil and gas in New Mexico to the point 
of extinction. While many would question this, you can look at the 
lumber industry and see that the threat is real. Good riddance many 
would say. ``They are destroying the environment.'' But what happens 
when these same people have to pay double or triple the cost for 
gasoline, food, power, heating and cooling, clothing, building 
materials, etc. Or, worse yet, not have any of these necessities. How 
loud would the cry be if the trade deficit doubled and this nation was 
held hostage by foreign nations that have made their dislike of the 
Unites States clear. I wonder how they would like that ``environment''.
    The cartoon below from the 6/2/04 Albuquerque Journal speaks 
volumes about the issue we are examining today. Science fiction is 
drowning out real science. Science of old, where something was studied, 
data collected and unbiased truths were discovered and reported has 
been replaced with political science where a pre-determined outcome or 
opinion is identified and data, if any, is manipulated to reach the 
political truth desired. Today, perception and opinion are called 
truth. The adage of ``saying something often enough makes it factual 
and true'' is all too prevalent in these times.
    It is very apparent that groups trying to list species under the 
Endangered Species Act are assaulting the financial support of New 
Mexico, the very existence of local ranchers and oil and gas operators, 
and threatening our national security. Five years ago a group of 
environmental foundations decided there should be an ANWR is every 
state. Two key weapons that they are using are NEPA and the ESA. While 
NEPA is not the subject of this hearing, it is important to understand 
that the motivation behind these groups is to obstruct and remove lands 
from any multiple use and return them to wilderness.
    The Lesser Prairie Chicken, the Tiger Beetle, the Sand Dune Lizard, 
the Black Tailed Prairie Dog, the Aplomado Falcon, the Roswell 
Springsnail, the Koster's Tryonia, the Pecos Assiminea and Noel's 
Amphipod are all species that are being used to remove access to public 
lands. This loss of access leads to a loss of production that leads to 
a loss of revenue that causes a greater deficit due to the necessity of 
importing more foreign oil and gas and other commodities resulting in a 
serious national security problem. Below are examples of the impact 
from each of these species.
Lesser Prairie Chicken and Dune Sagebrush Lizard
    The limited chicken population in New Mexico is on the edge of the 
historic range and therefore subject to greater increases and decreases 
in population due to natural forces (drought, predation and disease) 
rather than human activity. However, because SE New Mexico has the most 
federal land in the five states with chicken habitat it has become a 
main targeted area to ``save the chicken''. Industry members have been 
meeting with various workgroups to identify ways to assist the chicken 
population for years. For over 20 years the BLM has been imposing 
timing stipulations that restrict drilling and workover activity for up 
to a quarter of the year in much of Lea, Eddy and Chaves Counties. 
These restrictions for chicken mating were imposed and not removed even 
though many of the areas had no chicken sightings or activity.
    Environmental groups recently filed a petition with BLM to create 
an Area of Critical Environmental Concern in the middle of the oil 
field in southeastern NM. The ACEC includes over 343,000 acres and 
proposes to restrict any grazing and drilling for oil and gas to 
protect chicken habitat.
    For over a year a government promoted shinnery oak habitat 
workgroup that includes regulatory agencies, environmentalists, 
ranching, and oil and gas has been working very hard to identify ideas 
and plans to help the prairie chicken and the dune sagebrush lizard. 
After a year's work on ways to help the chicken and lizard and keep it 
from being listed, we were disturbed to hear a BLM representative tell 
the group that there may not be anything we can do about a listing 
because of the Tiger Beetle that hasn't been addressed yet and also the 
prairie dog. The industry was also just informed that, contrary to what 
we were led to believe, the Carlsbad and Roswell districts are amending 
their RMPs relating to oil and gas and endangered species even though 
the workgroup has not completed its document. Ranching and oil and gas 
are faced with continual pressure to remove more and more lands from 
leasing and severely restrict grazing in the name of preserving 
habitat. This is occurring even as it appears that more and more birds 
have been sighted during a time when the habitat is in very poor shape 
due to the sustained drought.
    We also have another problem because the reported habitat 
conditions for the chicken are different than the lizard. In the case 
of both species, specific science is lacking concerning the affect of 
oil and gas activity. There has been very little, if any, peer-reviewed 
science that pinpoints oil and gas activity as causing a reduction in 
the chicken or lizard population. Regardless of credible science, lands 
continue to be withheld from leasing, stipulation restrictions continue 
to be imposed and RMPS amended.
    Concerning the Dune Sagebrush Lizard, producers have been required 
by the Carlsbad office to move sand dunes and to limit the number of 
wells in a section to 13, because Charlie Painter, NMG&F biologist, 
thinks that is the most that should be allowed. But there are questions 
about where habitat really exists. The 1994 Distribution field report 
found dune sagebrush lizards in 51% of the habitat the researchers 
considered suitable. A concentration of areas along the Lea-Eddy County 
line were considered to be very good habitat but contained no lizards. 
Conversely, the lizard was observed at 100% of the evaluated sites 
considered not to be potential habitat in dune grassland. On a March 
30, 1994 telephone conference, Dr. Rob Gordon of Environmental Issues 
Council said that habitat is only suitable if the lizard lives there.
Aplomado Falcon
    In 2002, The Carlsbad BLM Office removed 82,014 acres of minerals 
south of Hope, NM, some of which were nominated for leasing by oil and 
gas producers in the January and April sales. Questions were raised on 
this withdrawal and Leslie Theiss, Carlsbad Field Manager, explained 
the withdrawal in a letter dated April 16, 2002 to the members of the 
BLM/Industry Working Group. The oil and gas industry asked for a 
description of the economic impacts statement required by Executive 
Order 13212.
    Federal Land Policy and Management Act of 1976, 43 U.S.C. 1701 
requires BLM to manage land for multiple use and sustained yield. 
Multiple use and sustained yield do not exist when the two major users 
and income producers on federal lands are restricted or denied 
operations due to the Aplomado Falcon which has only nested once in 
southern New Mexico for over 50 years. USF&W in a Section 10j under the 
ESA notice said the bird ranges from near the Mexican border south to 
Argentina. Additionally the letter says that data needs to be collected 
on habitat quality before consultation begins. The BLM was protecting 
an area that has not been established as habitat. BLM finally relented 
and leased the area, but with stipulations.
    The Aplomado Falcon is also prominent in the Otero Mesa discussion. 
The environmental community is claiming that the Otero Mesa area is 
prime habitat for the falcon and must be protected. The problem is that 
according to USFWS in August 1992, suitable habitat consists of inter-
tree distances of 30m (avg.), tree densities of 19 trees/40 ha (avg.), 
tree height of 9 m (avg.), and 92% ground cover at 0.7m off the ground 
and 70% at 0.5m. This does not sound at all like the Otero Mesa. In 
2001, no nests had been verified in the U.S. since 1952, when a nest 
was reported near Deming, NM. From 1990 to 1999 there have been only 9 
falcon sightings in NM. BLM officials indicated that there was one 
nesting discovered a few years ago near Deming but it was unsuccessful 
due to assumed egg predation.
Roswell Springsnail, Koster's Tryonia, Pecos Assiminea and Noel's 
        Amphipod
    A number of snails in and around the Pecos River have been listed 
and as a result oil and gas activities have been restricted. BLM is 
holding APDs because the drilling of wells might develop a leak that 
might get into the water table and might reach the Bitter Lakes Refuge. 
Bill Radtke, supervisor at Bitter Lakes, said, at the first snail 
meeting in October 1996, that the biggest threat to the snails is the 
dropping water table. In the handouts from this October meeting, there 
was a list, citing ``Wilson 1981'', of the major existing sources of 
potential ground water contamination in New Mexico and the only oil and 
gas activity listed is oil or gas refining. The only refinery is 
downstream some 40 miles south of Bitter Lakes.
    The New Mexico Oil Conservation Division wrote EPA and said there 
are no proven cases of water pollution resulting from oil and gas 
activities in New Mexico. The Roswell water basin is connected to the 
Refuge. The water on the Refuge is not fit for drinking and is more 
saline than the ocean. It has become more saline since the 1940s. Since 
the river has a higher saline content and the wells in the area are 
lower in saline content and used for irrigation and drinking, the 
Refuge must be recharged by the Pecos. Therefore, these facts indicate 
that contamination from drilling wells is not a problem so there is no 
basis to indicate that the oil and gas activity north of Roswell poses 
a threat to the snails. Regardless, the BLM continues to prohibit 
drilling near the refuge.
The ESA has been a failure.
    The Endangered Species Act must be changed because it has been a 
complete failure. Further, the damage caused by regulatory restrictions 
and land withdrawals is incalculable.
    Dr. Michael Coffman wrote the following August 2, 2003:
    ``For three decades, environmental purists have actively promoted 
the pantheistic notion that plant and animal life rank higher on the 
species hierarchy than people. Their ``return-to-the-wild'' agenda 
argues that human life activities are the enemy of plant and animal 
species, and only through their efforts to halt growth and shut down 
people's normal and necessary life endeavors will Mother Earth smile 
again.
    Federal environmental regulations like the ESA have destroyed the 
lives of tens of thousands of people, closed entire communities, and 
confiscated hundreds of millions (if not billions) of dollars of 
private property, all in the name of protecting the environment. 
Michael Kelley of the Washington Post Writers Group describes the 
brutality of the ESA in the July 11, 2001, issue of MSNBC:
    ``The Endangered Species Act...has been exploited by environmental 
groups who have forged from it a weapon in their agenda to force humans 
out of lands they wish to see returned to a pre-human state.''
    Of the sixty species that have been de-listed and supposedly 
`recovered,' twelve were actually extinct, thirty were incorrectly 
listed in the first place or had data errors, twelve were recovered due 
to actions resulting from other laws or private efforts (not the ESA), 
and the balance were de-listed due to management of U.S. Wildlife 
Refuges. The ESA has not been responsible for recovering even a single 
species.''
    The Partnership for the West noted that the Endangered Species Act, 
in its 30-year history, has had a 99 percent failure rate in restoring 
species to health. On the other hand, the Partnership said, the ESA 
``has a high rate of success as a tool to confiscate private property, 
discourage private conservation efforts that actually conserve species 
and habitat, devastate rural communities, curb economic growth and 
destroy jobs.''
What should be done?
    There must be action right now to revise the current Endangered 
Species Act. The first Endangered Species Act was passed in 1966 in 
response to Rachel Carson's book Silent Spring. The Act directed all 
federal agencies to identify native fish and wildlife threatened with 
extinction. Federal agencies were provided money by Congress to 
purchase habitat for endangered species and to protect the species. In 
1969 the ESA was amended to also protect invertebrates. The last change 
occurred in 1973 and this is the Act commonly referred to in the media. 
The 1973 Act added Section 4 that said species will be listed without 
reference to possible economic or other impacts. In 1978 the Supreme 
Court held that a listed species must be protected at whatever cost. 
Section 7 of the EAS prohibits any federal action that will jeopardize 
a listed species or substantially modify its habitat. Section 9 
prohibits the taking of a listed species and defines a take to include 
actions that will annoy to such an extent as to significantly disrupt 
essential behavior patterns. It is this section that has cost the 
federal government, actually us, the taxpayer, millions of dollars in 
takings lawsuits.
    The definition of ``taking'' must change. The U.S. Supreme Court 
legitimized this convoluted interpretation on June 29, 1995 in Babbitt 
v. Sweet Home Chapter of Communities for a Great Oregon. In doing so, 
the Court ruled that the word ``take'' included altering the habitat of 
an endangered species thereby allowing the government to take private 
land for an endangered species without paying for it.
    Writing for the Heritage Foundation on November 18, 1998, Alexander 
Annett notes that: ``Because of the Supreme Court ruling, the ESA 
empowers the federal government to regulate any land that is thought to 
provide ``suitable habitat'' for an endangered species without proof of 
death or injury to an identifiable animal that was caused by the 
landowners.'' As evidenced in Klamath Falls, zealous bureaucrats can 
impose arbitrary and capricious habitat recovery plans on private 
property that instantly strips the value often their life savings from 
a landowner.
    The Federal Government should be required to pay for takings of 
private property. The ESA costs multiple billions of dollars annually, 
but the landowners who happened to have the last critical habitat 
needed by a species shoulders most of that cost. This is neither fair 
nor just when the reason the species is endangered results primarily 
from nature and secondarily from the actions of society as a whole. The 
only solution is for federal agencies to pay just compensation to 
landowners adversely affected just as the U.S. Constitution supposedly 
requires.
    Paying for the huge costs of implementing the ESA would expose the 
real cost to the taxpayers footing the bill, forcing the USFWS and 
other agencies to prioritize what species must receive protection to 
allow for their recovery, while putting less emphasis on those species 
that are not in real jeopardy.
    The legal authorization for the ESA expired in October 1992 and 
Congress has done nothing but provide funding since. It would be very 
difficult to refuse to reauthorize the ESA, but it might be possible to 
go back to the 1969 Act. That could be done by taking out Sections 4, 
7, 9 and 11g. This is one way to stop the abuses of the ESA.
    Other suggestions to make the ESA workable would be to use only a 
biological and numerical definition of endangered species. Only a pure 
species can be classified, no sub-species or distinct populations. Only 
those species with total numbers indicating a threat can be listed.
    Socio-economic impacts must be on an even or greater par than all 
other considerations. Sec. 11 on penalties at (g) citizens' suits must 
come out. One alternative is to allow any citizen to counter sue those 
filing citizens' suits and the loser pays. Species, to be listed, must 
exist in more than one state. Half of the 1082 species listed do not. 
Finally, put into law the 1997 Bennett v. Spear Supreme Court case. It 
found that the best scientific and commercial data must be used to 
designate critical habitat and to make the decision to list. Federal 
agencies, currently, list and designate critical habitat without any 
science or with only studies that have not been peer reviewed.
    We recognize that it takes time to get bills through, but we are 
faced with the local BLM offices changing rules overnight. It seems 
that they hear about a new study or theory on the prairie chicken or 
lizard and the next day it is a rule. Recently the news media has been 
speaking about the large amount of leased land that has not been 
developed. A major reason for this is regulatory restrictions caused by 
the Endangered Species Act. Without access to land to explore for new 
reserves our nation's producing capability will decline at an even 
greater rate while our demand for oil and gas continues to increase. 
The inescapable conclusion is higher prices for all commodities due to 
the pervasive need for energy in most all business areas. Our nation's 
need for more energy will demand an increase in the importation of 
foreign oil and gas and weaken our economy with greater trade deficits. 
Recent events have proven time after time that many of these foreign 
countries are very unstable and do not look kindly upon our great 
nation. It will be years before any possible supplemental energy source 
may become valid. Everything reasonably possible much be done to ensure 
that our nation has the resources it needs.
    The oil and gas industry in southeastern New Mexico has been 
providing a continued source of energy to this nation for over 80 
years. Past experience and improved present practices show conclusively 
that we can drill and produce oil and gas safely, with little or no 
impact to all species. Time has proven in many areas (offshore 
platforms, the Alaskan pipeline, etc) that the existence oil and gas 
activity has improved many habitats rather than destroyed it as was 
originally claimed. Our industry is committed to improving our 
operations and minimizing any impact on the environment. We continue to 
meet and work with the various groups to identify ways that we can help 
threaten species. But the Endangered Species Act must be changed to 
more accurately reflect the needs and responsibilities of this nation.
    Thank you.
                                 ______
                                 
    The Chairman. Thank you.
    Ms. Prukop.

