[Congressional Record Volume 145, Number 60 (Thursday, April 29, 1999)]
[Senate]
[Pages S4423-S4426]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE FLAWED ENDANGERED SPECIES ACT
Mr. DOMENICI. Mr. President, I rise today to share with my fellow
Senators
[[Page S4424]]
an extraordinary exchange that occurred last week in the Interior
Appropriations Subcommittee when they were conducting a hearing under
your chairmanship regarding the year 2000 budget for the Department of
Interior.
As some of you here may know, Secretary Babbitt and I, while both
being from adjacent Western States, have not agreed on a lot of land
management, water, and endangered species issues affecting the West.
However, last Thursday a most unusual and enlightening thing took
place. We both agreed that, regarding the impact of the Endangered
Species Act on desert States like New Mexico, the current
implementation of the law does not work.
I ask unanimous consent Secretary Babbitt's testimony be printed in
the Record. It is not yet an official record because the entire
transcript has not been completed, but it is a literal translation of
what he said that day.
There being no objection, the testimony was ordered to be printed in
the Record, as follows:
DEPARTMENTS OF THE INTERIOR AND RELATED AGENCIES APPROPRIATIONS FOR
FISCAL YEAR 2000
______
THURSDAY, APRIL 22, 1999
U.S. Senate, Subcommittee of the Committee on
Appropriations,
Washington, DC.
The subcommittee met at 9:33 a.m., in room SD-124, the
Dirksen Senate Office Building, Hon. Slade Gorton (chairman
of the subcommittee) presiding. Present: Senators Gorton,
Stevens, Cochran, Domenici, Burns, Campbell and Byrd.
UNEDITED PARTIAL TRANSCRIPT
Senator Gorton. Senator Campbell?
Senator Campbell. Mr. Chairman, Senator Domenici has to--he
has another very tight commitment.
Did you want to ask a question before I go?
Senator Domenici. I would really ask if I could ask two
questions. I have to preside at a committee hearing at 10:00
o'clock, and I will be a little late to that.
Senator Gorton. Fine, fine. Go ahead.
Senator Domenici. Thank you.
Mr. Secretary, I am going to submit some questions to you
with reference to the drought in the State of New Mexico,
which will essentially be asking you if you can make sure
there is a coordination of all of the federal agencies, some
under you, as to what might be done.
We are--we are clearly--I do not know if you know this, but
we are destined this year to have the worst drought we have
ever had. Our rivers are going to run dry, and a lot of
things are going to happen that are very, very bad. And I
will ask you about that in detail.
But now I wanT to raise an issue that is related to the
drought and share it with you with reference to the
Endangered Species Law, and I think you are aware of this.
Mr. Secretary, New Mexico, like Arizona, is a very arid
state. Folks here in the Beltway are primarily unaware of the
critical needs for water out there in the West. We are very
grateful that you come from out there and you know about
these needs.
With the lack of snow pack and precipitation in New Mexico,
we are going to have a drought. In fact, parts of the Rio
Grande River which you are familiar with, which historically
has gone dry at various times, may dry up as early as this
week, believe it or not.
The traditional stresses of water users are only made more
difficult by litigation regarding the needs for the silver
minnow endangered species. A recent notice of intent to sue
by the Forest Guardians and others--that is an entity in New
Mexico--threatened to force the release of stored water in
any of Heron, El Vado, Abiquiu, and Cochiti Reservoirs to
maintain--quote, ``to maintain the riparian habitat
necessarily for the survival,'' of the silver minnow and the
willow flycatcher.
I am concerned about water necessary for the survival of
New Mexico, our cities which use that water, our irrigators
which have--as you know, under our water system, they have
primacy as per the time they applied it to the ground, and
they own much of that water.
In the lawsuit which sought to force immediate critical
habitat designation, you, as the Secretary of Interior, in
the lawsuit which I will make available to you, you argued
that the Department did not have the data necessary to
determine water amounts needed for the fish.
Fish and Wildlife Service Director Rappaport-Clark stated
in an affidavit that: The Service must comply with NEPA
requirements and perform an economical analysis of the
impacts. The EIS would likely be needed which would require
more time for the habitat designation. The Environmental--the
ESA requires that the Service, when designating critical
habitat, take into consideration the economic impacts of
specifying any particular area as critical.
