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89-218 PS 2003

THE SILVERY MINNOW’S 

IMPACT ON NEW MEXICO

OVERSIGHT FIELD HEARING

BEFORE THE

COMMITTEE ON RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

Saturday, September 6, 2003, in Belen, New Mexico

Serial No. 108-52

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

Committee address: http://resourcescommittee.house.gov 

(II)

COMMITTEE ON RESOURCES 

RICHARD W. POMBO, California, Chairman 

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska 

W.J. ‘‘Billy’’ Tauzin, Louisiana 

Jim Saxton, New Jersey 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Ken Calvert, California 

Scott McInnis, Colorado 

Barbara Cubin, Wyoming 

George Radanovich, California 

Walter B. Jones, Jr., North Carolina 

Chris Cannon, Utah 

John E. Peterson, Pennsylvania 

Jim Gibbons, Nevada, 

Vice Chairman 

Mark E. Souder, Indiana 

Greg Walden, Oregon 

Thomas G. Tancredo, Colorado 

J.D. Hayworth, Arizona 

Tom Osborne, Nebraska 

Jeff Flake, Arizona 

Dennis R. Rehberg, Montana 

Rick Renzi, Arizona 

Tom Cole, Oklahoma 

Stevan Pearce, New Mexico 

Rob Bishop, Utah 

Devin Nunes, California 

Randy Neugebauer, Texas 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Frank Pallone, Jr., New Jersey 

Calvin M. Dooley, California 

Donna M. Christensen, Virgin Islands 

Ron Kind, Wisconsin 

Jay Inslee, Washington 

Grace F. Napolitano, California 

Tom Udall, New Mexico 

Mark Udall, Colorado 

Anı ́bal Acevedo-Vila ́, Puerto Rico 

Brad Carson, Oklahoma 

Rau ́l M. Grijalva, Arizona 

Dennis A. Cardoza, California 

Madeleine Z. Bordallo, Guam 

George Miller, California 

Edward J. Markey, Massachusetts 

Rube ́n Hinojosa, Texas 

Ciro D. Rodriguez, Texas 

Joe Baca, California 

Betty McCollum, Minnesota

Steven J. Ding, Chief of Staff 

Lisa Pittman, Chief Counsel 

James H. Zoia, Democrat Staff Director 

Jeffrey P. Petrich, Democrat Chief Counsel 

(III)

C O N T E N T S 

Page

Hearing held on Saturday, September 6, 2003 ..................................................... 1

Statement of Members: 

Baca, Hon. Joe, a Representative in Congress from the State of 

California ....................................................................................................... 6

Prepared statement of ............................................................................... 7

Calvert, Hon. Ken, a Representative in Congress from the State of 

California ....................................................................................................... 10

Prepared statement of ............................................................................... 11

Pearce, Hon. Steven, a Representative in Congress from the State of 

New Mexico ................................................................................................... 12

Prepared statement of ............................................................................... 13

Pombo, Hon. Richard W., a Representative in Congress from the State 

of California ................................................................................................... 3

Prepared statement of ............................................................................... 5

Wilson, Hon. Heather, a Representative in Congress from the State of 

New Mexico ................................................................................................... 14

Statement of Witnesses: 

Belin, Alletta, New Mexico Counsel, Western Resource Advocates ............. 41

Prepared statement of ............................................................................... 44

Statement submitted for the record ......................................................... 54

Response to questions submitted for the record ..................................... 55

D’Antonio, John R., Jr., P.E., New Mexico State Engineer, State of 

New Mexico ................................................................................................... 37

Prepared statement of ............................................................................... 39

Hillson, Eileen Grevey, AguaVida Resources, Albuquerque, New Mexico .. 23

Prepared statement of ............................................................................... 26

Ortiz, Hon. Anthony, Governor, Pueblo of San Felipe .................................. 31

Prepared statement of ............................................................................... 32

Response to questions submitted for the record ..................................... 91

Sanchez, Jessica, Family Farmer and Rancher, Belen, New Mexico ........... 17

Prepared statement of ............................................................................... 19

Wesche, Dr. Thomas A., Principal Scientist, HabiTech, Inc., and Professor 

Emeritus, University of Wyoming, Laramie, Wyoming ............................. 58

Prepared statement of ............................................................................... 60

Response to questions submitted for the record ..................................... 63

Additional materials supplied: 

Central Arizona Water Conservation District, Statement submitted for 

the record ....................................................................................................... 79

Chavez, Hon. Martin J., Mayor, City of Albuquerque, New Mexico, 

Statement submitted for the record ............................................................ 80

Domenici, Hon. Pete V., a United States Senator from the State of 

New Mexico, Statement submitted for the record ..................................... 14

Godfrey, Liz, Great Plains Organizer, Endangered Species Coalition, 

Blanco, New Mexico, Letter submitted for the record ............................... 83

Harris, Steve, Executive Director, Rio Grande Restoration, Statement 

submitted for the record ............................................................................... 86

Madrid, Hon. Patricia A., Attorney General, State of New Mexico, Letter 

submitted for the record ............................................................................... 88

National Endangered Species Act Reform Coalition, Washington, DC, 

Statement submitted for the record ............................................................ 89

Rio Grande Water Rights Authority, Statement submitted for the record . 93

Shah, Subhas, Chief Engineer, Middle Rio Grande Conservancy District, 

Albuquerque, New Mexico, Statement submitted for the record .............. 95

Page

IV

Additional materials supplied—Continued

Turner, Dr. William M., Trustee, Lion’s Gate Water, Statement submitted 

for the record ................................................................................................. 98

Udall, Hon. Tom, a Representative in Congress from the State of 

New Mexico, Statement submitted for the record ..................................... 8

(1)

OVERSIGHT FIELD HEARING ON THE 

SILVERY MINNOW’S IMPACT ON NEW MEXICO 

Saturday, September 6, 2003

U.S. House of Representatives 

Committee on Resources 

Belen, New Mexico 

The Committee met, pursuant to call, at 9:00 a.m., in Belen High 

School, 1619 West DelGado, Belen, New Mexico, Hon. Richard W. 

Pombo [Chairman of the Committee] presiding. 

Members Present: Representatives Pombo, Calvert, Pearce and 

Baca. 

Also Present: Representative Wilson of New Mexico. 

The CHAIRMAN. If I could have everybody take their seats, 

please. 

The Oversight Field Hearing by the Committee on Resources will 

come to order. 

The Committee is meeting today to hear testimony on the Silvery 

Minnow’s Impact on New Mexico. 

Before we begin I ask unanimous consent that Congresswoman 

Heather Wilson be permitted to sit on the dais and participate in 

the hearing, without objection. 

I would now like to recognize Congressman Steve Pearce for 

some special announcements and introductions. Congressman 

Pearce. 

Mr. PEARCE. Thank you, Mr. Chairman. Thank you for coming 

to this field hearing. My district is Belen. It has been nothing but 

gracious as we made the preparations to have this very important 

discussion. Today, before we get started, we are pleased to have the 

Belen High School ROTC Unit post the colors. Please rise and show 

respect as the unit presents our flag. 

[Whereupon the colors were posted.] 

Mr. PEARCE. Now I would like to present Luperto Garcia, Disabled American Veterans Chapter 29 of Belen; Billie F. Jones, Sr., 

State Commander, U.S. Navy Combat Corpsman. We also have 

Commander Dwight Bierner, U.S. Army, 2nd Infantry, Korea; Vice 

Commander Bernadette See, U.S. Women’s Army Corps, Vietnam 

Era; Veteran’s Service Officer, Dale Howard, U.S. Navy Seabee, 

Korean War; Ruperto Baldonado, U.S. Army, Korean War; Chad 

Good, U.S. Navy, Gulf War; Carl Schauer, Treasurer, U.S. Army, 

World War II and Korean War. 

And I just want to recognize them for being here and being representative of those who have fought to keep our freedoms, those 

2

who have fought to keep our liberties, the sacrifices that have been 

made throughout the generations of America. And we just recognize you and thank you. 

Mrs. Corby Lynne Chavez will lead us in ‘‘God Bless America.’’ 

[Whereupon ‘‘God Bless America’’ was sung.] 

Mr. PEARCE. Vianca Corral from Belen High School, a sophomore, will give a Spanish invocation, that will be followed by Jim 

Wilburn from Belen Christian Church leading us in the English invocation. 

Ms. CORRAL. Buenos dias tengan todos ustedes. Estamos 

reunidos hoy en este dia, dandole gracias a nuestro padre Dios por 

permitirnos estar aqui. Y de ese modo juntos podamos tomar 

decisiones que ayude a mejorar nuestro pais, nuestras 

comunidades, y nuestros Pueblos, y haci hacer un mundo mejor. 