 STATEMENT OF HON. JOANNA PRUKOP, ENERGY, MINERALS AND NATURAL 
                      RESOURCES DEPARTMENT

    Ms. Prukop. Good morning, Mr. Chairman, Congressman Pearce. 
Thank you for the opportunity to provide the state's 
perspective on the Endangered Species Act.
    My dad was a farmer and a rancher. He recognized that 
understanding signs in nature would help him understand his 
business and how to manage his lands. I learned from him, as 
others here have learned, that nature serves as an 
environmental barometer, as an indicator of what's going on in 
our world. Understanding what was going on around him helped 
Dad make good decisions about how to manage his land and how 
the deal with the challenges presented by the environment he 
worked in. He knew that there were many things you cannot 
control and he knew that he had to learn to work with Mother 
Nature to accomplish his farming and ranching goals.
    Here in the Pecos River basin, endangered fish are not the 
problem. They are only an indicator, a symptom. Rather, it is 
management of water that is the fundamental issue. Impacts of 
fish species are symptoms that the ecosystem is not functioning 
naturally, and it is easy to see that the impacts on wildlife 
of this sort are related to the problems of downstream delivery 
of water. The loss of fish species is a sign of what humans are 
doing to change the natural water systems. They tell us that we 
are damaging the infrasystem, damage that extends far beyond 
the species itself into the lives of everyone affected.
    In striving for the balance we all wish to attain between 
environmental concerns and the needs of humanity, we must be 
thoughtful in making quality of life decisions and careful in 
understanding long-term economic impacts in the region.
    We believe the ESA is a very important law, one that is 
important to habitat protection and species conservation in the 
United States. It's appreciated and supported by many 
Americans, including many New Mexicans. Like others here have 
said this morning, it would be very hard to repeal it. Many 
Americans would come forward to voice their opinions about 
that.
    However, after 30 years, much has been learned and 
approaches to implementation of the ESA have evolved to address 
the complexities of managing endangered and threatened species. 
The use of habitat conservation plans and safe harbor 
initiatives has been two examples of that. We need to continue 
this effort to improve the Act in a manner that achieves 
species conservation and habitat protection while allowing for 
managed growth.
    We advocate thoughtful careful review of the ESA, just as 
many of our natural laws have been reviewed and have evolved 
over time. However, Congress must be careful not to make 
wholesale changes that will undermine the initial intent and 
purpose of the law. On this, it seems there is potential for 
the agreement across a wide spectrum of interests.
    The best pathway is to work together in ways that will 
conserve habitat, while, for example, observing private 
property rights. Methods that emphasize incentives for 
landowner participation in listed species conservation, 
actually such as the lesser prairie chicken here in New Mexico, 
are one example of an ESA model that needs to be continued and 
expanded upon.
    The U.S. Fish and Wildlife Service web site lists 42 
species as threatened or endangered in New Mexico, 29 animals 
and 13 plants. New Mexico currently has several wildlife 
species considered as candidates under the ESA including the 
lesser prairie chicken, the black-tailed prairie dog, the sand 
dune lizard, the yellow-billed cuckoo, and the Texas hornshell 
mussel.
    In the Pecos River basin we currently have two federally 
listed species, the Pecos bluntnose shiner and the Pecos 
gambusia, and one candidate mullosk, the Texas hornshell. We 
also have four invertebrate species that are proposed for 
Federal listing.
    In New Mexico, we have three federally threatened plant 
species on the Pecos River basin, the Pecos sunflower, gypsum 
wild buckwheat, and Sacramento Mountain thistle, and one 
endangered plant known as Kuenzler's cactus.
    In the State of New Mexico, the state agencies and Federal 
agencies work cooperatively with other interested parties to 
seek innovative and workable solutions to solving ESA issues. 
Partnerships between agencies and private landowners and groups 
have also been very important in implementing ESA projects.
    The recovery of the lesser prairie chicken has been 
mentioned. Through the cooperative work, the state management 
plan that has been developed now includes better survey and 
habitat information than it has in the past, better protection 
and improvement work by Federal and private landowners, and 
better management of Game Commission-owned property 
specifically intended for the lesser prairie chicken.
    We also have an example in the black-tailed prairie dogs.
    Through their working group, the implementation of a 
management plan will likely lead to removal of the prairie dog 
as a candidate species within the next few years.
    Another example is the Pecos sunflower that I mentioned.
    Here in this state a couple of landowners are working with 
state agencies to repopulate that species in appropriate 
habitat. The Gila trout recovery team in the Gila National 
Forest has also been very successful. The Gila recovery team 
that has been in place for more than 20 years, and today 
populations have been restored and it's possible that within 
the next few years, they will actually be fished for again.
    In terms of other successes, we know that we have some new 
funding sources for ESA available that we can work with, 
including the Landowner Incentive Grants, Private Stewardship 
Grant Program, the Highlands Plains Partnership, and increased 
funding to certain portions of Farm Bill. We also have some new 
regulatory programs under section 10 of the ESA that have 
developed--that have been developed for landowners that involve 
both pre-listing and a post-listing species, such as the 
Candidate Conservation Agreements with Assurances system for 
landowners and the Habitat Conservation Plans.
    Regarding economics in New Mexico, it's essentially always 
the case that expenditures to recover a listed species are far 
greater than the expenses to promote conditions that preclude 
their listing. So we advocate for earlier work.
    As I wrap up here, in terms of what needs improvement and 
implementation of the Act, we would like to get more 
conservation benefit from putting more effort into maintaining 
an appropriate list of species that would be protected under 
the ESA versus the time spent on determination of critical 
habitat designations, which recently have been regularly 
challenged in court and have led to a lot of money and time 
being spent to redo them.
    We need to adequately identify issues related to ESA 
statutory language and requirements versus issues related to 
ESA implementation. Recovery teams should be used more 
effectively to actually lead to on-the-ground implementation of 
recovery plans. And Congress and the Administration should do 
more to support habitat conservation planning.
    More recommendations in terms of improvements to the ESA 
itself are that we feel the doom and gloom regarding the ESA is 
exaggerated. The law has been underfunded, understaffed, and in 
some cases poorly administered. But the mere fact that species 
like the peregrine falcon have been removed from the endangered 
species list and the American bald eagle has had nationwide 
recovery shows that it can work.
    In terms of improving the Act itself, we should acknowledge 
that the ESA is about listed species and listing species, not 
avoiding species listing. Again, once you list the species, the 
likelihood of success of recovery is very low. Hence, we need 
additional legislation to manage species that are identified at 
some stage prior to actual endangerment such as while an 
identified species is at risk.
    We also believe the ESA must be amended to foster and 
ecosystem management approach to conservation. It must be 
included in this--this concept must be included in the purpose 
and statement of the Act and fleshed out in the regulations. 
The Act should provide stronger conservation in conjunction 
with private interests. It should provide provisions to reward 
landowners who self-report and self-conserve the species.
    We need greater Federal incentive for state conservation 
efforts, and we need to provide the opportunity for states to 
be involved in developing the biological opinions that the U.S. 
Fish and Wildlife Service submits.
    In conclusion, we appreciate the opportunity to appear here 
today and address the issues raised by so many people here in 
New Mexico. We feel the reauthorization of the Act is a very 
high priority for New Mexicans and all American citizens. We 
support the continued effort to look at it and try to figure 
out ways to improve it.
    We also strongly support more adequate funding for the Act 
and a stronger role for states. We are willing and capable 
partners in working with Federal agencies and others who are 
concerned about this act, and we would appreciate hearing from 
you in the future in terms of how we might continue to 
participate and collaborate on reauthorization of the Act. 
Thank you very much.
    [The prepared statement of Ms. Prukop follows:]

Statement of The Honorable Joanna Prukop, New Mexico Cabinet Secretary, 
           Energy, Minerals and Natural Resources Department

Welcome and Introduction--the need for balance and a systems approach
    Mr. Chairman, Congressman Pearce, distinguished Committee members, 
thank you for the opportunity to provide the State's perspective on the 
Endangered Species Act (ESA) in Southeastern New Mexico.
    My dad, Philip Prukop, was a farmer and rancher. He recognized that 
understanding signs in nature would help him understand his business. I 
learned from him as others here have learned that Nature serves as an 
environmental barometer--as an indicator of what's going on in our 
world. Understanding what was going on around him helped Dad make good 
decisions about how to manage his land and how to deal with the 
challenges presented by the environment he worked in. He knew that 
there were many things he could not control and he knew he had to learn 
to work with Mother Nature to accomplish his goals.
    Here in the Pecos River Basin of Southeastern New Mexico endangered 
fish are not the problem--they are only an indicator, a symptom. 
Rather, it's management of water--the river itself--and other surface 
waters and groundwaters that make up the system that feeds the Pecos 
River.
    Impacts to fish species are symptoms that the ecosystem is not 
functioning naturally, and when investigated, it's easy to see that 
impacts to wildlife of this sort are related to the problems of 
downstream delivery of water. The loss of fish species is a sign of 
what humans are doing to change natural water systems. These signs tell 
us that we are damaging the ecosystem, damage that extends far beyond 
the species itself and into the lives of everyone affected. An 
important concept I'll expand upon later as we discuss how to make the 
Endangered Species Act more effective involves conservation of systems, 
as opposed to single-species or single-issue management.
    Another point to remember as our discussions proceed is that in 
striving for the balance we all wish to attain between environmental 
concerns and the needs of humanity, we must be thoughtful in making 
quality of life decisions and careful in understanding long-term 
economic impacts in the region.
    We believe the ESA is a very important law--one that is important 
to habitat protection and species conservation in the United States, 
and appreciated and supported by many Americans, including many New 
Mexicans.
    After 30 years of implementation much has been learned, and 
approaches to implementation of the ESA have evolved to address the 
complexity of managing endangered and threatened species on public and 
private lands. Examples for private lands include the use of Habitat 
Conservation Plans and ``safe harbor'' initiatives. We need to continue 
this effort to improve the Act in a manner that achieves species 
conservation and habitat protection while allowing for managed growth.
    We advocate thoughtful, careful review of the ESA. However, 
Congress must be careful not to make wholesale changes that will 
undermine the purpose of the law.
    On this, it seems there is potential for agreement across a wide 
spectrum of interested parties. The best pathway is to work together in 
ways that will conserve habitat while, for example, observing private 
property rights. Methods that emphasize incentives for landowner 
participation in listed species conservation (as with the lesser 
prairie-chicken in New Mexico, see below) are one example of an ESA 
model that needs to be continued and expanded upon.
The ESA in New Mexico Today
    The U.S. Fish and Wildlife Service Web site lists 42 species listed 
as threatened or endangered in New Mexico (29 animals, 13 plants) under 
the Endangered Species Act. Subtracting those species that are 
considered extirpated from New Mexico, or those listed twice due to the 
existence of an experimental population designation (e.g., Mexican 
wolf), there could be considered to be 22 threatened or endangered 
animals present or occasional in New Mexico.
    New Mexico currently has several wildlife species considered as 
candidates under the ESA including: the lesser prairie chicken, the 
black-tailed prairie dog, sand dune lizard, yellow-billed cuckoo and 
Texas hornshell mussel.
    At the state level, there are 118 species listed as threatened (70) 
or endangered (48) under the New Mexico Wildlife Conservation Act 
(WCA). Twenty-four of these are also listed under the Endangered 
Species Act (2 of the species listed under the WCA would currently be 
considered irregular in New Mexico, therefore don't appear on the ESA 
list for New Mexico).
    In the Pecos River Basin, we currently have two federally listed 
fish species--the Pecos bluntnose shiner and the Pecos gambusia; one 
candidate mollusk--the Texas hornshell; and four invertebrate species 
that are proposed for federal listing. Other fish species listed at the 
state level for this area are: the blue sucker, gray redhorse, Mexican 
tetra, Pecos pupfish, bigscale logperch and the greenthroat darter. Two 
state-listed reptiles (the plainbelly water snake and western river 
cooter) also occur in the Pecos River.
    There are three federally listed threatened plant species in the 
Pecos River Basin of Southeastern New Mexico: the Pecos sunflower, 
gypsum wild buckwheat and the Sacramento Mountain thistle; and one 
endangered plant known as Kuenzler's cactus.
Effective use of ESA in New Mexico
    The State of New Mexico and its agencies have worked cooperatively 
with Federal agencies and other interested parties to seek innovative 
and workable solutions to solving ESA issues in New Mexico.
    Partnerships between agencies and private landowners and groups 
have also been very important in implementing ESA projects. As an 
example, ESA partnerships working on recovery of the lesser prairie 
chicken include a southeast New Mexico working group comprised of state 
and federal agencies, industry representatives, and the conservation 
community to discuss potential conservation actions. This group has 
been in place for 18 months, working to develop specific guidelines 
that could be implemented through Bureau of Land Management (BLM) 
plans, regulations, stipulations, etc. Through such cooperative work 
the state management plan now includes better survey and habitat 
information, habitat protection and improvement work by federal and 
private landowners, and better management of Game Commission-owned 
properties specifically intended for the lesser prairie chicken. Both 
state Wildlife Partnership Funds and federal Partners for Fish and 
Wildlife projects have been applied on private ranches in New Mexico to 
benefit lesser prairie chickens.
    In another example involving a candidate species in several western 
states, multi-party (public and private stakeholders) black-tailed 
prairie dog working groups have developed state management plans, 
including in New Mexico, where multiple cooperators have signed a 
Memorandum of Understanding (MOU) to support the plan of the New Mexico 
working group. This effort has promoted the availability of various 
incentive programs for private landowners interested in maintaining 
prairie dogs. Implementation of state management plans will likely lead 
to removal of the prairie dog as a candidate species within the next 
few years.
    Another example of public-private collaboration in New Mexico 
involves a threatened plant species. The Pecos sunflower occurs in the 
Pecos River drainage at Santa Rosa and the Roswell/Dexter region. It is 
a wetland species associated with springs and seeps (not the river 
proper). Its largest population is at Bitter Lake National Wildlife 
Refuge where it is managed by the U.S. Fish and Wildlife Service 
(USFWS). Most other populations are on private lands, but a few are on 
BLM and Bottomless Lakes State Park. The greatest threats to this 
species are salt cedar encroachment and aquifer depletion (drying 
habitats). On a very positive note, two ranchers with state trust land 
springs (one near Fort Sumner and another near Bottomless Lakes) have 
volunteered to re-establish Pecos sunflower on their ranches. The State 
Land Office (SLO) and the State Forestry Division of the Energy, 
Minerals and Natural Resources Department have assisted these ranchers 
by successfully seeding Pecos sunflower in suitable habitats on their 
ranches.
    I'd like to mention one more example in New Mexico of a recovery 
effort to illustrate the successful use of the recovery team concept. 
The Gila Trout Recovery Team has been in place for more than 20 years. 
From the very beginning with this species there was a long-term 
commitment of state and federal wildlife agencies, land managers 
(primarily Forest Service, especially Gila National Forest) and others 
to save this species, our New Mexico state fish. Once the recovery plan 
was drafted, the recovery team remained in place and was very active in 
managing the recovery of this species. There was also general support 
for this effort in both the conservation and angling communities. Today 
populations have been restored sufficiently to be able to withstand 
some habitat impacts such as wildfire. The USFWS is currently working 
on a downlisting package, with a special rule to allow for some angling 
for this species under state management.