I wonder if you would share with the committee, as soon as
you can, answers to the following questions, and if you could
answer them right now, it would be very helpful.
Secretary Babbitt. I would be happy to. I would be happy
to.
Senator Domenici. Without scientific data available for the
minnow, water needs, nor reliable economic analysis, will not
the Department need additional time to follow through and
find out what the needs are? You have stated that in the
lawsuit, but would you tell the committee if that is the
case?
Secretary Babbit. Well, Senator, if I may----
Senator Domenici. Please.
Secretary Babbitt. I would like to step back and frame this
issue and then specifically answer your question.
Senator Domenici. Sure.
Secretary Babbitt. Senator, I do not think it is any secret
that we have not had much luck in our relationship in finding
common ground in New Mexico.
Senator Domenici. No.
Secretary Babbitt. But this is another tough problem being
served up, and let me just say that notwithstanding our
failures in the past, I intend to do everything I can to see
if we can work our way through this.
Now, let me say this also: I believe that our failure to
work out a reasonable relationship is in some ways due to the
underlying fact that in New Mexico, more than any other
western state, including Alaska, Colorado, Montana and
Washington, these issues are characterized by intransigence
on both sides.
I have never worked in an environment in which the natural
resource users have been so rigid and inflexible; and I would
say exactly the same thing of the environmental groups. Now,
it is in that context that we must deal with this problem.
I have voiced my concerns about the way that we are
mandated to use the designation of critical habitat under the
Endangered Species Act. It does not work. It does not produce
good results. It should be modified, because the Courts are
driving us to front-end determinations which, more properly,
should be incorporated in recovery plans at the back end when
we, in fact, have the information.
Now, the Courts have laid out a set of case decisions here
that have put us in a straitjacket. They are not going to
give us the kind of time we need because the Act does not
allow it. So that is just the bottom line.
Doe we need more time? Yes. But the Endangered Species Act
does not give it to us. The Courts do not give it to us. And
we are going to proceed with declaring critical habitat. I
would prefer not to. It is a--it is not productive. It is
incendiary, and it will be in this case.
Now, finally, let me say, and then I will back off, that I
believe that there are solutions available here. It is going
to take some movement by those middle ground irrigation
districts. They do not have a reputation for water use
efficiency. And there are many ways, I believe, that we
could work something out. They have not shown the
flexibility that we have found in other places, like in
Eastern Washington, in Colorado, and elsewhere.
The environmentalists may, in fact, be making--not ``may,
in fact,'' but are, in fact, making some unreasonable demands
about their version of what the hydrology of the Rio Grande
Valley ought to be like.
I would like to continue attempting the work. I have talked
with the Bureau of Reclamation. I believe we have some water
resources that are going to allow us to stagger through this
season, with a little bit of flexibility.
Senator Domenici. Thank you very much.
I know I used a lot of the Committee's time.
But I compliment you on your statement, and--while I do not
necessarily agree with you characterization of my fellow New
Mexicans as being intransigent and the worst in America, as
you have just phrased it, but--but I do believe that
something is terribly bad in the way the Courts are handling
this situation because you have to close down a river to
users without knowing what the habitat--what the water is
needed for the--what water is needed for the endangered
species.
It is an impossibility. Maybe we could fix that here. It
probably would bring the world down on our necks, even if we
tried to do what he suggested. But we ought to think about
that.
Let me make sure that everybody understands the seriousness
of this problem. I grew up within eight blocks of this river.
And for many years of my younger days, I used to walk to this
river, and many times it was dry.
So for those who are used to rivers in your state or in
Alaska that run all year long and were having arguments about
salmon fish habitat, we do not have that. We have a river
that, for much of the time, does not have any water in it.
On the other hand, we built storage places that make it
better now. We do have more water, and we have a different
water system than most of you. Our water system is based
upon: The first one to use it and apply it to a beneficial
use owns it, and they own it as of the date they did it. And
they are valuable; you can sell those rights.
