[Congressional Record (Bound Edition), Volume 149 (2003), Part 15]
[Senate]
[Pages 20179-20180]
[From the U.S. Government Publishing Office, www.gpo.gov]




                FY 2004 ENERGY AND WATER APPROPRIATIONS


                        silvery minnow provision

  Mr. BINGAMAN. Mr. President, I want to begin by commending my

[[Page 20180]]

friend and colleague from New Mexico and the Chairman of both the 
Energy and Natural Resources Committee, and the Energy and Water 
Appropriations Subcommittee, for addressing a difficult situation on 
the Rio Grande River.
  The provision at issue is Section 205 of the Energy and Water 
Appropriations bill and I would like to take this opportunity to engage 
Senator Domenici on that legislative language as part of the Senate's 
consideration of the bill.
  We worked on Section 205 together, and it concerns water use in the 
Middle Rio Grande and compliance with the Endangered Species Act (ESA). 
More specifically, Section 205 addresses the June 12, 2003 decision of 
the Tenth Circuit Court of Appeals in the case of Rio Grande Silvery 
Minnow v. Keys, and does the following:
  Recognizing that importing San Juan-Chama project water from the San 
Juan River basin to the Rio Grande basin does not jeopardize endangered 
species in the Middle Rio Grande, Section 205(a) clarifies that the 
Bureau of Reclamation may not use discretion, if any, to unilaterally 
reduce or reallocate water to be delivered under San Juan-Chama project 
contracts for endangered species purposes in the Rio Grande River 
Basin.
  Section 205(b) also expressly recognizes that compliance with the 
March 17, 2003 biological opinion concerning water operations in the 
Middle Rio Grande, as well as activities being conducted pursuant to 
P.L. 106-377, P.L. 107-66, and P.L. 108-7, constitute compliance with 
all ESA requirements as related to those actions, both federal and non-
federal, that are incorporated as the proposed action in the biological 
opinion. Notwithstanding Section 205, the Secretary is to continue 
pursuing recovery of listed species in the Middle Rio Grande, including 
support for the Middle Rio Grande ESA collaborative program.
  I believe we are in agreement on the effect of Section 205. Moreover, 
I think the legislation is an appropriate response to the Tenth 
Circuit's decision and strikes a proper balance by providing certainty 
for all water users in the Middle Rio Grande basin while still 
maintaining the policy that all water users have a shared interest and 
responsibility to comply with the requirements of the ESA. Given the 
benefits of this approach I would ask my colleague, as Chairman of 
Energy and Water Appropriations Subcommittee, to maintain this approach 
in the conference with the House of Representatives and to include this 
interpretive language as part of the conference report.
  Mr. DOMENICI. I appreciate that my colleague and fellow New Mexican 
worked with me to help alleviate the current situation with the silvery 
minnow. I concur with his understanding of the language which is 
designed to narrowly address the silvery minnow situation in the Rio 
Grande. It is intended to prohibit the use of San Juan-Chama water in 
the Rio Grande for endangered species purposes and to implement the 
March 17, 2003 Biological Opinion. I also concur with his view of the 
benefits of Section 205 in general, and will strongly advocate for its 
retention in conference, as well as inclusion of this interpretive 
language in the conference report.
  Mr. BINGAMAN. I thank the distinguished Chairman for his 
consideration and explanation of this important matter. I believe that 
this language offers hope for the minnow and protection for the people 
of New Mexico.

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