General ``successes'' and opportunities to build on experiences from 
        ESA
    Some ``new'' funding sources have been put in place that ESA 
efforts can take advantage of, especially for conservation on private 
lands. Examples include state Landowner Incentive Grants, the federal 
Private Stewardship Grant Program, the High Plains Partnership, and 
increases in funding to Farm Bill conservation title programs.
    ``New'' regulatory programs under ESA Section 10 have been 
developed for landowners, both pre-listing (e.g., Candidate 
Conservation Agreements with Assurances) and post-listing (e.g., 
Habitat Conservation Plans).
    All of the above programs can be beneficial, but agencies do not 
have existing infrastructure to successfully administer these new 
tools. So federal funding mechanisms must be pursued and secured.
    USFWS has become more receptive to partnering with state agencies 
in recent years. In New Mexico, the state collects much of the 
biological field data on endangered species that may be figured into 
Section 7 consultations, etc. The downside, however, is the continuing 
decreases in ESA Section 6 funding to states. States lack sufficient 
agency staff to participate directly in biological opinions and other 
related ESA activities.
    Unlike with wildlife, the ESA does not protect threatened or 
endangered plants or their habitats on private, municipal, or state 
trust lands unless the activities of those landowners are federally 
funded or require a federal permit. Most threatened and endangered 
plant species management in southeastern NM occurs on federal lands. 
The ESA has been effective in avoiding direct impacts to these plants 
on federal lands, which is important and can be considered successful 
implementation. If federal land populations are safe, then private land 
populations usually do not need to be an emphasis for recovery, unless 
they are critical to the species. Land use projects on federal lands 
have been modified because of these species, but we do not know of an 
instance where a project has been stopped because of a threatened or 
endangered plant. Incentive programs for private landowners, such as 
grants for habitat improvement or purchase of conservation easements, 
need to be funded to support the ESA so that recovery plans can be 
implemented with willing landowners.
    The ESA Habitat Conservation Plan provisions have been successful. 
They provide certainty and flexibility for states, landowners, and 
federal agencies. It's the kind of forward thinking that will protect 
species over the long term, instead of the reactive approach that is 
less successful and that creates last-minute surprises for landowners 
and the private sector. Habitat Conservation Planning efforts need 
continued refinement, such as a legal requirement that plans be 
consistent with species recovery and set measurable recovery-based 
biological goals. Review by independent scientists and allowing for 
greater public involvement in plan development should also be a part of 
the process. As with other aspects of implementing the ESA these 
efforts need additional support and funding.

The Economics of the ESA in New Mexico
    Regarding economics of the ESA, it is essentially always the case 
that expenditures to recover a listed species are far greater than 
expenses to promote conditions that avoid listing to start with. Also, 
if people objectively consider the true long-term economic cost of 
altering landscapes in ways that put species at risk, the actual cost 
of resource extraction would be higher than the costs we have 
historically considered. This is the argument of short-term economic 
gain versus longer-term economic implications of unwise resource use or 
management. This relates to who pays: the current generation or 
subsequent generations. Many types of resource use are possible in the 
face of at risk species and judicious conservation of habitat systems. 
The conflict generally comes when there is near-term income motivation 
fueling the resource use that views any appreciable environmental 
considerations as reducing the bottom line.
    In New Mexico, we believe the positive impact has outweighed 
negative impacts, and in cases like the Pecos River and management of 
fish species, maintenance of surface flows has likely had positive 
economic impact (e.g., to sport fishing and government funds paid for 
water leasing, etc).

What needs improvement
    We would likely get more conservation benefit from focusing efforts 
on listing actions as opposed to critical habitat designation. Such 
listing actions would be: completion of findings on proposed rules, 
review and determination of petitions, review of candidate species for 
which ``warranted but precluded'' determinations were made, completing 
listing, down-listing and de-listing packages. In other words, putting 
more effort into maintaining an appropriate list of species that would 
be protected under the ESA, versus time spent on determination of 
critical habitat designation, which recently have been frequently 
challenged in court and have had to be redone multiple times (e.g., 
Mexican spotted owl).
    Given these statements, however, we do not support H.R. 2933--The 
Critical Habitat Reform Act of 2003--because it would create 
unattainable standards and eliminate the habitat protections that 
endangered species need to recover. The recommended changes ignore the 
need for species sustainability and habitat conservation--making the 
endangered species designation available only to those species 
perilously close to extinction.
    We also do not support H.R. 662 and S. 2009--Sound Science for the 
Endangered Species Act Planning Acts. By requiring government agencies 
to ``give greater weight'' to some kinds of science over others, it 
seeks to restrict the use of important methods that scientists 
currently use to assess species' protection. Using the ``best available 
science'' is a laudable goal, making value judgments about science is 
not. It's also important to mention that just as science is needed to 
implement endangered species protections, industry and other developers 
must also share the burden of using science to determine how best to 
carry out their activities in an environmentally compatible manner.
    We need to adequately identify issues related to ESA statutory 
language and requirements versus issues related to ESA implementation 
within the USFWS and the Department of Commerce.
    We need greater federal incentives for state conservation efforts 
to avoid listing.
    We should establish reasonable rewards for landowners who self-
report and self-conserve listed species.
    We must adequately fund ESA recovery efforts so there can be an 
effective test of what the ESA is supposed to do. Thus far, the ESA has 
not adequately addressed recovery. Funding of recovery programs shows 
positive association with species improvement, but funding for recovery 
on a per species basis has substantially diminished since 1980.
    Recovery teams often disband after recovery plans are written, 
leading to no direct oversight or recovery implementation. There are 
excellent models of recovery teams being actively involved in 
management such that successful recovery was accomplished. This 
approach needs to be replicated.
    The Administration and Congress should do more to support Habitat 
Conservation Planning. It should recognize the ESA on military and 
other public lands. Unfortunately, the Administration and Congress have 
under-funded ESA implementation, and states and landowners are growing 
increasingly frustrated with the law itself instead of with the way it 
is being implemented.

The Need for More Collaboration
    There is reason for the federal agencies to reach out to the 
stakeholders in the ESA debate. Private landowners, environmental 
groups, and others all belong at the table. This is the essence of 
collaborative conservation.
    Here in New Mexico, we can tout a few successes in that regard. For 
instance The Nature Conservancy has done some very important habitat 
protection on private land, while working with agencies and other 
landowners cooperatively. Additionally, Senator Domenici's efforts to 
get Middle Rio Grande stakeholders into collaborative programs to 
protect the Rio Grande silvery minnow are promising. These efforts take 
a long time, especially in complicated western situations involving 
habitat and water rights. But they are worthwhile--and they are much 
more constructive than the court battles that create long-term 
hostility among potential allies.
    In our state, a variety of state agencies have been involved in ESA 
management challenges in the Pecos River Basin. The New Mexico 
Interstate Stream Commission (ISC) has provided technical assistance in 
the form of hydrologic modeling to calculate ESA depletions and offsets 
using an innovative integrated groundwater and surface water model--
this kind of collaboration should continue.
    In addition, the New Mexico Department of Game and Fish (NMDGF) and 
the ISC have undertaken a significant state investment in biologic 
research to determine the habitat needs of the fish in the Pecos River, 
in conjunction with federal agencies and stakeholders. This work 
resulted in the identification of flow regimes that would be most 
successful in achieving recovery of listed fishes. The ISC also worked 
with other agencies, individuals and groups to take other actions to 
aid with ESA compliance including: the bypass of inflow water through 
Sumner Reservoir, establishing a fish conservation pool in Sumner 
Reservoir, pumping water from the Lynch Ranch to maintain flows in 
critical habitat, and a water leasing and forbearance program with the 
Fort Sumner Irrigation District.
    In another example on the Pecos River, a Cooperative Conservation 
Plan was developed by State and Federal agencies for the Pecos pupfish 
in lieu of federal listing.
    Additionally, current efforts by state agencies (ISC and NMDGF) to 
establish a Conservation Agreement in lieu of federal listing of four 
invertebrate species are moving forward. These four invertebrate 
species, if listed, could adversely impact New Mexico's efforts to 
implement a long-term compliance plan to the Pecos River Compact, so 
precluding listing is of paramount importance.

Recommended Improvements to the ESA in New Mexico
    The gloom and doom regarding the ESA is exaggerated. The law has 
been under-funded, understaffed, and in some cases poorly 
administered--but the mere facts that species like the peregrine falcon 
are being removed from the endangered species list and the bald eagle 
is recovered nationwide are indications that the ESA is working in very 
big ways.
    Here are some ways to make the ESA more effective:
      Acknowledge that the ESA is about listed species and 
listing species, not avoiding species listing. The ESA is designed to 
protect threatened and endangered species, but is not designed to 
prevent species from becoming threatened or endangered. Once a species 
is actually listed, the likelihood of success in recovering the species 
is very low. Hence, additional legislation is needed to manage species 
that are identified at some stage prior to actual threat or 
endangerment, e.g., as in ``species at risk.''
      The ESA must be amended to foster an ecosystem management 
approach to conservation of species and preservation of habitat. A 
mechanism to address ecosystem management issues (conservation of 
systems) must be included as a statement in the ``purpose'' section of 
the Act and then be fleshed out in the regulatory steps. Such an 
approach should incorporate protections for candidate and proposes 
species. This does not, however, imply that any individual species 
should ever be discounted.
      The Act should provide stronger habitat conservation 
provisions in conjunction with private interests.
      The ESA should include provisions to reward landowners 
who self-report and self-conserve listed species, i.e., emphasize 
incentives for landowner participation in listed species conservation 
(e.g., tax incentives).
      We need greater federal incentives for state conservation 
efforts to avoid listing.
      We should provide the opportunity for USFWS biological 
opinions re: ESA to be written jointly with state agencies.
Closing Remarks
    We appreciate the opportunity to appear, and to hear the issues 
raised by people here in New Mexico.
    Reauthorization of the ESA is a high priority in New Mexico. We 
support continuance of the ESA and strongly support reforms that make 
it more effective in achieving the original intent of the Act.
    We also strongly support adequate funding of federal ESA 
implementation programs.
    We support a stronger role for states in working as collaborators 
with the federal government and others to achieve ESA goals in an 
effective and timely manner. However, the State of New Mexico cannot 
afford for the Federal Government to abdicate its responsibility by 
weakening the ESA and its funding levels and burdening states with 
compliance.
    We are willing and capable partners in the reform of the ESA. We 
anticipate hearing from you in the future and welcome future 
collaboration.
    Thank you.
                                 ______
                                 
            ENDANGERED SPECIES ACT PERSPECTIVES (1966-2003)
                    INSIGHT FOR J. PRUKOP TESTIMONY

1966-- End. Species Preservation Act (1st federal End. Spp legislation)
1967-- 1st federal listing of endangered species (13 mammals, 36 birds, 
        3 reptiles, 3 amphibians, 22 fishes)
1969-- End. Spp. Conservation Act (additional protection of species 
        worldwide) required U.S. to convene global convention (led to 
        CITES)
1973-- Convention on International Trade in End. Spp of Wild Fauna and 
        Flora (CITES) signed
1973-- Endangered Species Act (ESA) signed 28 December (PL-93-205)
1973-- ESA implements Convention of Nature Protection and Wildlife 
        Preservation in Western Hemisphere (signed in 1940)
1976-- 1st invertebrates listed (6 butterfly species)
1977-- 1st plant species listed (San Clemente Island Indian paintbrush 
        and San Clemente Island broom)
1978-- ESA reauthorized and amended (PL-95-632) allowed economic impact 
        assess of critical habitat, priority system for listing, 
        required critical habitat with listing, specified public notice 
        and hearing requirements prior to listing, cooperative 
        agreements with states
1978-- 1st Recovery Plan (Kirtland's Warbler)
1979-- Exempted Tellico Dam project from ESA to allow completion, 
        increased and extended funding authorizations through September 
        1982
1980-- Provided for listing regulations
1981-- Defined ``harm''
1982-- ESA reauthorized allowed development of HCPs, critical habitat 
        designation with listing made discretionary, restricted listing 
        to biological and trade information without economic 
        assessment, experimental population designation
1983-- 1st Habitat Conservation Plan (HCP)--San Bruno elfin butterfly 
        (California)
1985-- 1st delisting (Brown Pelican on Atlantic Coast and part of Gulf 
        Coast)
1986-- Section 7 regulations provided
1988-- ESA reauthorized. Numerous clarifications including definition 
        of ``person'' to include municipal corporations, enforcement 
        re: import/export of listed plants, added ``warranted but 
        precluded'' category, required recovery plan criteria, status 
        report to Congress biannual, public review of new/revised 
        recovery plans, 5-year monitoring of candidate and delisted 
        species, and many others
1989-- Listing guidelines provided
1990-- Recovery guidelines provided
1992-- ESA authorization expires and is continued through annual 
        appropriations
1994-- Draft HCP and Section 7 guidelines, No Surprises Policy, greater 
        emphasis on Joint interagency ESA policies, initiation of 
        policy adjustments to minimize landowner stimulus to harm 
        wildlife habitat as means to avoid ESA implications
1995-- 1st Safe Harbor agreement approved, U.S. Supreme Court defines 
        ``harm'' to include modifying or destroying habitat if it 
        includes taking a listed species
1996-- Listing priority guidelines developed, Final HCP guidelines 
        provided, Distinct Vertebrate Population Segments Policy 
        recognized
1997-- Safe Harbor Policy and Candidate Conservation Agreements Policy 
        drafted
1998-- Final Section 7 Guidelines, No Surprises Rule issued
1999-- Final Safe Harbor Policy issued, Final Policy for Candidate 
        Conservation Agreements with Assurances, Regulations for Safe 
        Harbors and CCAs
2000-- Improved coordination of ESA section 7 consultation for FERC 
        licensing of hydro projects
2001-- Endangered Species Planning Act gives greater weight to use of 
        scientific or commercial data that is tested or peer-reviewed 
        and increases consideration of information from states, 
        landowners, and affected others
2003-- Conservation Banking Guidance to offset adverse impacts to 
        listed species, Draft Candidate Conservation Agreements 
        Handbook, Policy for Evaluation of Conservation Efforts (PECE) 
        when making listing decisions
                                 ______
                                 