Now, the problem we have is that the endangered species
comes along with litigants who know how to use the Courts,
and they say, regardless of those water rights, you have to
save the fish, the minnow.
Now, the minnows have survived, I believe, during eras that
I have told you about. When there is no water running in the
river, they
[[Page S4425]]
have survived in some other place in the river where there is
water.
And now what we have is a drought and rivers that do not
always run wet, and we have at the worst possible time a
lawsuit against him and his Department saying, ``Create an
endangered species, Mr. Judge,'' and now ordering them to try
to get water out of the reclamation projects, even if they
have to dump our lakes that are there for irrigation purposes
and other things, to save the minnow.
Now, that is a very frustrating position for a state to be
in, and for a Senator, when the Endangered Species Act is a
national law. And I do not know whether we want them to go to
court and see if they really have water rights under the
Endangered Species Law.
That is a nice question. And everybody has been kind of
dancing around it, except for a couple of courts--you could
guess where--from California, California Circuit. They have
kind of ruled that they have water rights even though they
are not part of New Mexico's water ambiance at all.
The Secretary is indicating that perhaps people have been
intransigent regarding their water rights. I can tell you
they may have been. But if you were under the gun all of the
time about whether you are going to have enough water even
though you own it, you would be kind of nervous about sharing
it with anybody.
And I think that is kind of what happened, and then put on
the 800,000-population city which gets its water from an
underground aquifer that is fed by this river, and they own a
lot of water in order for their future, and you have a real
tough situation. So I may need the Senators' assistance.
But I will tell you for now, Mr. Secretary, I hope you are
not alluding, in terms of intransigence, to your and my
difficulties earlier in your Secretarial term. They are
there, and they are acknowledged, and they will kind of be
wounds for a long time on both of us.
But this is a new ball game with a new problem, and I
clearly intend to work with you if you will work with me to
see if we can find a way to get through this on a temporary
basis until we can fix it up in some permanent manner.
Thank you very much.
Senator Stevens. Senator, would you yield just for one
minute?
Senator Domenici. I am finished. Thank you.
Senator Stevens. My friend, I think that is the most
enlightened statement about the Endangered Species Act that I
have heard from any Administration official since that act
was passed, and I was here when it passed. And I am going to
get a copy of that, and I do believe that we can work on that
basis.
Mr. DOMENICI. Secretary Babbitt's testimony could open the door to
some changes in the Endangered Species Act and may permit all parties
to work together. I am submitting, as I indicated, this unedited
transcript from the hearing for the Record. The Secretary's remarks are
very significant because they acknowledge that this law, however well
intentioned, is not working as it should. I hope we can begin serious
work on improving the Endangered Species Act, certainly as it applies
to dry States where water is very much in demand and where we have an
imposition on those waters by the Endangered Species Act as it is
currently being implemented.
Just last month I indicated that people and people's needs should
come before the minnow, which is an endangered species in this
particular Rio Grande river valley. I wrote a letter to editors of
papers in our State, which appeared in multiple newspapers around New
Mexico, saying it is now time to face the devastating impacts of laws
such as the Endangered Species Act on people in a desert State like New
Mexico, particularly in the area of water.
I got some real arguments and some flak for writing that letter, but
I also got some very enlightened commentary on the problems facing an
arid State, and I am pleasantly surprised to find that Secretary
Babbitt has contributed to the debate in a very constructive way.
New Mexico, my home State, is very dry. I have found that people
within the beltway and in eastern America are unaware of the critical
need for water in the West. With the lack of snow pack and
precipitation in our State this year, we are facing a severe drought
this summer. In fact, parts of the Rio Grande River, the largest river
in our State, which runs from north to south and through the city of
Albuquerque and many other communities, which has historically gone dry
at times--this river is already drying up, even this early in the
season.
My discussion with Secretary Babbitt was extremely timely, since my
office received a call this past weekend from the Fish and Wildlife
representatives saying they were out trying to find out what was
happening to the endangered silvery minnow in the dry stretches of the
river.
You see, the traditional tension among water users is not only
exacerbated by litigation regarding the needs of the endangered silvery
minnow, but also obviously exacerbated by all conflicting water needs
when you are in a drought period.
