[Congressional Record Volume 149, Number 117 (Friday, August 1, 2003)]
[Senate]
[Pages S10896-S10897]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        SENATE ENERGY AND WATER APPROPRIATIONS BILL SECTION 205

  Mr. BINGAMAN. Mr. President, before we adjourn for the August recess, 
I'd like to make a brief statement related to Section 205 of the Senate 
Energy and Water appropriation bill. While we have not yet taken up 
this bill on the Senate floor, I expect that we will do so very quickly 
once we return from the August recess. I would therefore like to 
provide my views on a provision that has received significant attention 
in New Mexico.
  Section 205 is a provision that addresses endangered species issues 
in the Middle Rio Grande in New Mexico. As a threshold matter, let met 
state that I support the approach taken in Section 205 to address the 
ongoing conflict between water use and the ESA in the Middle Rio Grande 
basin. While there is a remaining issue about the interpretation of one 
aspect of the language in that section, I have worked with Senator 
Domenici to address that issue and we will follow-up on that matter 
when the bill comes to the floor.
  The conflict in the Middle Rio Grande was exacerbated by a recent 
decision by the Tenth Circuit Court of Appeals. Section 205 responds to 
that decision. I think it is an appropriate response because it 
provides a level of certainty for water users in the basin but leaves 
intact the requirements and goals of the Endangered Species Act. Let 
met explain that in more detail.
  As many of my colleagues have already heard, the decision by the 
Tenth Circuit Court of Appeals in the case of Rio Grande Silvery Minnow 
v. Keys requires the Bureau of Reclamation to reallocate water from the 
San Juan-Chama project if necessary to meet the requirements of the 
Endangered Species Act. What is remarkable about this decision--which 
needs to be redressed in my view--is that the San Juan-Chama project 
water is not native to the Rio Grande basin. It is water that 
originates in the San Juan River basin, and is brought over as a 
supplemental water supply for use in the Rio Grande basin. Use of this 
water--quite simply--has not caused the decline of the Rio Grande 
silvery

[[Page S10897]]

minnow, nor does it further jeopardize the existence of that species. 
The Court's decision, however, disregards these facts and erroneously 
directs the Bureau of Reclamation to reduce water deliveries to project 
contractors such as the cities of Albuquerque and Santa Fe, if 
necessary to meet the needs of endangered species. This result is not 
consistent with the intent of section 7(a)(2) of the ESA, and therefore 
unreasonably creates an uncertain water supply situation for a number 
of communities in New Mexico.
  This situation needs correction and the intent of section 204 is to 
do just that. It eliminates reclamation's discretion to unilaterally 
take water from San Juan-Chama contractors and reallocate it for ESA 
purposes. Section 205, however, preserves voluntary transactions by 
which Reclamation can meet the needs of the endangered fish. This is 
how business has been done since 1996, and that process is allowed to 
continue.

  Section 205 also includes a subsection that legislates the 
sufficiency of the ten-year biological opinion addressing water 
operations in the Middle Rio Grande. I understand that protecting a 
biological opinion through Federal legislation is not insignificant. 
Nonetheless, there are several reasons why I believe this approach is 
appropriate in this content. First, there has been an endless cycle of 
litigation over water operations in the Middle Rio Grande. We simply 
need some level of certainty for water users if we are to proceed to 
address the long-term requirements of the ESA. Second, it is important 
to keep in mind that compliance with the biological opinion not only 
ensures compliance with the ESA, but should serve to improve water-
supply and habitat conditions in the Middle Rio Grande. The Biological 
Opinion contains a reasonable and prudent alternative, or ``RPA'', that 
emphasizes a broad approach to conserving endangered species in the 
Middle Rio Grande. It requires minimum river flows based on the annual 
available water supply, and includes spring releases to trigger silvery 
minnow spawning activity. The RPA also contains No. 1, requirements for 
significant habitat improvements, including fish passage at the San 
Acacia diversion dam; No. 2, population enhancement activity; and No. 
3, water quality improvements in the basin.
  As a fall-back, to ensure continued survival of the silvery minnow if 
the RPA does not significantly improve its status, the legal coverage 
provided by the biological opinion lapses if minnow mortality exceeds 
the limits defined in the opinion's incidental take statement. In that 
event, the Federal agencies will need to re-consult with the U.S. Fish 
& Wildlife Service to ensure that the survival of endangered species is 
not jeopardized.
  As a final matter, although I believe that the approach in Section 
205 will maintain progress in recovering the minnow, mere compliance 
with the biological opinion is not the end of the story. I also expect 
that the Secretary of the Interior will aggressively pursue other 
actions to promote the recovery of endangered species in the Middle Rio 
Grande, including support for the efforts of the Middle Rio Grande ESA 
Collaborative Program. The Collaborative Program has been very 
successful in bringing together a diverse group of parties to work 
towards common restoration goals in the Middle Rio Grande. It will 
continue to be key to the recovery effort and I will continue to 
support funding its work.

  Before yielding the floor, I want to specifically address some 
ongoing concerns with Section 205. First, Governor Richardson in New 
Mexico has been working with all the parties to the ongoing litigation 
to try and develop a comprehensive settlement to the difficult issues 
in the Middle Rio Grande. That settlement, while not yet secured, is 
within reach. If finalized, it will likely address a broader range of 
issues than the approach in Section 205. The concern being expressed is 
whether the Section 205 could be modified to accommodate legislation 
associated with any potential settlement. I want to ensure Governor 
Richardson and the parties at the table that I will remain open to 
consider any settlement proposal that may be developed as part of that 
process. A more comprehensive solution, particularly one developed by 
all the parties together, is a preferred approach that deserves 
substantial attention and consideration.
  The Middle Rio Grande Pueblos have also expressed concern that their 
water supplies are not protected in Section 205. On this point, I think 
it is clear that the Tenth Circuit's decision does not provide any 
basis for the Secretary of the Interior to assert discretion over the 
Pueblos' available water supply and unilaterally reallocate such water 
for endangered species purposes. The Pueblos' legal status is different 
from the project contractors covered by the Tenth Circuit's decision. 
In fact, it is highly questionable whether any provision of law gives 
the Secretary discretion over the Pueblos water similar to that 
determined by the Tenth Circuit. Nonetheless, it is premature to 
conclusively address that issue at this time. I will, however, continue 
to work with the Pueblos, as well as Senator Domenici on this issue, to 
determine if a modification to this legislation should be considered.
  I hope this statement provides a clear explanation on why I am 
supporting the legislative approach set forth in Section 205.I believe 
that it is a reasonable response to the issues confronting my state--
and one that should avoid being the basis for an Endangered Species Act 
fight. I thank Senator Domenici for working with me on this provision 
and I urge my colleagues to support this language.
  I yield the floor.

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