FEDERAL AND STATE PROTECTED AQUATIC WILDLIFE IN THE PECOS RIVER VALLEY, 
                               NEW MEXICO
                                MAY 2004

      Currently, there are 7 protected fish species within the 
mainstem Pecos River, NM. One, the Pecos bluntnose shiner, is state and 
federally protected, and the remainder (blue sucker, gray redhorse, 
Mexican tetra, Pecos pupfish, bigscale logperch, and greenthroat 
darter) are state protected. Two state-listed reptiles (plainbelly 
water snake, western river cooter) occur in the Pecos River. Several 
other state and federally listed species occur within springs, 
tributaries, sinkholes, and other off-channel habitats of the Pecos 
River basin. Greater potential for regulation of habitat will occur if 
the yellow-billed cuckoo (found in salt cedar and other riparian 
vegetation in the Pecos drainage), which is currently a Candidate for 
listing under the Endangered Species Act, becomes federally listed.
      Repatriation of Rio Grande silvery minnow to Pecos River 
has been identified as a recovery item.
      Almost all ESA-related concerns driven by efforts to 
manage the Pecos bluntnose shiner and Section 7 consultations.
      Major players in water issues are the Carlsbad Irrigation 
District, Fort Sumner Irrigation District, U.S. Bureau of Reclamation 
(USBR), U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, 
New Mexico Interstate Stream Commission (NMISC), and the Pecos Compact 
Commission.
      Major issues are maintenance of Pecos River surface flows 
for the Pecos bluntnose shiner, delivery of full water allocation to 
districts, and meeting interstate delivery obligations.
      From ESA Biological Opinions in 1991 through late 90s, an 
inter-agency Memorandum of Understanding (MOU) (including the New 
Mexico Department of Game and Fish) provided for research and water 
management. All water obligations were met and surface water for the 
Pecos bluntnose shiner was maintained. the Pecos bluntnose shiner 
status was stable and the system was functioning to benefit all 
constituents (including fish). NMISC offered, but chose not to be 
signatory to MOU.
      MOU program was not perfect, but was working (1991-1998). 
Hydrological and biological research provided info for improved water 
and fish management, intra- and interstate water obligations were met. 
Annual meetings for coordination of fish, water, agricultural needs 
were held. NEPA process for operation of Pecos reservoirs by USBR was 
initiated in late 90s. Co-leads on the NEPA process, including NMISC, 
were adamant about creating a new structure of biological and 
hydrological teams for the EIS. Confusion and disarray regarding 
integration of previously-collected information and possible river 
management options occurred.
      NMISC and its consultants refused to acknowledge the 
credibility and reliability of research accomplished over a 9-yr period 
and broad range of flows that identified habitat associations and 
biology of Pecos River fishes, particularly the Pecos bluntnose shiner. 
NMISC contracted work to duplicate and refute previous research. Work 
done by NMISC during 2 years of drought and did not refute and in some 
ways confirmed previous work.
      NM's difficulty in meeting inter-state compact 
obligations is a consequence of over-appropriation in NM, and not 
because of the Pecos bluntnose shiner. Shortfalls to TX occurred before 
the Pecos bluntnose shiner listed and any effort made to provide for 
it.
      Drought of past 3-4 years has complicated river and water 
management.
      During past 3-4 years, river has dried in substantial 
reaches, causing substantial loss of the Pecos bluntnose shiner and 
other fishes. Some drying is probably inevitable, but lack of 
cooperation and coordination, such as occurred during MOU period, 
likely exacerbated drying (extent and duration).
      Considerably more info on hydrology of system (e.g., 
water transport efficiencies) is available, and this has contributed to 
improved management.
      Under the MOU, maintenance of winter flows improved water 
quality (reduced salinity) in Brantley--less water was needed for 
irrigation in some years. Maintenance of more consistent flows may also 
benefit sport fish.
      Although debated, maintenance of surface flow for the 
Pecos bluntnose shiner ``cost'' <1,000 ac-ft/year during drought and 
USBR paid for this water.
      Water leasing to maintain wet channel for the Pecos 
bluntnose shiner financially benefited FSID farmers.
      Many farmers in Roswell Basin believe maintenance of 
surface flows helped recharge aquifer.
      ESA has had no demonstrated negative economic impact 
(granted, compliance aggravates some) and maintenance of surface flows 
has likely had positive economic impact.
      Continued, broad-scale eradication of salt cedar on the 
Pecos to ``produce'' more water in the river could create a regulatory 
situation with yellow-billed cuckoo on the Pecos similar to 
southwestern willow flycatcher on the Rio Grande.
                                 ______
                                 
          NEW MEXICO'S THREATENED AND ENDANGERED PLANT SPECIES

      There are eight federally listed plants in southeastern 
New Mexico:
        Kuenzler's cactus*
        Gypsum wild-buckwheat*
        Pecos sunflower*
        Sacramento Mountain thistle*
        Sacramento prickly poppy
        Todsen's pennyroyal
        Sneed's pincushion cactus
        Lee's pincushion cactus
      *Found in the Pecos River Basin
      Kuenzler's cactus (endangered) occurs in grasslands and 
savanna in the Guadalupe and Sacramento Mountains on BLM, U.S. Forest 
Service, state trust, and private lands. Its habitats on federal lands 
have been excluded from prescribed fire treatments, but have not 
curtailed or excluded livestock grazing. There is presently very little 
oil and gas development within Kuenzler's cactus habitat, so this is 
has not been a conflict. ESA has protected this cactus only on federal 
lands. Recent surveys by EMNRD, USFS, and BLM have found this cactus to 
be more widespread than thought when listed. It could easily be down-
listed to threatened.
      The Gypsum wild-buckwheat (threatened) exists in only 
three populations on relatively small gypsum outcrops on BLM and state 
trust land near Carlsbad. There are no conflicts with grazing, and oil 
and gas development can easily avoid impacting these small areas. The 
ESA has successfully protected this species from oil and gas 
development impacts without curtailing these activities, or causing any 
economic loss.
      The Pecos sunflower (threatened) occurs in the Pecos 
River drainage at Santa Rosa and the Roswell/Dexter region. It is a 
wetland species associated with springs and seeps (not the river 
proper). Its largest population is at Bitter Lake National Wildlife 
Refuge and is managed by USF&WS at that location. Most other 
populations are on private lands, but a few are on BLM land and at 
Bottomless Lakes State Park. Its greatest threats are salt cedar 
encroachment and aquifer depletion (drying habitats).
      Two Ranchers with state trust land springs (one near Fort 
Sumner and another near Bottomless Lakes) have volunteered to re-
establish the Pecos sunflower on their ranches. The SLO and the EMNRD 
have assisted these ranchers by successfully seeding Pecos sunflower in 
suitable habitats on their ranches. This species can be recovered, but 
ESA needs to provide more grants to the state and landowners for 
habitat improvement and purchase of conservation easements.
      The Sacramento Mountain thistle (threatened) is a wetland 
species that occurs on springs around the Cloudcroft area--which is 
part of the Pecos River basin. Most of its locations are on the Lincoln 
National Forest, but one is on the Mescalero Reservation and another on 
private land. It habitats are threatened by spring capture, noxious 
weeds, and chronic overgrazing by livestock. The plant itself would be 
seriously imperiled if weed management programs imported the Eurasian 
musk thistle weevil (Rhinocyllus conicus) to the Sacramento Mountains 
to control the noxious weed, musk thistle. Greenhouse studies have 
shown this exotic weevil prefers Sacramento Mountain thistle to the 
musk thistle. The U.S. Forest Service has modified some timber harvests 
and grazing allotments because of this threatened plant, so there have 
been some conflicts with land users. It needs long-term monitoring and 
protection on federal lands--recovery is elusive.
      The Sacramento prickly poppy (endangered) occurs in five 
canyons on the west escarpment of the Sacramento Mountains, mostly on 
Lincoln National Forest, but a few on BLM, private land, and there were 
2 plants on Oliver Lee State Park five years ago. It grows on disturbed 
soils, but we have witnessed a steady decline in population during the 
last 15 years. There are now less than a 1000 individuals left on 
earth. We cannot figure out why this plant is headed for extinction. 
Lots of suitable habitat is available. This prickly poppy sometimes 
grows on roadsides, so it has been a headache for Dept. of 
Transportation, but has not significantly curtailed other land uses.
      Todsen's pennyroyal (endangered) occurs on gypsum 
outcrops on the west slope of the Sacramento Mountains and in the San 
Andres Mountains on White Sands Missile Range. It is entirely confined 
to Lincoln National Forest, BLM and DOD lands. This is just a rare 
plant that occurs on steep slopes in pinon-juniper woodland at a few 
scatted localities. There are presently no serious threats or land use 
conflicts.
      Sneed's pincushion cactus (endangered) occurs in widely 
scattered locations from the south end of the Organ Mountains to the 
Franklin Mountains and over to the Guadalupe Mountains. There are few 
land use conflicts in its habitats. It is almost entirely on BLM, DOD, 
and Lincoln National Forest (a few on private land in Texas). Recent 
surveys and taxonomic studies by EMNRD, BLM, USFS, USF&WS, and NPS have 
revealed this cactus to be more widespread and less threatened than 
thought when listed. It could easily be down-listed to threatened or 
removed from the list altogether.
      There is a variation of Sneed's pincushion cactus 
(Escobaria sneedii var. leei) in the Guadalupe Mountains called Lee's 
pincushion cactus (Threatened). It is confined to one or two ridges on 
the north end of Carlsbad Caverns National Park and is listed as 
threatened. There are no land use conflicts since the Park is obliged 
to protect it. This is a very rare cactus (collectors want it), so will 
need perpetual consideration by NPS.
    Most of these listed plants, the gypsum wild-buckwheat, Sacramento 
prickly poppy, Sacramento Mountain thistle, Todsen's pennyroyal, and 
Lee's pincushion cactus, are extremely rare naturally and will always 
need the protections afforded by the ESA. They will continue to be 
threatened as long as there are land uses in their habitats, so 
recovery is not a reasonable expectation.
    To see photos or read more about these plants, go to the New Mexico 
Rare Plants Web site at http://nmrareplants.unm.edu. It is maintained 
by the New Mexico Rare Plant Technical Council was founded in 1999 and 
works to construct an informative Web site for land managers and the 
public.
                                 ______
                                 
    The Chairman. Thank you. Mr. Stell.

      STATEMENT OF HON. JOE STELL, STATE REPRESENTATIVE, 
                      STATE OF NEW MEXICO

    Mr. Stell. Mr. Chairman Pombo and Congressman Pearce, thank 
you for the opportunity to be here. Also, friends and members 
of the audience and your staff. My name is Joe Stell. For the 
record, my mailing address, 22 Caldwell Ranch Road, Carlsbad. 
Although my mailing address is Carlsbad, I actually live 32 
miles out toward El Paso, five miles from the Texas line. And I 
guess my living so close to Texas and being from southeastern 
New Mexico, I'm at a little disadvantage in staying within the 
5-minute limit because of my rapid speech.
    I'm a State Representative for House District 54, which 
includes a lot of this area and Otero County, including Otero 
Mesa. I've served as a representative for 18 years, and I've 
lived in this legislative district for over 75 years. And I 
graduated from a local high school, have a bachelor's degree, 
master's degree in school administration, and 50 hours beyond 
the master's degree.
    My wife, Verna, and I, for 56 years, have been involved in 
ranching in Eddy County over 50 years. I'm a member of the New 
Mexico Cattle Growers, Farm and Livestock Bureau, Southeastern 
New Mexico Grazing Association, and other civic and social 
organizations.
    My comments--and this is a disclaimer; I don't represent 
the Legislature. I'm just speaking from my own personal long-
time experience.
    The Endangered Species Act is 30 years old December 28, 
2003. A total of 1,288 plant and insects and birds, herbs, and 
mammals are listed as deserving protection. Billions of dollars 
have been spent on these species, but only a handful of success 
stories.
    Let me interject at this point that I consider myself 
somewhat of an environmentalist. I love wildlife, deer, birds. 
As a matter of fact, my wife and I each morning when we eat 
breakfast have a couple of 35-gallon containers that dispense 
feed, milo, to be exact, to the birds and doves and quails, 
rabbits, ground squirrels, and we watch them out our back 
windows. I put 47 50-pound sacks in those feeders last year. 
That's probably more money than a lot of environmentalists have 
paid in their membership dues to their organization. That's 
just an ad lib comment, by the way.
    We also put out feed, supplemental feed, for our cattle in 
the form of molasses or protein blocks, and so on. And I've 
noticed that the javelinas--by the way, I saw a javelina that 
had been run over on the highway, roadkill, this morning, 
coming in--javelinas, deer, coyotes, all types of wildlife like 
that supplemental feed for livestock.
    And I might mention here, I delineate a little between 
extreme environmentalists and environmentalists. Some of the 
extreme environmentalists may be at the source of some of the 
problem. But anyway, in my personal opinion, the agenda of the 
more aggressive organizations is to kind of bring the United 
States into an economic chaos, maybe an economic downfall. It 
isn't really the protection of the species. It's to maybe put 
some of the money-making endeavors, agriculture, oil and gas, 
forestry, out of business.
    And as evidence of that, we had the northern spotted owl in 
the northwest United States put 50,000 people out of jobs up 
there. Then they came down with the Mexican spotted owl in the 
Reserve area, started in 1987, and by 1992, it was all over, 
and Stone Forest Industries had taken their business out of 
Reserve and out of Catron County.
    One individual, Wilfred Estrada, was a typical person.
    He had been a logger for 34 years; didn't know how to do 
anything else. He was put out of work and has not had work 
since. And other loggers have had the same fate. But those are 
some human stories that this Endangered Species Act has 
affected.
    Another example, over in Reserve, Catron County, we had a 
forest fire in 1998, damaged some logging, a huge amount of 
trees, timber. The logging people went in there, in conjunction 
with the forest service oversight, decided maybe some of those 
dead trees could be salvaged. So at any rate, they let a 
contract out, and a lawsuit was filed against the logging 
companies and the forest service for even wanting to take the 
dead trees out.
    Well, anyway, it was primarily a rural problem until the 
silvery minnow came along and they needed water resources to 
keep the minnow going. And they proposed to use water from the 
Rio Grande, that was actually imported water from the Pacific 
watershed through the San Juan Chama diversion into the Chama 
River, and then on down to the Rio Grande. And that was a 
project that was paid for by middle Rio Grande, Santa Fe, 
Albuquerque, some of the native American tribes, and they 
wanted to and did use that water to keep the flow of the Rio 
Grande going even though it was in, quote, private, unquote, 
water.
    The rural problem, that then was perceived to be rural, 
turned out to be an urban problem because the city of 
Albuquerque got involved in a lawsuit over that, and had to try 
and defend their water rights on that San Juan Chama diversion.
    Same thing has happened with the Carlsbad Irrigation 
District. They've had to try to protect their water rights and 
with a trickle of water coming out of the Fort Sumner Dam that 
never makes it down to the storage reservoirs of CID. The water 
seeps into the ground and is made useless. Yet that water is 
measured and we owe Texas a part of that water that never did 
get to the diversion point for Texas. That trickle is an 
indication of the way to let the water go down the stream.
    I might mention, ask the question, why does this happen.
    Well, the Endangered Species Act, which I think was 
intended to be a good act and salvage a lot of wildlife that we 
don't want to see go extinct, but water has long been known in 
the southwest to be the lifeblood. In the early days before New 
Mexico was a state, the U.S. Government came in, promised to 
build dams, reservoirs, and we'll open up the southwest to 
economic development.
    They did that in the case of Elephant Butte Irrigation 
District, Carlsbad Irrigation District. And both these 
districts, by the way, have paid off their loans that the 
Federal government financed in the construction of those dams. 
And at any rate, with the water being recognized as belonging 
to the state, which it was at that time, and it belongs to the 
people to be appropriated for beneficial use, and those water 
rights have long been established. It's a proprietary right. 
And yet the Federal government, through the Endangered Species 
Act, is coming back to reclaim those water rights that have 
already been issued and adjudicated in a lot of cases. So the 
Endangered Species Act is creating a litigation type problem.
    There is an imbalance, also, in who is paying the price for 
these endangered species. Your oil, your gas, your agriculture, 
and your forestry are bigger and heavier stakeholders than the 
ones that dictate the lawsuits out of Arizona and New York, and 
wherever they come from.
    At any rate, I have some suggestions on how maybe we might 
overcome that. One of them would be to give more weight to the 
human factor with the ESA act. Give more concern to the 
economic impact that the designation of habitat might have on a 
community or individual or a company. Put limits on the cost of 
recovering an endangered species. I've heard in the 
neighborhood of a million dollars, and I could be wrong. Even 
500,000 or 100,000 would be a pretty high cost per wolf, that 
that program is costing us.
    You might also make it more difficult to file a lawsuit 
and, in the case of water rights, require that the people that 
are wanting the water for an endangered species to purchase 
that water legally from a bona fide owner of water rights, and 
make that water be paid for instead of litigated away from the 
owner of the water rights.
    I see my time has been up for a little while. I'll close by 
saying thank you again for allowing me to testify before this 
group. Thank you very much.
    [The prepared statement of Mr. Stell follows:]