In a lawsuit filed by the Forest Guardians and Defenders of Wildlife,
a recent 10th Circuit Court of Appeals decision ordered an immediate
critical habitat designation for the Rio Grande silvery minnow. The
practical effect of this determination is the fish may get too much of
the limited water in the river and some human users may not get any.
A Federal district judge in New Mexico allowed a few more months for
the designation, but the lawsuit only dramatizes the growing conflict
between the Federal Endangered Species Act and water for Rio Grande
users. Secretary Babbitt agreed.
I asked the Secretary whether the Interior Department had sufficient
data to determine the true water needs to sustain the silvery minnow in
the Rio Grande River in New Mexico or to make an accurate economic and
social assessment of the critical habitat designation on existing water
rights owners.
In States like New Mexico, people actually own a proportionate share
of the water in a river basin. All of those owners and their rights are
predicated upon State law, which says if you put water to a beneficial
use and continue to use it over time, you own the water rights that you
have moved off the river and used. From the time you first applied
water to beneficial use, you become a priority owner of the water as of
that time.
Secretary Babbitt replied that his Department does not have
sufficient information, but it has no choice but to act because of
Federal court orders.
Secretary Babbitt stated that the Endangered Species Act does not
work. He hoped that it could be modified to prevent court-ordered,
unscientific, premature determinations. The courts need to give the
Interior Department time to gather the data to develop a workable plan
for habitat designation.
He does not have that data necessary to make a valid, critical
habitat designation, and the courts, in trying to follow the act, are
not giving him the necessary time. He will be forced to proceed,
perhaps, with declaring a habitat. He also said he felt that it will
not be productive and will be very inflammatory.
Litigation has only inflamed passions on both sides of this debate.
In addition to the critical habitat litigation, a recent notice of
intent to sue by the Forest Guardians and others threatens to force the
release of stored water in any of four New Mexico reservoirs to
``maintain the riparian habitat necessary for the survival'' of two
endangered species.
I am concerned about water necessary for the survival of New
Mexicans, their well-being and way of life. I can only hope that the
potential needs of this silvery minnow will not drain reservoirs which
Albuquerque, Santa Fe, and many others depend on for their water.
I do believe that something is terribly wrong when people who own
rights to water have to forego usage or face penalties for ``taking''
of a species without knowing what amount of water is needed for that
endangered species.
Incidentally, Mr. President, I grew up in Albuquerque, and I lived
within about eight city blocks of this Rio Grande River. I can tell
you, as anyone who has lived in New Mexico for very long can assert,
that river ran dry plenty of times. Historical data collected before
the irrigation projects or large population increases along the river
showed it dried up consistently in certain places. I am no biologist,
but that minnow survived.
I can assure you that the river water did not run down the entire
length of the river from north to south, which is what some say we must
do now for the survival of the silvery minnow.
Mr. President, it really is upsetting when I understand that some
data available indicates that the minnow ``needs'' more water than the
Rio Grande can provide, even without consideration of the needs of
human users.
[[Page S4426]]
How can critical habitat be designated without the consideration of
all users and their needs along the river, especially if they have
property rights and own the water?
Some irrigators may have to take their toothbrushes to work because
they might be thrown in jail due to a ``take'' of fish that they have
shared the wet and dry times with for many years.
I care about including the silvery minnow. I care about making sure
we try our best to save the silvery minnow. I support the intent of the
Endangered Species Act. I actually was here to vote in favor of it, and
I did. Today, I agree with Secretary Babbitt that it is broken and does
not work. I do not think the problem is necessarily what we designed in
the legislation, but I think the court interpretations have made it
unworkable.
Mr. President, I say to my colleagues, I know the mention of
modifying the Endangered Species Act brings howls and scowls from some
quarters, but I say to you today that it can and it must be improved. I
am willing to work with my fellow Senators and the administration and
those surrounding this issue on all sides to try to find some solutions
to this problem, both nationally and for my State of New Mexico.
Mr. President, I yield the floor.
Mrs. MURRAY addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in
morning business for 15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. MURRAY. Thank you, Mr. President.
____________________