[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.

                          ____________________