    Statement of The Honorable Joe M. Stell, State Representative, 
                          State of New Mexico

    Mr. Chairman, Congressman, Congressman Pearce, Friends and members 
of the audience, my name is Joe Stell.
    My mailing address is 22 Colwell Ranch Road, Carlsbad, New Mexico, 
88220. My home is 32 miles southwest of Carlsbad, New Mexico at the 
base of the Guadalupe Mountains, near Slaughter Canyon.
    My home and business phone numbers is (505) 785-2188, when it 
works.
    I am a State Representative for House District 54 of the State of 
New Mexico. I have served in this position for 18 years at the end of 
the year, and I will have two more years to serve after the completion 
of this term.
    I have lived in legislative district 54, and in Eddy County New 
Mexico for 76 years. I graduated from Carlsbad High School and earned a 
BS degree in Language Arts from University of New Mexico, and an MS 
degree in School Administration. I have 50 hours of college credit 
beyond my MS.
    My wife of 56 years, Verna, and I have been involved with ranching 
for 50 years in Eddy County. We are members of NM Cattle Growers and NM 
Farm and Livestock Bureau and other social and civic organizations.
    Today, my comments are from my general experience as a legislator, 
school administrator, rancher and longtime citizen.
    The Endangered Species Act was 30 years old December 28, 2003.
    A total of 1,288 plants, insects, birds, herps and mammals are 
listed as deserving protection. Billions of dollars have been spent 
with only a handful of success stories.
    Let me interject at this point that I consider myself somewhat of 
an environmentalist. I love wildlife, deer, javelina, quail, doves and 
other wildlife. My wife and I often watch out our back window while 
eating breakfast at two thirty-five gallon containers that dispense 
grain to hundreds of birds, doves, quail, sparrows and numerous other 
species, rabbits and ground squirrels. The birds ate 47-50 lb. sacks of 
grain last year. (That's 1 Ton 350 lbs.)
    Also, deer, coyotes, porcupines, javelinas and other wildlife enjoy 
the supplemental feed provided by farmers and ranchers to their 
livestock.
    The extreme environmentalists and environmental groups are creating 
difficulties in our nation. In New Mexico up until October 2002, 134 
lawsuits had been filed since 1995.
    It is my personal opinion that the agenda of the more aggressive 
organizations is to bring the United States into economic downfall. 
They started with the northern spotted owl in the northwest and shut 
down logging in the National Forests of the Northwest with the loss of 
thousands of jobs.
    Next, came the Mexican Spotted Owl in the Southwest, and the 
community of Reserve lost it's logging industry. Wilfred Estrada had 
worked as a logger 34 years and was put out of work and lost his means 
of support. Other loggers with similar longevity met the same fate. The 
environmentalists started trying to shut the industry down in 1987 and 
by 1992 it was all over, according to Dan Fryor, former logger and 
Catron County Manager.
    In 2001, the U.S. Forest Service awarded a salvage contract for 
timber in Catron County that had been burned in 1998. An environmental 
group sued the U.S. Forest Service, even though the fire occurred 3 
years before.
    It was primarily a rural problem until the urban communities became 
concerned when the Rio Grande Silvery Minnow required water from the 
San Juan / Chama diversion that belonged to the Middle Rio Grande 
Conservancy District and the City of Albuquerque and others. In regard 
to the Rio Grande Silvery Minnow, the lawsuits have come at a 
significant cost to taxpayers. The city residents (IE Albuquerque) must 
pay higher fees on services to allow for lawyers litigation fees to 
protect what is already theirs. Members of the Middle Rio Grande 
Conservancy District, as well as other political subdivisions, have 
faced the same problem.
    The water supply of Carlsbad Irrigation District was similarly 
affected, as was the Pecos River Compact with the slow release of water 
from Sumner Dam to provide a constant flow of water for the Pecos River 
Blunt-Nose Shiner.
    And the story goes on. The logging, mining and agricultural 
industries have all been attacked by the extreme environmentalists by 
the use lawsuits. When the industries affected don't contribute to the 
state tax base by paying corporate taxes, and their employees paying 
personal income taxes, it is a loss of income to the state. Other 
citizens and companies have to make up the loss by paying higher taxes 
and fees.
    The oil and gas industry is also in the picture with the Dune 
Sagebrush Lizard and the Aplomado Falcon on Otero Mesa and the Lesser 
Prairie Chicken in the east central NM. Oil and gas pay approximately 
25% of our state budget.
    A percentage of interest earned from NM Severance Tax permanent 
fund goes into the State's general fund. This significant amount saves 
each taxpayer $600 to $700 per year. Ninety plus percent of the money 
that goes into the severance tax permanent fund comes from the oil and 
gas industry. Therefore, if oil and gas production is curtailed due to 
lawsuits from environmentalists or designations of habitat for 
endangered species purposes, the loss of severance tax will be a hidden 
cost to the citizens of New Mexico. This is not to say that oil and gas 
exploration should not be controlled or limited. In many instances, 
exploration can occur with controls that will not be a detriment to 
endangered species.
    What can be done?
Suggestions:
    1.  Adjust (amend) the ESA to give more weight to the human factor 
(the effect on people).
    2.  Give more concern to the economic impact that a designation of 
habitat might have on a community or individual.
    3.  Put limits on the cost of recovering a species (IE $500,000.00 
per wolf is too much).
    4.  Make it more difficult to file a lawsuit.
    5.  In the case of water rights, require the interested parties to 
buy or lease legal water rights, don't allow confiscation by 
litigation. The public sector operates under this procedure.
                                 ______
                                 
    The Chairman. Thank you. Mr. Tully.

                  STATEMENT OF JON R. TULLY, 
                  CARLSBAD CITY ADMINISTRATOR

    Mr. Tully. Thank you, Mr. Chairman Pombo, Representative 
Pearce. I appreciate the opportunity to be here. My name is Jon 
Tully. I'm Carlsbad city administrator. I've been employed by 
the city for 32 years, and I've held the position of 
administrator for the past 12 years. Prior to that, my 
experience with the city was in a variety of positions in 
public safety.
    My remarks today are prompted really by a conversation with 
Representative Pearce. As Representative Stell said, water is 
the lifeblood of New Mexico. But if you had been in this very 
spot this past Palm Sunday at about 4:00 in the morning, you 
would have thought it was anything but the lifeblood for this 
community.
    After two-and-a-half days of virtually unabated rainfall, 
the tributaries feeding into the Pecos to the north, west, and 
south converged on Carlsbad and we had a flood event that 
inundated over 200 homes in the community. Thanks to the grace 
of God and thanks to a great deal of very professional quick 
action by emergency responders, human life was spared and there 
were not even any serious injuries.
    But as with any story, you know, there are many, many human 
faces, each having their own set of circumstances. And one such 
is a retired elderly school administrator, a friend of mine for 
many years, who lives not half a mile from where we're sitting 
right now, who found himself at about 4:00 in the morning 
having to evacuate his home because of the rising floodwaters.
    He lived in that house for over 40 years, and that had 
happened previously in 1966. It almost happened, his property 
was threatened, as were many others, in 1986. So this community 
breathed somewhat of a collective sigh of relief in 1988 when 
Brantley Dam was finally completed and commissioned in part as 
a flood control facility. And even though we knew that the dam 
had been built in the wrong place, because of the geology of 
the region, there was a sense, I think, that we were protected 
largely from the kind of floods that we had had in the past.
    And we found on Palm Sunday that that was not the case, 
that the major tributary, Rocky Arroyo, can contribute, 
particularly when the other tributaries are--the watersheds are 
full after days of rainfall, that we still have a serious flood 
issue in this community.
    It probably historically doesn't have a whole lot to do 
with the ESA. But literally as those floodwaters were receding, 
Congressman Pearce met with myself and several other 
representatives of local government and he asked, if I may 
paraphrase, two questions. What do we need to do right this 
minute, and what do we need to do in the future to try to 
prevent these problems?
    And we discussed very briefly some thoughts that those of 
us who work in the government who have dealt with this problem 
for many years have had, such issues as rechanneling part of 
Rocky Arroyo into Brantley Dam; reconfiguring the confluence of 
Dark Canyon at the Pecos River, which is a short distance south 
of here; and several other projects that have been 
conceptualized over the years.
    But as we began to conceptualize those, almost invariably 
we arrived at the conclusion that while they were hydraulically 
and hydrologically possible, while the engineering would be 
sound, while the cost would be great, but perhaps not an 
insurmountable obstacle, we could probably never accomplish 
those projects because of the Endangered Species Act and a 
variety of impediments that it would place in our path.
    Congressman Pearce indicated that things might change, that 
perhaps we should not give up on the hope of those kind of 
projects to safeguard the citizens of Carlsbad. In my 30-plus 
years of public service, it is my experience that well-intended 
laws--and certainly the ESA is well-intended, as are most of 
the environmental laws of this country--are too frequently 
drafted, enacted, codified, and interpreted, enforced, and 
unfortunately litigated by people who never will be personally 
confronted with the impediments and complexities of compliance.
    And from my perspective as a city administrator, which is a 
job that takes on a wide variety of daily chores, the rub of 
the ESA is that the only absolute certainty is that there will 
be absolute uncertainty in whether or not you can achieve 
success in projects such as the rechanneling of Rocky Arroyo.
    As you ponder the dilemmas of this law, and I know you will 
as you consider its reauthorization and its impact on not only 
southern New Mexico, but other states, certainly the Nation as 
a whole, I would respectfully ask that you consider the comfort 
of my old friend, the school administrator, as he steps next 
time into the waters that are rising in his home, to know that 
some or other salamander or such and such snail is well 
protected for future generations while he has not been.
    The ESA and other environmental laws of this nation must 
take on a different perspective, and reason and balance just 
simply must prevail. Thank you very much.
    [The prepared statement of Mr. Tully follows:]

         Statement of Jon R. Tully, Carlsbad City Administrator

    Chairman Pombo, Honorable Members of the Committee, it is my honor 
and privilege today to appear before you to offer a few very brief 
comments and observations regarding the impact of the Endangered 
Species Act on Southern New Mexico.
    On April 4th, Palm Sunday in fact, at about 4 A.M., after two-and-
a-half days of heavy, virtually unabated rainfall, flood waters of the 
Pecos River tributaries and watersheds to the north, south, and west 
converged on the City of Carlsbad, inundating more than 200 homes but, 
by the grace of God and the quick and professional actions of emergency 
responder, sparing from death and serious injury the hundreds of 
residents of those homes.
    One of the many victims forced from home in the dead of night was a 
retired school administrator I have known for many years. His home and 
others near the lower lake had some 38-years ago been previously 
flooded when, in August 1966, an almost identical stalled weather 
system created a disastrous convergence of flood waters of the Pecos 
River and Dark Canyon. A third flood in June 1986, significantly 
damaged public property along the river but largely left private homes 
untouched.
    There was then, you might imagine, a collective community sigh of 
relief upon the completion of Brantley Dam in 1988, which, although 
built in the wrong location, inspired us to believe its flood-control 
capacities and capabilities would provide the protection this community 
needed. Its benefit is undeniable, but because, geologically, it was 
not possible to locate the dam below a major tributary above Carlsbad, 
it could not retain the waters of Rocky Arroyo that accounted for the 
major flood inflows to the north.
    At this point, the very valid question on your mind is what does 
the historical problem of flooding in Carlsbad have to do with the 
impact of the Endangered Species Act on Southern New Mexico? Actually 
nothing as far I know--at least in regards to the past; in regards to 
the future, it may have a tremendous impact--and not a positive one.
    The waters of the Palm Sunday flood had only just begun to recede 
when Congressman Pearce met here in Carlsbad to discuss with several 
representatives of local government, including myself, what assistance 
we needed now and what we might do to in the future. It is in the 
pursuit of the solutions that the ESA and the plethora of other 
environmental laws, rules and regulations may adversely affect our 
ability to implement effective mitigation ``channeling a portion of 
Rocky Arroyo to Brantley Dam, dredging Avalon Dam back to its original 
9,000 acre feet storage capacity, or reconfiguring the confluence of 
Dark Canyon at the Pecos. Such projects have been informally discussed 
over the years but largely dismissed, not because of engineering, not 
because of hydrological or hydraulic issues, not even because of cost, 
but because of the overwhelming environmental obstacles--real and 
anticipated--that regrettably take the wind out of our sails before we 
even push off from the dock.
    Well-intended laws, such as the ESA, are too frequently drafted, 
enacted, codified, enforced, interpreted and litigated by those who 
will never personally confront the practical, real-world impediments 
and complexities and frustrations of compliance. And therein, from my 
perspective as a city administrator, lies the rub of the ESA: the 
absolute certainty that the path forward is uncertain as human needs 
collide with the seemingly immovable object of the ESA.
    As you ponder the dilemmas of the ESA and its impact on Southern 
New Mexico, I would respectfully ask that you consider the comfort it 
will be to my old friend the next time he steps into the flood waters 
rising in his home to know that somebody's salamander or the such-and-
such snail are well protected for future generations even if he is not. 
Reason and balance must prevail.
    Thank you
                                 ______
                                 