Por eso tengamos fe en nosotros mismos que llegaremos a tener un 

futuro mejor, lleno de oportunidades e igualdades. 

Ahora por favor me gustaria mucho que me acompanaran por un 

momento y juntos acercarnos a nuestro senor Dios. 

Padre nuestro que estas en el cielo, santificado sea tu nombre, 

venganos tu reino, agase senor tu voluntad aqui en la tierra como 

en el cielo. Danos hoy nuestro pan de cada dia, y perdona nuestras 

ofensas como nosotros tambien perdonamos a los que nos ofenden. 

No nos dejes caer en tentacion, mas libranos de todo mal. Amen. 

Rev. WILBURN. Let us pray. Almighty God, we recognize that you 

do have dominion over nature. We read in Genesis that you 

brought so much rain to this globe that it turned to a global flood. 

We read in Second Kings that you brought judgment to Israel with 

several years of drought. But by your words to Christ in the Gospels you said peace to a violent storm and it was still. 

Lord, we lift this day to you. First of all we ask that you will 

bring rain and more water to replenish this drought-stricken state. 

We also lift this day to you, we will pray for those, the farmers that 

are in dire need for the necessary water for their crops, for the cities that are in dire need for the necessary water for the drinking 

of water and other necessary needs of the cities. With that, on the 

other hand we also lift up those who are concerned with the welfare of the wildlife in our streams and rivers of our state. We lift 

this day to you. We ask that you will give us guidance, direction, 

wisdom, and bring a resolution to this matter, as you alone will be 

glorified. In your precious name, in Jesus’ name. Amen. 

Mr. PEARCE. If you will be seated. We will recognize a couple of 

dignitaries we have in the audience. We have state Senator Michael Sanchez, who was my first interim Committee chairman on—

Mike is standing back at the back and we recognize him, my first 

interim Committee chairman on water and utilities. 

We have also State Representative Don Tripp, both of them represent—Don is here in the middle—both of them represent this 

area. We have Arthur Rodarte over here, who I spent a lot of time 

in the State Senate and is a good friend from up in the northern 

part. 

Manuel Lujan is here, former Secretary of the Interior, also 

former U.S. Congressman. 

Mr. Chairman, again, thank you for being here and thank you 

for bringing this important discussion to New Mexico. 

3

The CHAIRMAN. Thank you. I’d like to, if I may, before we begin 

the opening statements ask former Secretary of Interior and a 

former colleague of ours, Mr. Lujan, if he would mind coming up 

and saying a few words. 

Mr. LUJAN. Thank you, Mr. Chairman. Thank you for coming to 

New Mexico, and Congressman Calvert, and Congressman Baca. 

Congressman Baca is one of our own from here, we just loaned him 

to California for the time being, but we hope that you come back 

to us and to our New Mexico delegation. 

Mr. Chairman, thank you very much for agreeing to have this 

meeting here. It’s very vital to New Mexico. You know, I was in the 

Congress at the time that the Endangered Species Act was passed, 

but to tell you the truth, I really thought it was, you know, to save 

elephants and tigers, and kind of things like that. And, of course, 

it turns out that it’s not quite that way, it was probably one of the 

more contentious things that I had to deal with when I was in the 

cabinet with the spotted owl and all of those different things. 

I really do think that we need some balance. The Endangered 

Species Act ought to show that there is a balance between, of 

course, the endangered species and human beings. The judge 

issued a ruling here that, you know, interpreting the Endangered 

Species Act that had to take water from human beings and give it 

to the river for the endangered species, and so maybe, I think that 

perhaps what is in order and what advice, if I might take that 

privilege, it would be that there needs to be a balance to take into 

consideration, of course, the endangered species, you don’t want to 

completely ignore that, but on the other hand you got to take economic interests and, of course, the interests of the human beings. 

So thank you very much for holding the hearing. You’ll find that 

it’s a very contentious issue here in New Mexico because the livelihood of people, of course, depend on it. Thank you very much, Mr. 

Chairman. 

The CHAIRMAN. I now recognize myself for an opening statement. 

STATEMENT OF THE HON. RICHARD POMBO, CHAIRMAN, 

COMMITTEE ON RESOURCES, AND A U.S. REPRESENTATIVE 

FROM THE STATE OF CALIFORNIA 

The CHAIRMAN. I want to thank you for the opportunity to bring 

the House of Representatives’ Committee on Resources to the State 

of New Mexico. I look forward to listening and gaining greater insight from the witnesses today and from my congressional colleagues on how the Endangered Species Act is being implemented 

by Federal agencies and interpreted by the courts specific to the 

Middle Rio Grande River. I have great confidence that the witnesses who are here will be more than successful in presenting 

New Mexico’s views on this issue. 

For nearly a decade Congress has worked to bring amendments 

to the Endangered Species Act to conserve both species and the 

rights and needs of Americans. During this same time designation 

of critical habitat under the Endangered Species Act has involved 

into a source of controversy. Due to the vigorous mandates required 

under the current act, specifically critical habitat designations, 

many think the program is unworkable. 

4

Judicial orders and court-forced settlement agreements have 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 the species and the greatest need of conservation. 

The Administration acknowledges the court orders and mandates 

often result in leaving 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, in the current administration supported by the previous Clinton Administration, it is recognized that the critical habitat designations provide the majority of 

listed species and proposed to be listed species, little, if any, additional protection. 

Since the last authorization of the Endangered Species Act expired in 1993, there has been great optimism and hope that we 

would be able to amend the Act and implement a process based on 

sound science and common sense approaches to species conservation and recovery, goals similar to those that the 1973 Congress envisioned when they originally adopted the law. 

Congress intended for this law to be used to prevent the extension of species and to increase the number of those in need before 

triggering fed regulation. It 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. They also never envisioned the widespread 

injunctions, economic meltdowns and social dislocations that many 

of you are now facing here in New Mexico as a result of the silvery 

minnow legal actions. 

I realize amendment and reauthorization of the Endangered Species Act has dragged on with little success 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, they would have to agree what is best 

for the species. 

It is this selfish attitude that has resulted in the uncertainty 

New Mexico is facing with the silvery minnow. However, New 

Mexico is not alone in this uncertainty. It is happening throughout 

the U.S. because of the flaws in the Endangered Species Act. Recognizing that this is not just a regional problem, the best and only 

way to fix the Act is to amend the law for all Americans, with 

equal application across the country. Such an approach to amending the Endangered Species Act also maintains the broad stakeholder support critical to reaching a majority consensus in Congress. 

The House Committee on Resources is here today as a result of 

the request of the New Mexico delegation members, Mr. Pearce and 

Ms. Wilson. We are before you today to hear from you and receive 

your ideas on what we, as your elective representatives in Washington, can do to improve the implementation of the Endangered 

Species Act. 

Again, I thank you for having us. And before I recognize the next 

member I would just like to conclude by saying that this is an 

5

official hearing of the Congress of the United States and we require 

the audience and the members to, to have a certain decorum during the hearing. That does involve no reaction or outbursts from 

the audience. We do have a strict time limit that we place all the 

witnesses under. So we, anyone that has signs or tries to disrupt 

the hearing in any way will be asked to stop in order to maintain 

the decorum that is necessary in the House of Representatives. 

[The prepared statement of Chairman Pombo follows:]

Statement of The Honorable Richard W. Pombo, Chairman,

Committee on Resources 

Good Morning. Thank you for the opportunity to bring the House of Representatives Committee on Resources to the State of New Mexico. I look forward to listening and gaining greater insight from the witnesses today, and from my Congressional colleagues, on how the Endangered Species Act is being implemented by federal agencies and interpreted by the Courts specific to the Middle Rio Grande Region. 

I have great confidence that the witnesses who are here will be more than successful in presenting New Mexico’s views on this issue.

*** For nearly a decade, Congress has worked to bring amendments to the Endangered Species Act that conserves both species and the rights and needs of Americans. 

During this same time, designation of critical habitat under the Endangered Species Act has evolved into a source of controversy. Due to the rigorous mandates required under the current Act, specifically critical habitat designations, many think 

the program is unworkable. Judicial orders and court-forced settlement agreements 

have 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. 

Since the last authorization of the Endangered Species Act expired in 1993 there 

has been great optimism and hope that we would be able to amend the Act and implement a process based on sound science and common sense approaches to species 

conservation and recovery. Goals similar to those that the 1973 Congress envisioned 

when they originally adopted this law. 

Congress intended for this law to be used to prevent the extinction of species and 

to increase the number of those in need before triggering federal regulation (restrictions). It 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. 