    The Chairman. Thank you. I want to thank the entire panel 
for your testimony. I have held a number of hearings throughout 
the country on the Endangered Species Act and it always amazes 
me, no matter where I go, that when people talk about some of 
the stories, the impacts that they have had, and yet we still 
hear people say that they are anecdotal stories, there is no 
real impact from the Act, that a lot of it is just--not made 
up--but just exaggerated, what the impact that the 
implementation of the Act has on people.
    One of the real frustrating things for me, and I'm sure for 
Congressman Pearce, is that we all know we need an Endangered 
Species Act. We need some tool that we can use to stop species 
from becoming extinct, and I don't think there is a lot of 
debate around that. I think that that is--and you go back in 
history of the Endangered Species Act into the '40s and '50s, 
when we were making attempts to stop species like the bald 
eagle from becoming extinct--but when that tool becomes used to 
accomplish other things, it is when we begin to run into 
problems.
    And over the last dozen years that I've been in Congress, 
we've made several attempts at changing the Endangered Species 
Act and trying to change the way that it's being implemented 
out in the world, out in the real world, and people that have 
to deal with it all the time, and that gets, obviously, 
extremely controversial anytime you talk about changing the 
Act.
    One of the issues that is before us right now is a bill by 
a congressman out of the State of Oregon, Greg Walden, that 
deals with the science provisions, and trying to improve or 
change the level of science that Fish and Wildlife bases its 
decisions on. Because in my experience, one of the biggest 
complaints that we get about the Endangered Species Act is that 
the species doesn't exist where they say it exists.
    Mr. Davis, you talked about finding the species in places 
where they said it couldn't survive, you know, and things like 
that. Mr. Stell talked about the northern spotted owl, and I 
have a picture in my office of a spotted owl nesting in a Kmart 
sign. And at the time that that picture was taken, they said 
that the only place in the world that the spotted owl could 
survive was in old growth forests, and somebody brought in this 
picture of it nesting in a Kmart sign.
    If I could, I'd like to have you comment a little bit on 
the science that's being used, and do it in the aspect of what 
we're trying to do is to have a higher level, a peer-reviewed 
research level, of science that's being used before Fish and 
Wildlife makes their decisions so that their decisions more 
accurately reflect what's out there.
    And if I could have you comment a little bit on that, Ms. 
Ogden? Do you want to?
    Ms. Ogden. I know that there is a--there was a gentleman 
that lived here in Carlsbad that was doing some scientific 
research involved with the Endangered Species Act, and because 
his findings did not support the wishes of the Fish and 
Wildlife Service, they ignored his report completely and then 
did not ask him to continue any more, doing any more research 
for them. I think a lot of times there is agendas out there, 
and if the science, so to speak, that's been used or the 
findings don't support what they want to have, then they ignore 
those.
    I think that's where it's very important, as Tom was 
talking about, that they be independent of the Fish and 
Wildlife Service or the Forest Service or whatever they are 
doing. The research that's being done, it needs to be 
independent, completely independent. I think it's, as best you 
can, unbiased, because they need to be going out there and 
finding out what the real facts are, not what the wishes are.
    One of the species that was mentioned being listed was the 
gypsum buckwheat, which just so happens to be on my ranch. And 
it only grows on gyp fields. Nothing else grows on a gyp field 
anyway. And BLM went out there with us and they were wanting us 
to fence off these gyp hills because they said, you know, the 
cattle are doing damage.
    As we went out and did a walking survey of our gyp hills 
out there, they realized that it was thriving in the bottom of 
calf trails, well, which is where the cattle walk, but yet this 
species is thriving there. So they kind of, it was like, oh, 
well, you know, maybe fencing it off isn't going to make that 
big of a difference to whether or not this species survives or 
not.
    So what they were trying to do was, you know, they were 
saying, oh, well, the cattle are doing so much damage where, in 
reality, the damage to most species is environmental. It has 
nothing to do with the human factor or the cattle out there or 
any other animal, but it has more to do with the environment 
and, in our situation, drought more than wet weather.
    And so whenever you're doing science, it has to be 
extremely unbiased, and you don't have to have an agenda in 
mind when you're doing the research. You need to go out there 
as totally unbiased as possible and find out the information 
and evaluate it.
    Mr. Davis.
    Mr. Davis. Thank you, Chairman Pombo. I hope I can be 
somewhat objective. I've been around this business so long I'm 
almost a cynic. It's difficult for me sometimes to figure out--
to be positive because everything has been commented on and 
tried so much in the past.
    But I'm somewhat familiar with Congressman Walden's good 
science proposal and I support that, although I've heard the 
other side debated. Let me assure you this. The problem is not 
so much with the Endangered Species Act itself, although it 
needs some work, I believe, and the good science initiative is 
one of those things that would be helpful. The problem is the 
zealots that carry it out, the policy that's been adopted by 
Fish and Wildlife Service administration, and also the success 
environmental communities have had in court to get rulings that 
make things totally unreasonable.
    And your comment about the spotted owl was right on target. 
It's still never been proven for a fact that spotted owls 
require old growth forest to survive. And by the same token, 
it's never been proven in the case of here on the Pecos of what 
type flows the bluntnose shiner minnow needs to survive. It's 
totally unknown what the numbers are, what the numbers were 300 
years ago, and what the habitat requirements are. Fish and 
Wildlife Service biologists have one set of those requirements. 
Independent biologists have another set. Folks like me, who are 
we to believe?
    One of the things, when you pursue this good science and 
this peer review and someone that are qualified biologists that 
are totally independent, it's going to be hard to get a 
situation like that. But you're going to have these 
environmental groups running to court and saying, but we don't 
have time to go through that process. We have to do something 
immediately or these species are going to become extinct in the 
next 30 minutes, so we don't have time to implement good 
science. We don't have time to have a broader view of folks to 
look at the real habitat requirements and the real population 
numbers and the real population trends.
    And in some cases, that can be true. But in most cases in 
my experience with endangered species management is that very 
few species are on the brink of extinction within a matter of 
months or years or even decades. And so we have to be careful 
in getting caught up in that hysteria about immediate relief. 
But nevertheless--
    The Chairman. If I could, on that topic, that has been 
brought up and we've been debating that bill for the last 
several years. And one of the things that we did in that 
legislation was we amended it so that it would still give the 
secretary the authority to do an emergency listing if it was 
determined that we had to act because the species was on the 
brink of extinction. The secretary could make an emergency 
listing. It still required them to then follow that by actually 
doing the science, but protection could be levied for a species 
that the secretary or the biologists felt was on the brink of 
extinction.
    You know, the only argument that I've heard brought to the 
table in opposition to that bill has been that it would slow 
down the process, which I find somewhat ludicrous that you say 
to actually do good science, to do the research, to do the work 
that's necessary for Fish and Wildlife to make their decision, 
would take too long. So we're just going to list and implement 
critical habitat and recovery plans without the benefit of 
actually doing the science.
    And in some of your species, some of the things that 
they've talked about that I've heard about since I got down 
here, it seems like that is part of the problem, is that they 
make decisions before they actually have the information.
    Mr. Davis. That's exactly right. And it appeared that it 
was somewhat of a biased decision to begin with, in all 
deference to Secretary Prukop. The dams aren't the problem. The 
river operates as if the dams weren't there. The base flow is 
passed through the dams. But I was here when that was done and 
when the listing was done and the critical habitat was done, 
and I was daily involved, and it was apparent to me that dams 
were the target. There was no unbiased approach. The target was 
the dams, just like the target has been oil and gas, the target 
has been timber cutting.
    And maybe harvesting resources, management resources in 
many cases, has some impact on endangered species, and I'm sure 
they could. But when you go in and it appears that the target 
is to totally shut down any of those processes to benefit an 
endangered species when, in fact, if there was some better 
unbiased study done, you would find that the species is maybe 
not so directly impacted by these activities or maybe not 
impacted at all.
    More species went extinct before the influence of mankind 
than has went extinct since the influence of mankind. No 
civilized country wants to make species go away. I mean, we are 
in a unique position in our country of being able to debate 
these issues and being able to spend money and crippling our 
economy to try to save species. But where does it end? We're 
listing microscopic arthropods for now. Is it going to be 
bacterias and viruses some day?
    It's to the point of ridiculousness. The success is not 
there yet. And I hope that good science interjection here would 
benefit the species as much as it would anything else, because 
what we've done to date hasn't been too successful in 
benefiting the species.
    The Chairman. Mr. Harvard.
    Mr. Harvard. You spoke earlier about the actions before all 
the science has been gathered, and we're facing that right now 
in Carlsbad and Roswell districts. They are amending the 
resource management plan specifically for oil and gas in 
relation to the Endangered Species Act.
    We were told, when we started this latest stakeholders 
group to address the lesser prairie chicken and the sand dune 
lizard, that our efforts would be completed and then would be 
reviewed by the Bureau of Land Management. They've decided now, 
we need to start--we're going to go ahead and do whatever we 
can with what we have, regardless of whether we've finished or 
not.
    That's frustrating--especially for those of us that have 
spent an inordinate amount of time working with various 
regulators, environmentalists, ranchers along the river. We've 
worked very, very hard to try to come up with specific plans. 
Part of our biggest problem is with the science. What is real? 
What is really happening? And what is a perception or based 
upon an adaptation of an analysis of another, quote, similar 
species?
    The sage grouse? We're, you know, basically everything 
that's--you're well aware of sage grouse here. Everything 
that's going off the sage grouse is being applied to the lesser 
prairie chicken. There are, I'm sure, some similarities, but 
there is a lot of differences here. As I indicated in my 
testimony, we are in a severe drought in this area, yet for 
whatever reason--and we don't know--there have been more 
chickens identified and found, sighted here in the past year.
    Why? We don't know. Scientists don't really know. A lot of 
them argue, want to say, well, no, there is not that many more. 
They are just moving around a lot more. It's very frustrating 
when our main concern is that science is being used as a hammer 
rather than a realistic tool to unbiasedly identify potential 
problems.
    There is no such thing as unbiased science today. I would 
love to think that there could be, but it's political science 
is what we're dealing with. And how that can be changed, I 
really don't know.
    But the biggest issue is to try to remove some of the 
politics out of it, and that's why amending and changing, 
revising the Endangered Species Act to consider species and 
protection of species, but also the other factors that are 
related. You've heard everybody here saying the human factor, 
the economic factors, those should all be considered. They are 
science as much as anything, yet they have no basis, it seems 
like, or very little basis in the evaluation of consideration 
of species.
    There are plenty of examples of problems with science and 
with the biased position, you're well aware. I really could go 
on and on, but it would be redundant.
    The Chairman. Mr. Tully.
    Mr. Tully. Well, I guess my thought is that good science 
sounds a lot like good art, and it's in the eye of the 
beholder. I don't really have an answer to that question. I 
don't know. I do know it's difficult, if not impossible, to 
legislate logic and reason and to include in any piece of 
legislation the parameters by which decisions will be made, as 
those decisions are made by those who must deal on a regular 
basis with the decisionmaking process.
    I'm sorry. I don't have a better answer than that.
    The Chairman. Mr. Stell, do you have any comment on that?
    Mr. Stell. A quick comment. My memory goes back to the 
northwest when the argument was used that these are the best 
scientific knowledge, that the northern spotted owl could only 
nest in the old growth forest. After that was proven to be 
incorrect and that the northern spotted owl did, in fact, nest 
in new growth, it was stated, in so many words, well, we knew 
that, it was just a ploy to stop the logging.
    I think that if the Forest Service operates properly, they 
can go into a logging area and save those large, old trees, 
save some of the younger ones, cut in the middle somewhere. You 
still have an industry and you can still have the habitat for 
the owl, too. It's going to take some invading activities.
    But the best scientific knowledge was well described by my 
co-presenter, Jon Tully. It's in the eyes of the beholder.
    The Chairman. Ms. Prukop, did you want to comment on that?
    Ms. Prukop. Thank you, Mr. Chairman. I'm actually a 
wildlife biologist by training, and I know that wildlife 
management many times is not an exact science itself. It 
oftentimes bleeds more into an art because of the nature of the 
beast. What we're working with are very difficult to 
understand, and we as humans haven't in many respects been 
smart enough to figure out how Mother Nature put things 
together.
    When you're talking about how a prairie chicken decides to 
feed and where it decides to have its moving grounds so it can 
reproduce, or whether or not an isopod in a pipe ends up 
contributing in some way to mankind's understanding of how 
we're going to survive on this planet, that's why I think the 
term has evolved to be often best available science.
    And another thing I learned in graduate school is how to 
lie with statistics. Well, you can also lie with science in 
terms of how you bias your research because you do, indeed, 
have a foredrawn conclusion. And I think that that certainly 
does occur in the scientific world. And peer review is one way 
that has evolved over time to get around that.
    And as a member of the Wildlife Society, which is a 
professional organization that wildlife biologist belongs to, 
we certainly do believe very wholeheartedly in peer review, and 
use it and are able to, you know, determine who are the 
acknowledged experts about a particular species or particular 
habitat type or that kind of thing. So I think I would 
personally advocate for a more useful mechanism to use to try 
to get closer to the point in terms of how to recover some of 
these species.
    I do think that, as you're well aware from your long 
contact with this topic, trust is a huge issue in terms of how 
do landowners, state agencies, and the U.S. Government work 
together to get around what we're willing to do to trust each 
other to see how we can promote the recovery of a species.
    I do want to advocate for, as we think about how to use 
science, we can apply science more effectively, which I think 
is our goal, if we can learn, indeed, in terms of how to be 
more flexible and more adaptive, and to, I think as you 
mentioned, not have one solution for all species, because we 
deal with a wide variety of species. They have very different 
needs, very different problems, because the concerns that arise 
for species across the country, whether you're talking about an 
insect, a plant, a bird, such as the Aplomado falcon or a fish 
in the river.
    So I think one of the things we need to do is build into 
the Act, but also then into the interpretation and the 
implementation of the Act, how to use science in such a manner 
that we can be more flexible in our thinking in terms of the 
variety of species that we're trying to recover.
    The Chairman. On the Walden bill, what is it about that 
bill that you have opposition to.
    Ms. Prukop. Well, I'm not--I have to admit that I'm not 
terribly familiar with the specifics of the bill in terms of 
what's required. I think I have a copy of it here with me. But 
again, as I mentioned before, coming to agreement on what peer 
review--who will be used as peer reviewers, what the make up of 
that kind of a process would be, and then coming to agreement 
on how to interpret what we get are issues. And again, my 
fundamental belief is it's all related to trust.
    The Chairman. Maybe you could answer this for the record 
for me, then, because in listening to what you're saying, I 
come away with the impression that you would support the Walden 
bill and what they are trying to do, and yet you've testified 
in your statement you said that you oppose that bill. And I'm 
not exactly sure why.
    And if you're not prepared to answer that, that's fine.
    If you could just give me, for the record, if you could 
just give me an idea in writing as to what the opposition is to 
it, because I'm not exactly sure. That's a bill that I've 
worked on for a number of years and we've tried to address a 
lot of the concerns that were originally brought out on 
changing the provisions, the science provisions in the Act. And 
a lot of things you talk about, we have done in this particular 
bill. So I'm a little confused as to why you oppose that 
particular bill at this time.
    Ms. Prukop. Mr. Chairman, if you would allow me the 
opportunity to go back and review the bill in detail and, 
indeed, issue you a written statement and explanation, I'd be 
very happy to do that, and I'd appreciate that.
    The Chairman. All right, thank you. I'm going to turn it 
over to Congressman Pearce.
    Mr. Pearce. Thank you, Mr. Chairman. And I've gotten 
several questions, so I'll just ask that your answer be shorter 
rather than longer, because the Chairman has a lot of time, and 
as a freshman, I get less time.
    First of all, I have begun to implement one of Joe Stell's 
suggestions already, giving more weight to the human factor 
with the receptions and dinners that we have to go to in 
Washington, and I've adequately attended to giving more weight 
to my human factor, Mr. Stell. I appreciate that suggestion.
    I think that my next question would be to Madam Secretary, 
on page 1, where your fourth bullet point begins to talk about 
the impact of fish, or symptoms that the ecosystem is not 
functioning naturally and the loss of fish species is a sign of 
what humans are doing to change the natural water systems, and 
I would gather from that that you would say that that we would 
be better off as far as those species if we did not have any 
collection systems up and down the Rio Grande.
    Ms. Prukop. Not necessarily, Representative Pearce. But one 
of the things that has frustrated some segments of our 
citizenry in New Mexico over the years is that New Mexico has 
no minimum instream flow law. In other words, you can totally 
dewater a watercourse in our state, which is not the case in 
many other states where, historically, there had to be some 
minimum flow left in rivers and streams, and minimum pools left 
in lakes and that kind of thing.
    New Mexico's history, however, is quite different. And 
since we didn't start out that way, with minimum instream flow 
as a premise of the way we're going to manage rivers in our 
state, we are in a situation now where essentially our rivers 
are over-allocated.
    Here in the Pecos River Basin, we have come to understand 
over time that what happens with the Pecos River is very much 
related to what happens--
    Mr. Pearce. With your permission, I'd like to scoot back 
over to the question, then, because--and we'll use the minimum 
flow concept there--is there any point in your mind at which 
common sense would dictate that, I mean, that we not do what 
we're doing? In other words, before you became secretary about 
2000, I watched as somewhere between 50 and 80 percent of the 
water in all of our upstream reservoirs was dumped in a matter 
of months. It took 50 years to get it in there. It was dumped 
out in a matter of months to maintain that flow.
    And I'm asking, Is there any point at which common sense 
would say, as soon as we dump our reservoirs, then the flow is 
going to go to what nature is going to tolerate? Is there a 
point at which common sense would say, Why are we going to do 
this? Why are we going to dump it to maintain a flow nature 
herself would not maintain?
    Ms. Prukop. I would agree that it would because we've been 
in a severe drought in New Mexico for the last three or 4 
years. It is projected that the drought will, indeed, continue, 
and that simply exacerbates all of the decisions we're trying 
to manage here as we look at water management on the Pecos.
    Mr. Pearce. Because the frustration of the farmers is we 
went ahead and dumped that water, and now it's not available 
for next year's irrigation season. And with all due respect, 
when you say--on page 8 when you declare that to be an 
overblown gloom and doom is exaggerated, when we dump all of 
the water that is in a storage system for irrigation in order 
to keep a species alive, and we're dumping it at a rate we 
cannot sustain because the rain is not there, it does, it is 
beyond just exaggerated doom and gloom.
    It actually, what I see, is an impact that several people 
have commented on. They were at the risk of losing our 
industry. And for me, I always wonder if the people 
implementing decisions are asking these kinds of questions. 
Because when I sat on the water committee with Representative 
Stell, Michael Sanchez, the Democrat senator from Valencia, had 
a tremendous summer session, and they gave us a 2000-year 
summary of water in New Mexico, and we went--we've been in 200- 
and 300-year droughts. Sometimes the Rio Grande was completely 
dry, or stretches of it were completely dry for 10 years at a 
stretch.
    I'm sorry. When we say that we're going to dump all the 
storage that irrigators by law have access to, these storage 
reservoirs were built for the irrigators, and the water is 
turned loose instead for endangered species that nature will 
not supply that same flow, I worry that the law is being used, 
the endangered species law is being used in a way that impacts 
humans very adversely, not minimally adversely.
    If we were to, Mr. Tully, we were to look at the impact of 
the endangered species--not so much the endangered species--
I'll just broaden it a little bit into the concept of selling, 
reclaiming water rights, repurchasing water rights, and taking 
agriculture out of production in order to comply with certain 
flow rates, this flow rate that we're talking about mostly is 
for Texas delivery, but it's also impacted because we're 
trickling the water out of Sumner Lake and trickling does not 
surge enough water to get here to make your deliveries, so the 
Endangered Species Act is being used to trickle water out, we 
can't get a flow that gets enough water here to deliver, so we 
have to take agriculture out of production, what's been the 
effect on the gross receipts tax in the last 20 years along 
this valley as we take economic agricultural land out of 
economic production?
    Mr. Tully. Representative Pearce, I don't have those 
particular figures specific enough to agriculture to be able to 
answer that question. But when you look back at the figures 
I've seen, which I certainly can't quote here today, 
agricultural land has been diminishing over many, many years. 
And so one would assume that the proceeds and, consequently, 
the gross receipts from agricultural production would also be 
decreasing.
    The issue that you point here is one of those areas where 
the Endangered Species Act and, in this case, specifically the 
Texas/New Mexico Pecos River Compact, collide. And while I'm 
not going to say they are totally incompatible, the prudent 
management of the compact does not suggest that trickling water 
is the most effective way to meet New Mexico's obligation.
    Mr. Pearce. Thank you. Madam Secretary, again, as the head 
of the minerals department, I guess I look nationally at the 
price of natural gas and realize that we had testimony last 
year in one of our committees that pointed out that when we're 
at $5 gas, natural gas, we're competing with Russia and Africa 
that have 50 cents and 70 cents respectively.
    Now, the question of access into land becomes very 
critical. And at what point do you personally balance this need 
for affordable energy versus what you're willing to do as a 
cabinet secretary to protect, say, the whichever grouse, the 
lesser prairie chickens?
    Ms. Prukop. Well, I think that myself and Governor 
Richardson are on record as being very supportive of the oil 
and gas industry in the State of New Mexico when exploration 
and development is done in an environmentally compatible way. 
We work with the Bureau of Land Management and with industry in 
various parts of the state to try to keep New Mexico at the top 
of oil and gas production in our country.
    And as I'm sure you're aware, New Mexico is number one in 
coal bed methane production in this country, and we have over 
28,000 wells up in the Four Corners area of the state and are 
getting ready to put in approximately another 11,000, again, to 
produce natural gas for this country, and again, keep New 
Mexico generating those oil and gas revenues and trying to keep 
the price of natural gas down.
    One of the complexities with natural gas, as I'm sure 
you're aware, is that most of our electrical plants built these 
days, especially those in California, are natural gas plants 
because they are clean burning and air quality is an issue. In 
the southeastern part of the state, of course, we also have a 
lot of oil and gas production. And our oil conservation 
division, which is in the department that I manage, works very 
cooperatively with industry in the southeastern part of the 
state to try to get wells permitted and get production going as 
expediently as possible.
    I know that industry has issues with the BLM and to some 
degree perhaps with my agency, but more so with the Federal 
government to get permits out on a more timely basis. And I 
know the Federal government is working to try to expedite that, 
as is our oil conservation division.
    I may as well bring up Otero Mesa, since it was mentioned a 
couple of times here today. This Administration happens to feel 
that Otero Mesa is an ecologically unique area that we would 
like to preserve in ways different than what has been done in 
the southeastern part of the state. I think anyone here in this 
room, certainly yourself, Representative Pearce, and Chairman 
Pombo, have flown over this country and seen what it looks like 
when you're coming into Carlsbad and see the density of well 
spacing around this city and around cities like Hobbs. And it's 
that kind of density that we're trying to preclude from Otero 
Mesa.
    We know that Otero Mesa, two wells were drilled by 
Threshold in one region, one part of that country, and turned 
up to be not productive, so they were plugged. We know that 
Hake Oil drilled two wells and it looks as though one of them 
is promising for gas. And although that information has not 
been widely shared, and understandably so. So we don't know 
exactly what the resource is in that particular part of Otero 
and Sierra County.
    So my personal perspective is that, yes, I understand a 
need for oil and gas production in this country, not to mention 
in this state, and I feel that the degree to which we can do 
that in an environmentally compatible way is very important, 
because once we've burned this oil and gas, which is all we 
have, because the animals that went extinct thousands of years 
ago that Tom was referring to are not going to be making any 
more oil and gas in the near future.
    I feel that we should be conserving our fossil fuels to the 
highest degree that we can while supplementing our energy 
sources with renewables, and I think we can balance production 
of fossil fuels, particularly out of our Federal fluid minerals 
in a way that will make them last longer, and I would advocate 
for that.
    Mr. Pearce. Mr. Chairman, I have a couple of more questions 
on this round, but in follow-up on that, then if we assume that 
today's standards of drilling and whatever are the standards 
and if we understand that we're losing 78,000 chemical industry 
jobs a month overseas, you're saying that you would not change 
your standard. I guess that's not quite a good question.
    The question is, Is there any point in the loss of industry 
and jobs at which we change the standard by which we're 
measuring whether or not we would drill? If we could accelerate 
the loss of jobs and the impact into the nation's economy, is 
there any point at which you would feel like that you would 
judge differently than you've judged currently on the access 
into the Otero Mesa?
    Ms. Prukop. You mean in terms of if certain kinds of 
approaches to energy development cost jobs, and that direct 
relationship?
    Mr. Pearce. No. You said that you feel like it's an area 
that you want to protect and claim, and I can accept that. My 
question is, Do you ever look at the external economy in the 
world and in the country and evaluate the job losses and the 
threats to our overall economy? Because I see that high natural 
gas prices in the five- to ten-dollar range are a threat to our 
nation's economy. The loss of jobs has accelerated overseas, 
and going to the areas where natural gas is 50 cents and 70 
cents rather than five and ten dollars.
    And I'm asking, Is there any point at which the loss of 
jobs and the loss of infrastructure and the loss of capability 
to produce our own resources internally in this country would 
drive you to a different decision, assuming that oil and gas 
production doesn't change and assuming that the wilderness 
designation doesn't change or whatever? Do economic impacts 
ever influence your decision?
    Ms. Prukop. Certainly they do, and the situation that you 
just related is very complex, and it's not as simple as whether 
or not we drill on Otero Mesa. We know, everyone in this room 
who is an experienced business person or simply a citizen of 
this country, who has watched our country develop over time, 
recognizes that there are impacts to industries and way of life 
that over time cause change, both in terms of the degree and 
scope of what that practice might be.
    Farming and ranching is a perfect example. The small family 
farm has essentially disappeared because of economics, and many 
decisions were made, governmentally and otherwise, that 
affected that evolution. And so evolutions of those kinds occur 
in every industry.
    When you're trying to look at the oil and gas industry and 
this country's energy needs and how that's tied to what's going 
on at the global level, I do understand the implication of your 
question. And yes, economic development and economic 
opportunity is very important, but so are quality of life 
choices. So the best answer I can give you to your question is 
that we need to seek balance.
    Mr. Pearce. I would agree with that.
    Mr. Chairman, my last comments are simply that I did fly 
over Otero Mesa and I happened to have Albert Teimer of the New 
York Times with me, and he looked down there and said, Am I 
getting this right? The whole Otero Mesa discussion is over 
that property down there? That wasn't me, I was just flying 
along and he was beside me in the airplane. He was less than 
stunned by the sight.
    The second point that I want to make is that, again, going 
back to the original point that the impacts, the fish species 
are symptoms that the ecosystems are not functioning naturally 
and the loss of species, that humans are going to change a 
natural system, my observation is I was trying to get my staff 
to come up with absolute figures, but of course, it's 
impossible. But prior to significant human changes in the 
environment, 99.5 percent of all species that ever existed have 
gone extinct, and most of those extinctions, tens of thousands 
of extinctions, occurred before significant human intervention.
    And yes, there have been species that continue to go 
extinct, but I think to declare that humans are the only and 
main reasons that species are going extinct tends to get us 
over on the side of the question that said that we must have 
total nonhuman intervention, which is where the extremists have 
taken the issue.
    And we've heard the panel discuss about the extremists' 
interpretations. I don't think any one of us would sit here and 
watch a species go extinct. But I think the question is what 
sort of comments do we make about the environment and about 
human rights, about our property rights, the constitution as it 
affects property rights, those are questions that this 
miscasting or perception that humans cause all extinctions 
drives us away from reality and closer to a position that takes 
us and pits us against each other. And I don't think that's, in 
the long-term, profitable.
    Mr. Chairman, I would turn it back over to you.
    The Chairman. Well, interestingly listening to this going 
back and forth on it, because we have--we've kind of developed 
the thought in this country that we don't want to approve any 
new development or any human activity unless we can mitigate 
the environmental impact, unless we don't have an environmental 
impact from that. That sets us up to fail, because anytime 
humans do anything, there is an environmental impact. When you 
walk across on a nature hike, you could scare a mating pair of 
some endangered species walking across on your nature hike and 
disrupt the environment by doing that. I mean, anytime we do 
anything, we have an impact on the environment. And the goal 
should be to have as little impact on the environment as we 
can.
    And that has to be where we go with this. You can't say 
that we're not going to have an impact on the environment. That 
is an impossible level to maintain. And Mr. Davis talks about 
the history of this watershed and at what points dams were 
built. I don't know that much about this watershed and what's 
happened here. I know a lot about California's. We have 
endangered salmon. We have a winter run salmon that is listed 
as an endangered species in California. And yet a lot of the 
guys, a lot of the biologists have come back and said, Before 
we had the Shasta Dam, we didn't have a winter run salmon, 
because there was no water running through that system during 
the summertime and into the fall in order for the winter run 
salmon to come up. And yet we are now protecting it as an 
endangered species and regulating flows coming out of the 