They also never envisioned the widespread injunctions, economic meltdowns and 

social dislocations that many of you are now facing here in New Mexico as result 

of the silvery minnow legal actions.

*** I realize amendment and reauthorization of the Endangered Species Act has 

dragged on with little success 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. 

It is this selfish attitude that has resulted in the uncertainty New Mexico is facing 

with the silvery minnow. 

However, New Mexico is not alone in this ‘‘uncertainty.’’ It is happening throughout the U.S. because of the flaws in the Endangered Species Act. Recognizing that 

this is not just a ‘‘regional’’ problem, the best and only way to fix the Act is to 

amend the law for all Americans with equal application across the country. Such 

an approach to amending the ESA also maintains the broad stakeholder support 

critical to reaching a majority consensus in the Congress. 

6

The House Committee on Resources is here today as a result of the requests of 

its New Mexico Delegation Members, Mr. Pearce and Ms. Wilson. 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. 

Baca. 

The CHAIRMAN. I’d like at this time to recognize my friend and 

colleague from California, Mr. Baca. 

STATEMENT OF THE HON. JOE BACA, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. BACA. Thank you very much, Mr. Chairman. Bien venidos a 

todos. It’s an honor to be here this morning in my home town, 

where I was born not too many years ago. And it wasn’t too many 

years ago, although I may look a little bit older, but it wasn’t too 

many years ago. But it’s nice also to see many of my relatives that 

are here with me, and I see Rupert out here, and Flora that’s out 

here. Mela, one of the custodians that’s out here, and I see, there’s 

nothing wrong with being a custodian. I was a custodian before, 

and look at that, I’m now a United States congressman. So a lot 

of things can happen to you as well. But it’s nice to be here and 

visit some of my relatives and to be back in the State of New 

Mexico. 

And, of course, I feel I have the responsibility of being a guardian 

angel to Belen, otherwise my family members who live here may 

not claim me. So I have that responsibility, and that’s why Heather 

Wilson and Steve Pearce, a lot of times I come here and try to do 

as much as possible for this area, because this is where a lot of my 

roots are, and this is where I grew up in the summers. My parents 

always wanted to make sure that I knew where I was born and 

where I came from. And it’s nice to be here. 

Never dreamed that I would be coming back here and having a 

hearing here. I believe that this is the first time that a congressional hearing has ever been held in Belen, so it’s historical in 

terms of what’s happening here today dealing with this particular 

problem. And I’m glad to participate. 

I will curtail some of my comments, as the Chair covered a lot 

of the aspects of it, but I look forward to participating in what I 

hope will be a productive hearing to help solve some of the dilemmas that have faced this area for a long time. And I say for a long 

time because during the summers I used to come out here and bale 

hay, so I know what it’s like in reference to the farmers and the 

hay and the drought, and needing the hay as well. Let me tell you, 

after baling hay I said that’s not the kind of job that I want, I want 

to do something else. It’s hard work, but it’s good work too. 

The conflict, protection of the endangered species and the needs 

of the community, are nothing new to myself or to Ken Calvert 

from California. In our districts in California we have the endangered Delhi sands flower-loving fly, recently named the Giant Delhi 

sands flower-loving fly. This is an endangered species, you know, 

a fly that you see flying around that we’re now trying to protect. 

And I think I was on NBC at one time and I happened to swat a 

fly, and I don’t know if it was endangered species or not. But—and 

7

then I was afraid that a lot of the cattle and horses, and others, 

if they swatted the fly, what would happen to them too in terms 

of the fly. But these are the kind of things that we’ve got to deal 

with as well. 

In one of the fastest-growing regions in the country where 76 

percent of the population is minority, we have had to stall commercial development to preserve this fly. Now they’re talking about the 

possibility of moving 5.8 million pounds, or 120 truckloads of rare 

sand, in order to turn it into a habitat. 

To me, this goes beyond what the ESA was created to do. And 

I think that’s why we’re at this hearing in terms of ESA and the 

establishments of the endangered species. We also have to protect 

the endangered kangaroo rat for Fish and Wildlife that has interfered with the businesses, military bases, water rights, water companies. 

I understand that we have a duty to protect the endangered animals and insects from extinction, but, as public servants, we also 

have a duty to protect the welfare. And I state, we have the responsibility to protect the welfare of the people who make up our community. Their needs should come first and foremost. And when you 

talk about water and supplies in the states like New Mexico that 

already face drought, limited water supplies, this couldn’t be 

greater. 

I am confident, through the leadership represented here today 

and the guidance of this Committee, that we can meet in the middle to create a balance. As Lujan indicated earlier, the plan that 

benefits the state farmers, the Pueblo Indians, and other citizens, 

and increases the state water supply, and the numbers of the silvery minnow. 

I look forward to a constructive dialog today as we listen to the 

witnesses and their valuable points of view. Hopefully, it will be a 

fair and objective hearing in listening to everybody’s point of views 

in reference to the problem and, hopefully, we can solve the problem. Because it is a problem to the farmers, it is a problem in 

terms of drought in this area. We’ve not had any water. As I talked 

to relatives in the area, and as we look at water and the needs between the Pueblo Indians as well, and the Indians that are affected 

and the water that flows in this area, we need to find a happy medium for our farmers. 

And I know that a lot of the flow that comes through when you’re 

harvesting. You’ve got a certain time you have to harvest your crop 

and if you’re not releasing a lot of that water to a lot of them, then 

you can’t harvest alfalfa or other crops. So I understand that. 

So with that, I want to thank the Chairman for having this hearing here in my home town of Belen, where I was born. 

[The prepared statement of Mr. Baca follows:]

Statement of The Honorable Joe Baca, a Representative in Congress from 

the State of California 

Thank you, Mr. Chairman. 

Buenos Dias. It is an honor to be here this morning, in my hometown of Belen, 

New Mexico. Even though I represent the 43rd District of California, I was born 

in this town not too many years ago. And I feel that I have the responsibility of 

being a guardian angel to Belen, otherwise my family members who live here may 

not claim me. I have been looking forward to participating in what I hope will be 

8

a productive hearing today to help solve a dilemma that has faced this area for a 

long time. 

The conflict between the protection of endangered species and the needs of communities is nothing new. In my district in California, we have the endangered Delhi 

Sands flower-loving fly (recently named the Giant Delhi Sands flower-loving fly). In 

one of the fastest growing regions in the country, where 76% of the population are 

minority, we have had to stall commercial development to preserve ‘‘the fly.’’ Now, 

they’re talking about possibly importing 5.8 million pounds, or 120 truckloads, of 

rare sand to turn it into fly habitat. To me, this goes way beyond what the ESA 

was created to do. 

Also, protection of the endangered Kangaroo Rat through the Fish & Wildlife 

Service has interfered with the business of a military base, and the water rights 

of water companies. 

I understand that we have a duty to protect endangered animals and insects from 

extinction; but as public servants, we also have a duty to protect the welfare of the 

people who make up our community. Their needs should come first and foremost. 

And when you talk about water supplies in a State like New Mexico that already 

faces drought and limited water supply, these needs couldn’t be greater. 

I am confident that through the leadership represented here today, and the guidance of this Committee, we can meet in the middle to create a balanced plan that 

benefits the state’s farmers, Pueblo Indians, and other citizens; and increases the 

state’s water supply and the number of silvery minnow. I look forward to a constructive dialogue today as we listen to the witnesses and their valuable points of view. 

Thank you. 

Mr. BACA. And for the record, I’d also like to submit a statement 

by Congressman Udall, that could not be here today, but asked 

that if I would submit for the record his statement. He had a conflict in terms of scheduling and had to be somewhere else, otherwise Congressman Tom Udall would have been here. So, for the 

record, I’d like to submit his statement. Thank you very much, Mr. 

Chairman. 

The CHAIRMAN. Without objection, it will be included in the 

record. 

[The prepared statement of Mr. Tom Udall follows:]

Statement submitted for the record of The Honorable Tom Udall, a 

Representative in Congress from the State of New Mexico 

For several weeks now, there has been an ongoing collaborative process of negotiations occurring here in New Mexico regarding the current water situation in the 

Rio Grande Basin. Several of the same groups that are named or interested parties 

in the recent Tenth Circuit opinion have been actively engaged in these negotiations. We are at a delicate point in these negotiations and we should all hope a local 

settlement can be achieved. 

Future water decisions for New Mexico require that collaboration continue at the 

local level so that we can address and resolve the core issues that affect the Rio 

Grande. Sustainability of the river and our water supply depends upon local involvement and solutions, rather than intrusive intervention by the federal government. 