Shasta Dam based upon that endangered species, which, in 
essence, was created by human activity.
    And I would suspect if you go back over the last hundred 
years, that human activity on this watershed has changed the 
species that exist there, and none of us can doubt that, 
because you build dams, you build irrigation systems, you 
change what is here.
    You talk about the spotted owl in California. We have 
proven beyond any doubt that it can survive in places other 
than old growth forests. I wish it was just old growth forests, 
because then we could still use the rest of the forest. But now 
we're regulating the entire forest, 30, 35 million acres of 
forested land in California, based upon activities of the 
spotted owl. And the result of that has been devastating 
economically. And yet that can't be our only decision. We have 
to look at what the environmental impact is, as well.
    We've tried, a number of different times and ways, to look 
at the Endangered Species Act and to try to make some sense out 
of it and to have it implemented in a way that mitigates as 
much of our impact on those endangered species as we can, but, 
at the same time, takes into account that humans are part of 
the environment, that our activity does have environmental 
impact, and we have to measure that. We have to consider that.
    One of the other major issues that we are dealing with is 
critical habitat. And right now, the way that the law is 
operating, the way it is being implemented is that you have a 
species that is listed as an endangered species, there is a 
certain time limit in the law for designating critical habitat. 
There is not a time limit in terms of developing a recovery 
plan.
    So because of lawsuits, because of the way the law is 
functioning, what is happening is the species are being listed, 
and many times under what I would consider questionable data 
that comes in, gets listed as an endangered species, which 
starts the clock ticking for critical habitat to be designated. 
Once that critical habitat is designated, it's done with 
incomplete information, and we're trying to bring that in line 
in terms of what the recovery plan, where these species exist, 
what is needed for that species to recover, and then adopt 
critical habitat. And that is one of the bills that our 
Committee will be acting on, is dealing with what critical 
habitat is actually necessary for the recovery of the species.
    And that and the science issue are probably the two issues 
that we need to get our arms around. We need to figure that 
out. There are people that are going to oppose that 
legislation. They have opposed every single bill that's been 
introduced to amend the Endangered Species Act in any way from 
the very beginning. And they profit from the way the Act is 
being implemented right now, and that is one of the 
frustrations I have.
    I have yet to talk to any responsible biologist who will 
tell you that the Act is operating the way that they want it to 
right now. People who truly care about the environment and 
truly care about recovering species look at the way the Act is 
being implemented and say, we've got to do a better job. We 
can't continue doing this the way that we're doing it. We have 
to do a better job. We have to change the dynamics of this 
debate so that we truly can recover species and stop species 
from becoming extinct. Under the law right now, that's not 
happening. It's not--you know, it's a series of court cases and 
administrative decisions which has led us to this point.
    The other thing that I always hear is the major problem 
with the Act is we don't spend enough money on it. And, you 
know, we are spending right now billions of dollars in public 
and private money every year under the Endangered Species Act 
and yet we don't spend enough money on it. The only problem is 
we need to appropriate more money. And I think that is an 
extremely shortsighted view. And unless you work for Fish and 
Wildlife Service and you need more money for your budget, it's 
a pretty shortsighted view of what's wrong with the Act.
    Before I adjourn this hearing, I did want to give 
Congressman Pearce a chance. I know he had a couple more 
questions that he wanted to ask, but I do have additional 
questions that I would like to submit in writing to the panel, 
because there are some issues that--dealing with science and 
dealing with critical habitat that I would like you to have a 
chance to think about and answer for the record, because those 
are probably the two big issues that we really need to move 
forward on right now.
    And having this opportunity, being out here and listening 
to you, I think it would benefit the Committee. It would 
benefit me, but it would benefit the Committee to have the 
opportunity to have you guys think about that and give us a 
response. Congressman.
    Mr. Pearce. Thank you, Mr. Chairman.
    Ms. Ogden, you had testimony that was pretty much 
diametrically opposed to the secretary's on whether or not the 
endangered species was a vital and a real problem. Can you give 
me some real specifics about how it's impacting your 
capabilities or whatever.
    Ms. Ogden. The bluntnose shiner. As a farmer--I have two 
hats, I farm and ranch. So as a farmer, the bluntnose shiner 
has had a great impact on our water deliveries. As I said in my 
testimony, because we do not have water wells on our farm, 
we're in an area where the underground water is of such poor 
quality that we can't put the underground water on the surface 
or it would ruin the land.
    So we're directly--when there is water in the dams, in the 
reservoirs, then we're able to farm. When there isn't water, we 
are unable to farm. Last year farmed on 14 inches of water per 
acre. There was a comment saying that that's just about dry 
land, and yes, it is. So whenever the irrigation system is 
unable to do the best they know how to do to have the most 
optimum use of the amount of water because of having to go and 
jump through the hoops that they've had to jump through for the 
Fish and Wildlife Service, then it is making those of us in the 
Carlsbad Irrigation District have less amount of water that 
we're able to use, you know, to put on our farms and to be able 
to use to impact.
    Last year, I farmed a third of my farm as a result of the 
drought and the low amount of water, and I can tell you it had 
a big impact on the economy in this area. It had a big impact 
on our ability to keep employees. We had to let employees go 
because we did not--were not able to farm as much. And so it 
does have a great impact on not just me personally, but other 
people in this area as far as that goes.
    As far as the ranching, the impact has been more broad as 
far as what we can and can't do. The willow flycatcher, 
southwest willow flycatcher is a big one, more so in the 
Socorro area, where they came in and just arbitrarily had a man 
remove his cattle off of his BLM permit because they thought it 
was having an impact. And then I since found out that wasn't 
the case.
    But it did take us going all the way to the 10th Circuit 
Court of Appeals on that situation. And we have spent, you 
know, over a quarter million dollars. On one case alone, it was 
$200,000, just in the agriculture industry, in trying to fight 
these things. So we're having to, as individual ranchers, we're 
having to put so much of our money toward the protection of our 
livelihood because of the impact that the environmental--the 
Endangered Species Act has had on us.
    Our director of Cattle Growers spends, I'd say, 90 percent 
of her time putting--trying to help put out fires or things 
with the Forest Service, the Fish and Wildlife Service, all of 
these things. She is spending more time on litigation to help 
keep us viable as a ranching industry than on other areas, you 
know. It's our main focus at every meeting is on the litigation 
that's come up and what's the impact that it's having on us. 
And it's having more of an impact than the environment ever 
would.
    As I said, my family settled here in 1890. Why they stopped 
here, I haven't figured out yet.
    Mr. Pearce. We all may ask that question. Thank you.
    Ms. Ogden. But anyway, the endangered species is what's 
having the impact on us now.
    Mr. Pearce. Mr. Harvard, you said you're one of the 
volunteers working on the partnerships. How effective is the 
partnership on the lesser prairie chicken as far as bringing 
all the stakeholders together, as far as coming to real 
solutions that acknowledge the environmental concerns, the 
industry concerns, the regulatory concerns? How effective is 
that group?
    Mr. Harvard. Well, it depends on who you ask. Since you're 
asking me, I think that in some ways it has been very 
effective. We have come up with some real potential solutions 
or plans which can help the prairie chicken, and we have been 
successful in at least trying to educate some of the other 
members of the realities associated with oil and gas operation 
and ranching operations and the necessity of those operations.
    I think that--I think it is successful. I think we need to 
continue working toward--working together with all parties, not 
just the scientific community. Your question, Chairman Pombo, 
to us from the science aspect is very important. But I think 
having on-the-ground input from the actual users and 
participants in the--you know, in the species or the affected 
parties of these species is very important.
    I've been--it's a frustrating process in many ways because 
we continue to try to identify real solutions, yet it seems 
like from the environmental community's standpoint, the 
solutions are not--the only solution that is acceptable is the 
removal of land, is the habitat and having no impact at all on 
that habitat. And as you pointed out, that's not real. That is 
not acceptable and it's not doable.
    But yet trying to get that shift away from the habitat 
alone to, all right, we have a species here that, for better or 
for worse, covers a large amount of Federal land, therefore, 
has the ability to be controlled more actively than some of the 
other areas. The lesser prairie chicken community, we're on the 
fringe of the population in this area, yet we're one of the 
prime areas of consideration for improvement of that habitat.
    It's a difficult situation because, as we know, any fringe 
population is subject to the increases and decreases in 
population because of many different factors, and the majority 
of it being nature. Yet man is being called upon and industries 
are being called upon to come up with specific ideas that will 
improve, when your impact on that species is minimal in 
comparison to nature itself.
    I would at this point in time, I guess, continue to offer 
my services and the idea that the stakeholder process is 
necessary. I hope that we will--that our input will be taken to 
heart and implemented and not just discounted, like so many 
other of stakeholder processes. There has been a five-state 
working group on the prairie chicken for I don't know how many 
years.
    Mr. Pearce. I think that was my point.
    Mr. Harvard. Yes.
    Mr. Pearce. That if we have conclusions from partnership 
groups and they are ignored, then how effective is it? That's 
my question.
    Mr. Harvard. And to answer that question, right now I can't 
say it's that effective. But from our standpoint, if we don't 
continue to speak about it, to stand up for what is real, I 
don't know, then we basically are going to have to go someplace 
else. And we really don't want to do that.
    Mr. Pearce. Thank you. Mr. Chairman, my last questions are 
for the secretary. Madam Secretary, you made the comment that 
the problem with the Endangered Species Act is that it has not 
had enough money to implement it. When I see that we spent 
something between half a million and one million dollars per 
wolf to reintroduce them and we spent, I'm told, hundreds of 
millions of dollars to have a success on the Gila trout, how 
much money do we really need, in your opinion? What dollar 
figure do we need to successfully--to make it where that the 
money is not the problem.
    Ms. Prukop. I'm not certain that I can put a dollar figure 
on that.
    Mr. Pearce. If we would scoot over, then, and tell me one 
project where the government underfunded and completely ruined 
the process for the biologists.
    Ms. Prukop. Because there was not enough money to go 
forward?
    Mr. Pearce. Because they failed to fund adequately and it 
was Congress's fault? Or was it the Fish and Wildlife 
determining where those billions of dollars are spent.
    Ms. Prukop. I understand that the root of your question is 
this notion the money that we have allocated, which has been 
substantial, have we used it effectively? The answer is no, for 
a couple of reasons. And as we were discussing earlier today, 
the interpretation of the ESA across the Nation in different 
regions of the U.S. Fish and Wildlife Service has varied, and 
the bureaucracies that have been developed in some of those 
regions and some of the offices, et cetera, that takes a lot of 
money and has not been effective, and also litigation is 
pulling money away from on the ground effectiveness.
    So wrapped into your question is the notion of how much 
money are we putting toward it and how much is being 
effectively used? I would agree with you, because I think 
what's underlying the question is the fact that a lot of money 
that we've put toward the Act has not been effectively used, 
because it's been tied in litigation especially regarding the 
Chairman's point about critical habitat designation.
    So a real answer to your question, sir, would require 
looking at how money has been spent in the past, how to 
determine what effective use of money is, and then how to 
circumvent or find ways to resolve issues such that so much of 
the funding is not diverted to nonproductive use.
    Mr. Pearce. Thank you. Mr. Chairman, I would just conclude 
saying thank you for taking your time to come to our district. 
We see our problems in very minute detail and look at the 
problems across the whole country, and I don't know exactly 
what the outcome is. I understand that we're going to have an 
endangered species bill, and I don't think there is anyone in 
this room who would not want one.
    But I keep hearing the word balance throughout the day, I 
think it's necessary that we try to find that balance. We just 
this year made one small incremental change in the Endangered 
Species Act and for the first time we can consider national 
defense. For the first time when we create a critical habitat, 
we can consider national defense.
    So that case came up because of the 17 miles of coastline 
that Camp Pendleton has, 16 and a half miles of that were 
unusable because of a different variety of endangered species. 
So the area where we trained for Iwo Jima was shut down, 95 
percent was shut down because of the way that we're doing our 
critical habitat and designating that.
    I think that the Chairman has adequately said that we will 
look carefully at all the options. So thank you, Mr. Chairman, 
for bringing this discussion to Carlsbad, New Mexico.
    The Chairman. Well, thank you very much. It's been with a 
lot of hard work and insistence by Congressman Pearce that we 
were able to come back to New Mexico and take the opportunity 
to come down here and listen to people that are dealing with 
the implementation of the Act every day. The effort that this 
Committee is making to take Congress outside of Washington and 
have them go out and listen to people, last year we had about 
50 hearings like this around the country where members of the 
Committee went out and listened to people that are dealing with 
the Act and dealing with other issues that we have before the 
Committee. I think it's extremely important for Congress to do 
that and actually get out and listen to the people.
    I want to thank the witnesses for your valuable testimony 
today. It is important, as we move forward with trying to 
implement our nation's laws, that we have the testimony and the 
input of people that have to deal with it on the ground. I know 
when I first got elected, one of the things that surprised me, 
coming from an ag background, was how many people in Washington 
understood how farm programs worked, but had no clue what the 
impact of those programs were on people out in the real world.
    And many times in dealing with our nation's environmental 
laws, it's very similar to that. They understand how the 
program works, they understand how the Endangered Species Act 
is supposed to work in terms of the law, but they have no clue 
what the impact is on real people. And I've made a real effort, 
with the help of Congressman Pearce, have made a real effort to 
get members of the Committee out to listen to people that have 
to deal with it on the ground. So your testimony is extremely 
important to this Committee. It's important to us in our 
efforts to move forward on this issue.
    I'd also say to the members of the audience who took the 
time and trouble to be here, thank you for doing that. I know 
that we were not able to hear from everybody who wanted to have 
input into this hearing today. I am going to hold the hearing 
record open for 10 days to allow anyone the opportunity to 
submit written testimony to the Committee. It will appear as 
part of the official record of this hearing. So if anybody has 
additional comments that they would like to make, the hearing 
record will be held open for 10 days, if you could submit that 
in writing to the House Resources Committee, or if you can send 
it to Congressman Pearce's office, he can forward it to the 
Resources Committee so that it can appear as part of the 
record.
    Again, I want to thank the people of Carlsbad for hosting 
us here today, the mayor, our Boy Scouts, the reverend for 
helping with our opening ceremonies here today. Thank you all 
very much.
    If there is no further business before the Resources 
Committee, I again thank the witnesses, and the Committee 
stands adjourned.
    [Whereupon, at 10:26 a.m., the Committee was adjourned.]

                                 
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