As we all know, the Tenth Circuit Court of Appeals upheld the Federal District 

Court’s opinion determining that the Bureau of Reclamation ‘‘has the discretion to 

reduce deliveries of water’’ to comply with the Endangered Species Act.’’ This affirmation rekindled the passionate debate about how we use our water resources, 

about the sustainability of our current water practices, and whether we are using 

our water wisely. 

This is a very difficult situation for everyone involved. Some have painted the situation as a crisis, as a people versus fish issue. Others state that this ‘‘crisis’’ should 

be taken as an indication that it is time to recognize the bottom line of the matter: 

water is a scarce commodity in New Mexico and should be treated accordingly. 

Our water resources are over-allocated, and population growth is stretching these 

precious supplies to the limits. This situation is compounded by a water infrastructure that is inefficient, outdated, and insufficient to meet our current needs. We can 

no longer overlook the importance of water use and conservation plans. 

In an effort to find a common-sense approach to sustainable water management 

in New Mexico and the west, I engaged in extensive discussions with the major 

9

stakeholders in the San Juan/Chama water dispute, and shared my concerns directly with United States Department of Interior Secretary Gale Norton, the person 

ultimately responsible for enforcing the 10th Circuit ruling. 

As a result of these conversations, I introduced The Middle Rio Grande Emergency Water Supply Stabilization Act of 2003, a bill the will address our outmoded 

water principles and practices and help ensure sustainable water management and 

conservation in New Mexico. 

My bill addresses the core, crucial issues that underlie New Mexico’s water problems. First, my bill authorizes the Secretary of the Interior to contribute to a longterm solution for the Middle Rio Grande River in the State of New Mexico by preventing, reducing or eliminating wasteful depletion of waters. This would entail the 

establishment of a water supply stabilization program at the local level. Under this 

program, the Secretary would provide financial and technical assistance to promote 

and encourage the adoption and implementation of water conservation measures 

within the Rio Grande Basin in New Mexico. 

To accomplish this, the Secretary would enter into cost sharing and other agreements with the State and other entities including organizations, municipalities, Indian Tribes and Pueblos, and individuals, who use agricultural or municipal and industrial water from the Rio Grande River and its tributaries in New Mexico, including water supplied directly or indirectly from the Middle Rio Grande Project or the 

San Juan-Chama Project. These collaborative agreements will result in localized decisions regarding sustainable water management along the Rio Grande. 

Second, the bill encourages the implementation of water conservation measures 

that will improve water quantity and water quality conditions needed to support a 

sustainable, living river environment within the Middle Rio Grande Basin, and will 

result in conservation, recreation, and other public benefits. 

Third, the bill sets a goal to achieve, within three years of the date of enactment 

of this legislation, quantifiable improvements in irrigation efficiencies through the 

incorporation of measures such as lining canals and ditches, and the use of low-flow 

or drip irrigation systems and other modern hydrological technologies. 

Fourth, the bill directs the Secretary to cooperate with the State of New Mexico, 

water use organizations, and affected landowners to develop and implement a comprehensive program to identify, remove, and control salt cedar vegetation in the 

flood plain of the Rio Grande River and its tributaries, and to replant and re-establish native vegetation if appropriate. 

Fifth, the bill authorizes grants for basic research on technological solutions for 

accessing new sources of water including, but not limited to, desalinization, and the 

purification of brackish and other types of unpalatable water. Furthermore, the bill 

authorizes grants for basic research to increase water efficiency. For example, Los 

Alamos National Labs, located in my district, is working to improve technology so 

that less water will be required in manufacturing computer microchips. And, the bill 

authorizes funds to conduct studies to quantify the water needs, requirements and 

rights of tribes and pueblos in the Middle Rio Grande Basin. 

Finally, the bill confirms the original intentions of Congress as set forth in the 

Colorado River Storage Project Act of 1956, and the San Juan-Chama Project Act 

1962. These Acts set forth the principle purposes underlying the furnishing of federal water supplies in New Mexico, including water for municipal, domestic, and industrial uses, and for the conservation of, and I quote from the original authorizing 

legislation, ‘‘the scenery, the natural, historic, and archeologic objects, and the wildlife’’ on lands affected by the project, and ‘‘to mitigate losses of, and improve conditions for, the propagation of fish and wildlife.’’

We are in the midst of a very serious drought, and in New Mexico and across the 

west. Our water resources are over-allocated, and an exploding growth in population 

is stretching these resources to the limits. This situation is compounded by a water 

infrastructure that is inefficient, outdated, and insufficient to meet our current 

needs. 

My bill deals with these realities and many other crucial issues. It sets up incentives to conserve our water resources and develop collaborative solutions at the local 

level. It restores and protects the Rio Grande River and the surrounding Bosque, 

and encourages technological solutions for new sources of water and methods to harness such technology to increase water efficiency. 

Considering the above, if we do not focus collaboratively and make every effort 

possible to conserve our water, I believe that New Mexico, and similarly situated 

western states, will continue to confront similar, if not worse, water scarcity problems indefinitely. We need greater and more conscientious efforts on the part of 

water users to conserve this precious commodity. And, these users must become 

more accountable for water waste. My bill provides the incentives to conserve our 

10

water resources to ensure that all New Mexicans will have water to use in the future. 

We need to act now to ensure sustainable water management and conservation 

in New Mexico. We need greater and more conscientious efforts on the part of water 

users to conserve this commodity. The health and sustainability of the Rio Grande 

depends on the collaborative efforts of us all, concentrated not at the federal level 

but here at home, where the effects of our water dilemma is felt the greatest. 

The CHAIRMAN. I’d like at this time to recognize Congressman 

Ken Calvert, who is the Chairman of the Water and Power Subcommittee. 

STATEMENT OF THE HON. KEN CALVERT, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. CALVERT. Thank you, Mr. Chairman. And I certainly commend you for holding this hearing and appreciate your long-standing interest in improving the Endangered Species Act and protecting water rights. I’m pleased to be here in New Mexico with my 

friends and colleagues. It’s certainly good to see Manuel Lujan. 

He’s not only a great son of New Mexico but a great patriot, a great 

American, and I’m sure you’re very proud to call him your own. 

And I, you know, these hearings are about learning new things, 

and I learned something on the way over here, that this is Joe 

Baca’s hometown. So that’s great. Joe’s district is right next to 

mine in southern California. 

As the House Water and Power Subcommittee Chairman, I know 

firsthand about the role water plays in safeguarding our environment, cultures and tradition, and certainly our food supply and our 

economy. However, we’ve often found in the west, and elsewhere in 

the nation, that in many cases water supplies can’t meet multipurpose demands, particularly in times of drought. For this reason, 

many communities, like Albuquerque and others, have sought blueprints of certainty in meeting water needs. They assume their citizens will get the water they paid for when they created those longrange plans. 

Well, no good deed goes unpunished. They were proven wrong 

this summer when the Tenth Circuit Court of Appeals ruled that 

non-native water, long-standing Rio Grande water contracts, could 

be used for environmental regulations that were never before on 

the table. A shock wave of uncertainty hit the western water world, 

not just in New Mexico, but throughout the western United States. 

This ruling primarily means that the Endangered Species Act, 

for the first time, takes precedence over urban water supplies that 

never would have been used for the silvery minnow uses in the 

first place. The ruling essentially ignores the nation’s fundamental 

premise of private property freedoms by exerting Federal control 

over locally controlled watery sources. 

There’s little wonder that this precedent makes many uneasy in 

my region of southern California, who are left wondering what else 

is going to threaten an already uncertain water supply situation on 

the Colorado river. They have witnessed, in the Endangered Species Act, impacts on Klamath farmers, then on Albuquerque and 

Santa Fe urban water users. 

And my region, as Joe Baca stated, currently has endangered 

Steven kangaroo rats, Delhi sand flowers loving flies, and many 

11

wonder what the next target will be. And be certain of this, there 

will be another target. 

The court’s opinion also speaks volumes about the state of the 

Endangered Species Act. Nearly everyone agrees with the need for 

endangered species protection, but it seems that more than money 

is being spent on litigation and waging battles in the courts and 

on protecting species. The only good thing I can think of in this regard about the current Tenth Circuit determination, that at least 

it makes our Ninth Circuit in California look a little bit better. 

No one ever intended this law to become the full employment act 

for lawyers and environmental extremists, but I’m concerned that 

it’s going to go in that direction. It also says that long years of collaboration could be hijacked by someone on the fringe not happy 

with the initial outcome. 

It’s time for a fresh look at whether the Endangered Species Act 

can be carried out more effectively in a cooperative and scientific 

manner. This hearing is a good start in that direction. I certainly 

look forward to hearing from today’s witnesses and working with 

my colleagues to resolve the issue before us today. Thank you very 

much. 

[The prepared statement of Mr. Calvert follows:]

Statement of The Honorable Ken Calvert, a Representative in Congress 

from the State of California 

I commend you, Mr. Chairman, for holding this hearing and appreciate your interest in improving the Endangered Species Act and protecting water rights. I’m 

pleased to be here in New Mexico with my distinguished friends and colleagues. 

As the House Water and Power Subcommittee Chairman, I know firsthand about 

the role water plays in safeguarding our environment, our cultures and tradition, 

our food supply and our economy. However, we have often found in the west—and 

elsewhere in the nation—that in many cases water supplies can’t meet growing 

multi-purpose demands, particularly in times of drought. 

For this reason, many communities—like Albuquerque and others—have sought 

blueprints of certainty in meeting water needs. They assumed that their citizens 

would get the water they paid for when they created these long-range plans. 

They were proven wrong this summer. When the 10th Circuit Court of Appeals 

ruled that non-native water and longstanding Rio Grande water contracts could be 

used for environmental regulations that were never before on the table, a shockwave 

of uncertainty hit the western water world. The ruling primarily means that the Endangered Species Act—for the first time—takes precedence over urban water supplies that never would have been used for silvery minnow uses in the first place. 

This ruling essentially ignores our nation’s fundamental notion of private property 

freedoms by exerting federal control over locally controlled water resources. It’s little 

wonder that this precedent makes many uneasy in my region of southern California 

who are left wandering what else is going to threaten an already uncertain water 

supply situation on the Colorado River. They have witnessed the Endangered Species impacts on Klamath farmers, then on Albuquerque and Santa Fe urban users, 

and my region currently has endangered kangaroo rats and Delhi Sands Flower-loving flies, so many wonder who the next target will be. 

The Court’s opinion also speaks volumes about the state of the Endangered Species Act. Nearly everyone agrees with the need for endangered species protections, 

but it seems that more money is being spent on litigation and waging battles in the 

courts than on protecting species. No one ever intended this law to become the full 

employment act for lawyers and environmental extremists, but I’m concerned that 

it’s going in that direction. It also says that long years of collaboration can be 

hijacked by someone on the fringe not happy with the initial outcome. It’s time for 

a fresh look at whether the Endangered Species Act can be carried out more 

effectively in a cooperative and scientific manner. I support the efforts of the New 

Mexico Delegation to bring closure to the silvery minnow issue, but a longer term 

ESA fix may be necessary. This hearing is a good start in that direction. 

I look forward to hearing from today’s witnesses and working with my colleagues 

to resolve these issues before us today. 

12

The CHAIRMAN. I’d like to remind our audience that the expression of agreement or disagreement with any of the statements that 

are made is out of order in terms of the decorum of the House. 

I’d like to now recognize a very valuable member of the Committee, Congressman Steve Pearce, for any statement he may have. 

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

Mr. PEARCE. Thank you, Mr. Chairman. This issue is extremely 

important. We have people who’ve driven here from Kansas, Arizona, Texas, Colorado and, of course, here in New Mexico. We all 

understand in the west that water is about families, it’s about a 

way of life, it’s about our culture, it’s about our jobs. Water is life 

in the west. It gives value to our properties. And what the Tenth 

Circuit Court did was say that for one single species, all other species have to give up their rights. 

The Tenth Circuit did not mind using waters that were non-native to keep a species alive. If that’s the case, then river water anywhere in America can be shipped anywhere else to keep any single 

species alive. 

Mr. Chairman, as I look at a 2000-year summary of water and 

rainfall in New Mexico, we see periods of extreme droughts. During 

the 13th century and the 16th century there were periods exceeding 10 years. The Rio Grande has been dry for periods of 10 years 

running. In our own lifetimes we’ve been witness to an extremely 

wet period. The 1950s, I can remember the droughts of the 1950s, 

and they did not reach the extremes of the droughts that we’ve 

seen in history. The minnow stayed alive during all of those times 

of drought, of dryness. 

We have a system of reservoirs to store water in this state, four 

reservoirs. The Rio Grande runs basically down the center of our 

state, but four reservoirs up north in New Mexico, they were built 

to store water so that in periods of drought we would be able to 

provide water to our farmers along the acequias and along the 

river. 

I witnessed, in my last year in the legislature in 2000, the 

judge’s order which released 50 years’ worth of water in storage 

during 1 year to keep the minnow alive. That’s like working your 

whole life and spending your whole bank account for nothing, because that water is gone. During my last visit to the state here in 

August there were four-wheel tracks where people were driving 

their ATVs in the river bed. We cannot sustain the flows that the 

judges and that the extreme environmentalists said had to be 

there. And we’ve given up 50 years’ worth of storage in the process. 

Mr. Chairman, it is time that we consider humans in this equation. The Supreme Court has said that water is a private property 

right. The Constitution of the United States says that, on the Fifth 

Amendment, that if the government takes private property rights 

it will compensate those people that it took private property rights 

from. I live in this state and I do not know one person who was 

compensated last year, either irrigators of the City of Albuquerque 

for the water that was taken, I have not seen anyone talking this 

year about the payments that are going to be made for the loss of 

farms, for the loss of livelihoods. 

13

The Native Americans in New Mexico have lived in periods of 

drought and greater rain throughout history. The Spanish came 

through 400 years ago. New Mexico has 400 years of cooperatively 

working to share a shortage, and now the Tenth Circuit Court, 

Judge Parker, say that it’s got to go for one purpose. I don’t think 

that’s right. I don’t think that’s fair. 

Mr. Chairman, I thank you for holding these hearings because 

we must look the people in the eye who are talking about taking 

the water from. There are people that are going to testify today 

who had families in this valley for 400 years. You’ll hear from the 

Native Americans who’ve been here even longer. The Constitution 

is extremely clear that the Federal Government only has those 

rights given to it expressly, that all other rights are reserved from 

the states. Water is a state issue because water is not given to our 

Federal Government. Our Constitution says so. 

I’ve submitted a bill, Mr. Chairman, that should be coming before the Committee, which simply says the Federal Government 

can’t take water to enforce any law; that water belongs to the state 

and to the people of the state. Water belongs to the people, and I 

think we’re going to hear the compelling stories today of the loss 

that’s being incurred because we have let our endangered species 

get out of bounds. 

Mr. Chairman, I applaud you and thank you for being here. 

The CHAIRMAN. Thank you. 

[The prepared statement of Mr. Pearce follows:]

Statement of The Honorable Stevan Pearce, a Representative in Congress 

from New Mexico 

Thank you, Mr. Chairman. I appreciate your willingness to hold this hearing 

today, and to come see for yourself the impact the recent ruling by the 10th Circuit 

Court of Appeals is having in New Mexico. As you can see by the impressive turnout 

today, New Mexican’s are seriously concerned about having their water taken away 

from them. 

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, it is terribly disappointing that both Governor Richardson and 

Mayor Chavez declined the Committee’s offer to testify today. This is the most important issue facing New Mexico, and will continue to be a problem into the foreseeable future. It would have been nice to have Governor Richardson and Mayor Chavez here, however, we are going to move forward with this public dialogue, and try 

to find solutions to resolve our water crisis. The only way we are going to resolve 

this issue is by working together to find a solution. We will not find a solution by 

leaving out those who are directly impacted, and we will definitely not find a solution through litigation, which is divisive, and takes away private property rights 

from the rightful owners. 

There is no justice, common sense or collaboration through lawsuits, many of 

which are filed by those who have no claim to the water, and who won’t lose farms, 

ranches and homes from the courts ill-conceived rulings, rulings that take away 

water rights—the lifeblood of New Mexico. Federal judges who make these decisions 

are also not directly impacted. They never have to see the consequences of their decisions. They don’t see the heartbreaking decisions made by farmers and ranchers 

like Corky Herkenhoff, who decided to idle more than 1/3 of his land because of the 

uncertainty of receiving the water they have a right to use. 

There is no common sense when federal judges insist on New Mexico releasing 

water that took us 50 years to store, particularly when the West and New Mexico 

are in the middle of a severe drought. Releasing water at the rate of 300 cubic feet 

per second is not sustainable. According to a study done for the State Engineer, the 

Middle Rio Grande experiences a drought about once a century, and experienced 

mega-droughts in the 13th and 16th Centuries. Since the 16th Century New Mexico 

has experienced six droughts that lasted for more than 10 years, (11, 12, 15, 15, 

17, 21 year durations) the longest being 21 years. Both the 13th and 16th Century 

14

droughts correlate with known abandonment of pueblos and cultural shifts by the 

Native Americans living in the region. Those droughts saw the Middle Rio Grande 

go dry for 10 year periods, yet the silvery minnow survived those droughts. 

We don’t know how long the current drought will last. We do know that even if 

we come out of the drought tomorrow, New Mexico will be faced with a drought in 

the future. It should be left to New Mexicans to decide how to allocate the water 

within the state. This is guaranteed to them by the Fifth and Tenth Amendments 

to the Constitution. New Mexico, and not the Federal government, owns the water 

rights in the state, and we should have the power to decide when and how to use 

the water we own. 

My bill, H.R. 2603, does just this Mr. Chairman. It guarantees that those who 

hold the water rights can exercise those rights. It returns primacy to the states, 

where it belongs. It protects the Fifth and Tenth Amendments of the Constitution. 

It protects Native American water rights. My bill is a step in the right direction 

because it once again returns to the states the right to allocate and adjudicate water 

rights, instead of having those water rights usurped by federal judges. 

Mr. Chairman I appreciate your concern and interest in this issue, and the time 

you have taken away from your family to be here. Together we can find a solution 

for this problem. I look forward to working with you and other Members, my constituents and the citizens of New Mexico to resolve this problem. 

Thank you. I yield back the balance of my time. 

The CHAIRMAN. I’d like to now recognize Congresswoman 

Heather Wilson for any statements she may have. 

STATEMENT OF THE HON. HEATHER WILSON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

NEW MEXICO 

Mrs. WILSON. Thank you, Mr. Chairman, and thank you very 

much for coming here today. Joe and Ken thank you for coming. 

Joe, I know this is your hometown and you like to get back here 

and we’re very, very glad to have you here. 

Steve, thank you for hosting this today and for your hard work 

in making this possible. 

Senator Pete Domenici asked me to submit a written statement 

on his behalf, and with unanimous consent I’d ask that that be 

added to the record. 

The CHAIRMAN. Without objection, we’ll include it in the record. 

Mrs. WILSON. Thank you, Mr. Chairman. 

[The prepared statement of Senator Domenici follows:]

Statement of The Honorable Pete V. Domenici, a U.S. Senator from the 

State of New Mexico 

I thank the House Resources Committee and Chairman Pombo for holding this 

hearing in New Mexico on one of the most contentious and significant issues in my 

home state. I also extend my regards to Congressman Pearce, who has done a fine 

job representing Southern New Mexicans over the past year. Further I would like 

to give special thanks to Congresswoman Wilson for attending this hearing and introducing my statement. Also let me acknowledge Congressman Udall for his attention to this matter. 

Mr. Chairman, New Mexico is facing ever increasing pressures on its water 

supply. These pressures come from within—increasing population, changing 

demographics—and from without—lingering drought, federal Endangered Species 

Act requirements, etc. Indeed, the silvery minnow is only one of a host of factors 

that have put farmers and cities and pueblos in the predicament we face today. I 

believe that it is important that we recognize the complexity of the problems that 

we New Mexicans face in order to best come to productive solutions. 

One of the most publicized and discussed of these factors is the silvery minnow 

in the Middle Rio Grande. Indeed, it is the subject for which this hearing is being 

held. I’ve been involved with this issue since long before the minnow was even listed 

as an endangered species. I voted for the ESA and its subsequent amendments almost 30 years ago. I don’t think anyone can reasonably argue against the intent of 

15

the ESA as a just one. But I don’t think the latter day implementation of the ESA 

is what Congress intended either. We envisioned this Act as a means to protect and 

recover species on the brink of extinction because bio-diversity is a vital concern. 

However, we did not envision the ESA as a tool to exert an all encompassing power 

and control over state water supplies and public lands. This is the sort of thing that 

has occurred on the Rio Grande with the silvery minnow. 

The minnow situation came to a head in June with the release of the 10th Circuit’s 3-judge panel decision affirming a ruling that essentially gave ESA precedence 

to contracts established prior to its adoption and granted the Bureau of Reclamation 

a form of discretion that it never had before. While an appeal to the full 10th Circuit 

is ongoing, I have taken steps towards mitigating the opinion’s effects on New 

Mexico. I introduced language on the Senate Energy and Water Appropriations bill 

that will do the following two things: (1) prohibit the federal government from involuntarily taking inter-basin transfer water for ESA purposes on the Rio Grande; and 

(2) mandate the implementation of the 2003 U.S. Fish and Wildlife Biological Opinion’s reasonable and prudent alternatives as the foundation for the minnow recovery 

plan. The language will put a ceiling on how much water can be used to recover 

the minnow without preventing the appeal to the 10th Circuit. 

I hope that New Mexico can take this latest adversity and turn it into an opportunity. The problems created by attempting to save the minnow highlight the growing need for New Mexico to better manage its water and move forward with modernization and adjudication efforts. Even should the minnow be fully recovered and 

de-listed, pressures will continue to mount against New Mexico’s water unless we 

take active steps towards addressing them. 

Mrs. WILSON. I think today’s hearing is about protecting water 

rights it’s a very simple and straightforward issue; that’s what 

today is about. And it’s about making very clear that I believe the 

U.S. Congress has already acted and said very clearly that the 

Tenth Circuit Court decision was wrong. It was wrong on what the 

law is and it highlights the need to clarify the law for it. 

The Endangered Species Act does not authorize the Federal Government to take water it doesn’t own. It does not authorize the 

seizing of water without paying for it. The water in the Rio 

Grande, particularly the San Juan-Chama project, belongs to the 

cities and the people, and the ranchers and the farmers that 

worked in the 1960s to bring that water to New Mexico. 

The Endangered Species Act was never intended to apply to nonnative water. This is not even Rio Grande water. This is water 

from the other side of the Continental Divide, brought to the Rio 

Grande to the Heron Reservoir, through 26 miles of tunnels built 

with Federal money paid for by cities up and down this state, and 

it’s not native to the Rio Grande. 

If they can take water without paying for it, if they can take 

water that’s not even native to the Rio Grande, then they can take 

anybody’s water. They can take water from Missouri that is 

trucked in, they can take this water and where every single one of 

us go down to the river and pour it in. That wasn’t what the law 

is for and it needs to be clarified. 

The House has now acted and clarified, there’s an overwhelming 

voice vote in the House of Representatives to an amendment that 

Steve Pearce and I put on the Energy and Water Appropriations 

bill. And that bill, that amendment says the water from the Middle 

Rio Grande project, and from the San Juan-Chama project, that includes all of the irrigators and all of the water purchased by the 

City of Espanola, to Taos, Los Alamos, and Albuquerque, Belen and 

Los Lunas, cannot be used for the purpose of complying with the 

Endangered Species Act. 

16

In the Senate the, our two senators, Senator Bingaman and Senator Domenici, have comparable legislation to address this issue 

and to override an incorrect decision by overreaching courts. 

I don’t think today is about whether we’ll recover the silvery 

minnow or whether we want to protect the endangered species, because we all do. In fact, working with our senators over the last 

5 years, we’ve got 24 million dollars in Federal funds for the restoration of the Rio Grande, for the eradication of salt cedar, the improvement of efficiency of our irrigation system and for the recovery of the silvery minnow in a kind of ground-breaking project operated by the City of Albuquerque at the zoo to breed the silvery 

minnow and restore the endangered species. And we’re thinking 

outside of the box on our water future, on research and development, on desalinization and of brackish water, on interstate utility 

law. It is easier to put in a natural gas pipeline across state lines 

than it is to put a water pipeline in across state lines. 

It’s not about whether we will recover this species, that’s not the 

issue here. But the reality of today is that none of all these efforts 

of conservation matter, none of them matter if the Federal Government can seize our water rights and take our water without paying 

for it. We can never plan for our water future if they can do that. 

We can’t underestimate the importance of the issues we’re addressing today. San Juan-Chama project water is planned 70 percent of the water supplied to the City of Albuquerque; 30 years 

from now if we don’t have that water, when you turn on your tap 

there won’t be any water coming out of it. That’s how serious this 

issue is. 

And it’s not only for Albuquerque, that water has been purchased 

by the citizens of Santa Fe, and Espanola, and Los Alamos, and 

Belen, and Los Lunas, and Bernalillo, and Taos, and three tribes, 

and brought here to New Mexico to plan for their future. If the 

Federal Government, 4 years after the fact, 4 years after the 

project was started, can just walk in and say, ‘‘I’m sorry, we’re taking your water,’’ how do you go to the next bond issue and say, 

‘‘Oh, want you to raise your water rates to plan for your water future,’’ if somebody can take it away from you or take it away from 

your children? We can’t. And that’s why Congress must step in and 

restore the balance of New Mexico water rights so that we can protect our water for our children and for our children’s children. 

Mr. Chairman, again, I thank you very much for holding this 

hearing today and for hearing directly from people who are affected, why Congress must act and we must insist that we fix this 

problem now. 

The CHAIRMAN. I would like to now recognize our first panel of 

witnesses: Ms. Jessica Sanchez, who is a family farmer and rancher representing the New Mexico cattle growers and New Mexico 

Farm and Livestock Bureau; Ms. Eileen Grevey Hillson from 

AguaVida Resources; The Honorable Anthony Ortiz, Governor of 

the Pueblo of San Felipe; Mr. John D’Antonio, New Mexico State 

Engineer; Ms. Alletta Belin, New Mexico Counsel; and Dr. Tom 

Wesche, HabiTech, Incorporated. 

Before the witnesses testify we will, it is customary for the 

House Resources Committee to administer the oath. I’d like you, all 

the panel to stand and raise your right hand. 

17

[witnesses sworn.] 

The CHAIRMAN. Let the record show they all answered in the 

affirmative. 

I would like to now recognize Ms. Jessica Sanchez to testify for 

5 minutes. All of the witnesses’ oral testimony will be limited to 5 

minutes. You’re entire written testimony will be included in the 

official record, but if you could limit your oral testimony to 5 minutes it will help to get to the question and answering and to stay 

within our time limit. In front of you is the lights there, and it 

works just like a stop light; green means go, yellow means hurry 

up, and red means stop. And so as you watch the lights it will give 

you an idea. Ms. Sanchez, if you’re ready you can begin. 

STATEMENT OF JESSICA SANCHEZ, FAMILY FARMER AND 

RANCHER, BELEN, NEW MEXICO 

Ms. SANCHEZ. Representative Pombo, members of the Legislature, Congressmen of the United States, families, neighbors and 

friends, all are welcome. Good morning and welcome to Belen, New 

Mexico, my beloved town. 

I appreciate this opportunity to come on behalf of my friends, my 

family and some of the organizations that are imposed in these 

matters and are affected by the Endangered Species Act. The organizations that I’m referring to are New Mexico Cattle Growers, 

New Mexico Farm Bureau and the Rio Grande Water Association. 

I am the oldest of nine children of the family of Roland Sanchez 

and Elia Sanchez. Our forefathers came to this valley, the Rio 

Grande Valley with Juan de Onate. 

Our family has been in this valley for the last 400 years. They 

created and established the rights of water and the rights of the 

land with three different nations, Spain, Mexico, and later the 

United States of America. And this was done on the Treaty of Guadalupe Hidalgo. Now we are told that there is Endangered Species 

Act compliance and that we may lose these rights which we have 

worked for for 100 years. And the water rights are no different 

than the blood that runs in our veins. 

With your permission this is all that we are going to interpret. 

Thank you. 

Mr. Chairman, Committee members, you know I have submitted 

a testimony concerning the issues in the written copy addressed 

here today, and I will do my own best to just overview a few critical points if time allows. 

There are many devastating examples of the toll we have taken 

due to the past decision involving the silvery minnow and the 

southwest willow flycatcher. One of these examples is my grandfather, Florian Padilla, who I am very proud of. I remember being 

in the fields with him when he was, when I was younger; my sister, he would take us out to the chili fields he would show us how 

to irrigate and care for this land, just as his forefathers taught him 

before. So it is sad for me to see that he has lost over 30 percent 

of his crop this year due to the judgment regarding the silvery minnow and the willow flycatcher brought forth by the Endangered 

Species Act. He is just one example of the many farmers and 

ranchers in this area whose livelihoods have been affected by this 

decision. 

18

My family is much like many of the others in New Mexico, and 

in the west, who are trying to hold on to the last bits of customs, 

cultures and land. 

There is probably no single segment of society, in my opinion, 

that is concerned with more, or more instrumental in conserving 

wildlife and the environment than those of us involved in agriculture. We love the land and work it every single day. 

We provide homes and habitats for countless species every day 

without even thinking about it. We are the first and the foremost 

conservationists, and environmentalists, of this land. But our conservation practices have been infracted upon by decisions made on 

part of the minnow and the flycatcher. 

I am neither an attorney or biologist. I am a graduate in Agriculture of Animal Science, but the information given has told me 

that there is not enough science to base sweeping decisions that 

cannot only destroy families and economies, but animals as well. 

The case, The Rio Grande Silvery Minnow and the Southwestern 

Flycatcher versus Keys case is an example, great example of this 

fact. 

We are told that the minnow must have constant water supply 

in order to survive. If there’s one major thing that can be done in 

order to give them this constant water supply, it’s to take out the 

non-native salt cedar from the rivers. OK, we’ve got the technology 

to do that, let’s go ahead. But wait a second, we can’t do that, the 

willow flycatcher may need that non-native salt cedar in order for 

its nesting habitat. 

So my question is, are we protecting the silvery minnow or are 

we protecting the willow flycatcher? This is a glaring flaw in the 

Endangered Species Act. If we don’t get our water promised to us 

under contract, my family, the family I love, and others, will lose 

their field, which results in a loss of feed to our cattle, which can 

only be replaced by the purchase of alternative feed and added cost. 

I’d like to thank you all again for coming to New Mexico. Our 

rural communities are dying of this exodus and our land is suffering with the catastrophic effects of mismanagement at the hands 

of our Federal Government. If we cannot count on our justice system for common sense and fairness, we look to leaders like you to 

help make the changes necessary. 

Please help take time to listen to those who have been suffering 

at the hands of the Endangered Species Act. As I have said, we are 

the best conversationalists that this nation has and we need your 

help in order to protect, not only the land, its creatures, but also 

our families, communities, our customs and cultures. It is 

imperative that you act on this issue before we lose another farming season. 

I know we have addressed two species here today, but there is 

a third, and that’s the human race. The decision made has taken 

a toll on us economically, physically and emotionally. The land is 

our soul and the water is our life blood. I beg you to help the community, my family and me, to hold on to the last shred of heritage 

that we have left. 

And as I started with bienvenidos, welcome, I leave you with 

bienviaje, good journey, because it is a good journey that we have 

embarked on here together today. Thank you. 

19

[The prepared statement of Ms. Sanchez follows:]

Statement of Jessica Sanchez, New Mexico Family Farmer & Rancher, on 

behalf of the New Mexico Cattle Growers’ Association, New Mexico Farm 

& Livestock Bureau and Rio Grande Water Users 

Mr. Chairmen, members of the Committee, my name is Jessica Sanchez and I live 

here in Belen, New Mexico. On behalf of the New Mexico Cattle Growers’ Association (NMCGA) and the New Mexico Farm & Livestock Bureau (NMFLB) and all of 

agriculture impacted by the Endangered Species Act (ESA), let me begin by expressing our sincere appreciation to you for this hearing today and taking the time to 

come to New Mexico to learn first-hand about the tremendously negative impacts 

of the Silvery Minnow and the ESA on our existence as farmers and ranchers. 

As for a little history about me, I am an animal science graduate and local farmer. 

I am neither an attorney nor a biologist. But, I believe my stake in this battle is 

much greater and with greater tenure. My family has been in agriculture in this 

part of the world since Onate—that’s over 400 years—and a heritage we are proud 

of. I am the oldest of six children, ranging from 13 to 26 years of age, and the 

daughter of Dr. Roland and Elia Sanchez. We have a family farming operation here 

in the valley, growing alfalfa and other hay species on 350 acres. In addition, we 

run 250 head of registered Santa Gertrudis cattle. We feed the hay we grow to our 

mother cows and then to background our cattle for our value-added natural beef 

program, as well as selling hay to our neighbors for their livestock operations. We 

have a ranch at Encino, New Mexico, and lease ranch pastures in other various 

parts of the state. 

In today’s agriculture economy, that is not enough income to raise six children. 

Thus, my father has a ‘‘side job’’ as a physician, practicing family medicine in our 

community. My mom and dad built this operation from scratch using the heritage 

and traditional model of their families’ farms. My brothers and sisters and I have 

worked with our parents on the operation for as long as I can remember, just as 

they did with their parents. We are constantly looking at ways to maximize efficiency, while caring for the natural resources entrusted to us. Our natural beef sales 

program is just one example of adding value to our product to enhance income to 

our family farm. 

My grandparents on both sides of the family have always made their living in agriculture. They raise chili, a crop New Mexico is known for the world over. As a result of the water ruling, my grandpa, Florian Padilla, has lost approximately 30 percent of this year’s chili and other row crops. This farm has been his life and his 

income. It’s heartbreaking to see the devastating effects of the ESA on Grandpa. He 

has shown us, since we were young, how to irrigate and care for the land, handing 

down his cultural traditions as did his forefathers before him. 

My family is much like any number of others in New Mexico and the West who 

are trying their best to hang on to the last bit of our custom, culture and land. We 

here in the Southwest are accustomed to dealing with the impacts of Mother 

Nature—drought is just another piece of our culture and has been for literally centuries. We are used to dealing with the effects of a cyclic market, although globalism 

is having its impacts. However, that is a subject for a different hearing. 

The ESA is the killing factor that we have no control over and no tools to deal 

with. We are at the mercy of endless litigation and the courts. Adding insult to injury is the total lack of common sense, balance and reality of the Act. The ESA, 

in it current form, does nothing to promote collaboration and local solutions. 

There is probably no single segment of society that is more concerned with or 

more instrumental in conserving wildlife and the environment than those of us 

involved in agriculture. Farmers and ranchers are the most effective conservationists—and environmentalists—I know. We love the land and work it every day, 

which is our motivation to create and protect habitat for all species, including mankind. We have lived in harmony with the land and its wildlife for generations. Were 

it not for agriculture protecting the land, there would surely be much less diversity 

of species than we have today. And, we feed and clothe our nation and part of the 

rest of the world while we are at it. Less than two percent of the American population is involved in agriculture, yet our country has the highest standard of living 

in the world and are able to provide food for much of the rest of the world. 

The Rio Grande has gone dry countless times over the past several centuries, yet 

there are still silvery minnows, southwestern willow flycatchers and numerous other 

creatures that live up and down the river. How can that be? 

As I said, I am not a biologist, but this tells me that there is not enough science 

to base sweeping decisions that cannot only destroy families and economies, but aniVerDate 0ct 09 2002 09:11 Feb 06, 2004 Jkt 088533 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 J:\DOCS\89218.TXT HRESOUR1 PsN: KATHY
20

mals as well. The Rio Grande Silvery Minnow and the Southwestern Willow 

Flycatcher versus Keys case is an excellent example of this fact. 

We are told that the minnow must have a constant water supply to survive. If 

there is one major thing that could be done to increase the water supply along the 

Rio Grande, it is to remove the non-native salt cedar that guzzles the water from 

the river. Great, let’s go eliminate salt cedar. We have the technology to do that, 

so why aren’t we? 

Wait a minute. We can’t do that. The flycatcher may need that salt cedar for its 

nesting habitat. Are we trying to protect minnows or flycatchers? 

This situation clearly points out a glaring flaw in the ESA. Protecting single species can, and is having tremendous impact on other species. If the goal is truly to 

protect species, we must look at the cumulative impacts on multiple species. If we 

don’t or the animals being protected are doomed to failure, as are we. There must 

be educated decisions that balance the needs of all species—including humans. 

To quote the dissenting opinion of 10th Circuit Court of Appeals Judge Kelly, 

‘‘Under the court’s reasoning the ESA, like Frankenstein, despite the good 

intentions of its creator has become a monster. The ESA was never meant to allow 

the federal government, on behalf of endangered species, to overturn established 

precedent.’’

I couldn’t agree with Judge Kelly more. We along the Rio Grande Valley have 

based our lives and our livelihoods on the river for literally centuries. We have 

counted on contracts for water delivery with our government to run our operations 

for decades. Breaches of those contracts in the form of reductions and disruptions 

of our water supply are costing us not only in terms of the crops we are losing directly, but also in production inefficiency. We never know when we are getting 

water. When it comes, we must use it or lose it regardless of the time, day or night. 

We haven’t been able to plant in our fall fields nor maintain the pasture rotations 

that renovate the soil. In addition, fallow fields will increase the invasion of weeds 

that our communities are dealing with. If we plant to help the soil and protect from 

weed invasion, we are gambling with $60,000 just for seed, on our farm alone. Costs 

of fertilization, labor and equipment wear and tear are all additional. Will we ever 

have the water to properly care for our land? 

If we don’t get our water promised under contract, and loose one or two cuttings 

of hay, we have lost feed for our cattle, which can only be replaced by the purchase 

of alternative feed, at added cost. But we still have the same costs in our equipment, 

land and operating loans, whether we are using it productively or not. And I can 

tell you, without water, it is not productive. We are still paying the same water 

taxes, whether we receive water or not. Our neighbors who purchase feed from us 

are forced to go elsewhere if we cannot provide the hay they need. When they must 

leave the valley for feed it is often at a higher cost of and product. 

Agriculture has come to depend upon contracts with our government for everything from water to risk management to conservation. If the government cannot be 

held accountable to those contracts due to later changes in law, such as the ESA, 

what good is entering into a contract? 

Even more confusing is that the fact that although, apparently our contracts with 

the government are meaningless, New Mexicans are being forced to deliver water 

to Texas under historical contracts and court decisions. Not only is the double standard unfair, but also why are only a few Americans being forced to bear the burden 

of the ESA? If the Act is the will of the public, shouldn’t all Americans be paying 

the price for their desires? How much is the rest of America paying due to the silvery minnow and willow flycatcher? 

The whole ESA requires a strong overhaul. It was a well-intended law designed 

to protect nationally significant species. Instead, it has become a weapon—a 

monster—that is destroying our custom, culture and families. The emotional toll on 

all of us is immeasurable. Our elders are suffering because they are not being allowed to care for their land and their animals. Our youth are being driven from the 

land in search of the ability to care for their families. Health care is well beyond 

the means of most agricultural incomes, which forces young people to commute or 

move to urban centers where benefits are provided with jobs. 

Our rural communities are dying with this exodus. Our land is suffering the catastrophic effects of mismanagement at the hands of our federal government. 

If we cannot count on our justice system for common sense and fairness, we look 

to you, our representatives in Congress to change the law. Simple band-aides aimed 

at addressing specific situations will not solve the problems. 

It is not only those of us along the Rio Grande who is at the mercy of the ESA 

for our water. The San Juan, the Pecos and the Canadian are other rivers in New 

Mexico that will soon be in the same situation. And, we can never forget what the 

ESA has done to Klamath Falls, Oregon. 

21

Congressman Pearce’s H.R. 2603 addresses this issue with regard to water contracts, and starts the process toward reforming the ESA. The government should 

not be able to modify the delivery, allocation or storage of water to be delivered 

under contract. But this is only the first step in addressing the inequities of the 

ESA. 

New Mexico agriculture came together last year and developed the attached list 

of 17 changes in the ESA that would put a heart and brain in the Act. We hope 

you will seriously consider making these necessary changes in the current law. 

Thank you once again for coming to New Mexico and for taking the time to see 

those of us who are suffering at the hands of the ESA. As I have said, farmers and 

ranchers are the best conservationists this nation has and we need your help in protecting not only the land and its creatures, but our families, our communities, and 

our custom and culture. It is imperative that you act this issue before we lose another farming season. Your actions will impact not only we farmers, but our entire 

communities. If we are not financially able to participate in commerce in our hometowns, local businesses like grocery stores, car dealership, and other mom and pop 

operations will die with us. Counties are unable to function without our tax contributions. 

I know that we have addressed the protection of two species here today, but there 

is a third one that is involved as well. That is us, the human race. Decisions that 

have been made have taken their toll on us economically, physically, and emotionally. Help me and others regain trust in our leaders in order to know that my hard 

work on the farm that has paid for my education will not go to waste. 

The land is our soul and water is our lifeblood. Please, I beg you, help my community, my family and me hold on to the shreds of heritage we have left. 

[An attachment to Ms. Sanchez’ statement follows:]

22

The CHAIRMAN. I’d like to remind our audience that any, any recognition, either pro or con, is not allowed under the rules of the 

House. 


89218.001
23

I’d like to now recognize Ms. Grevey Hillson for her oral testimony. 

STATEMENT OF EILEEN GREVEY HILLSON, AGUAVIDA, 

RESOURCES, ALBUQUERQUE, NEW MEXICO 

Ms. GREVEY HILLSON. Chairman Pombo, members of the Committee, Representative Wilson. My name is Eileen Grevey Hillson. 

I’m an Albuquerque native, where the people have lived for over 

300 years. I own a water consulting business called Agua Vida Resources, and my academic and professional background is in natural resources, with an emphasis in the water arena. I am here 

today representing one of my clients, the Albuquerque Business 

Water Task Force. 

It’s members include organizations such as the New Mexico 

Chapter of the National Association of Industrial Office Properties, 

the Greater Albuquerque Chamber of Commerce, the Albuquerque 

Economic Forum, and the Home Builders of Central New Mexico. 

It’s a privilege to be invited here. Thank you for coming to Belen 

and giving us the opportunity to visit with you. 

Chairman Pombo, you asked in your invitation letter about the 

impact of the Rio Grande silvery minnow on the State of New 

Mexico. From a business standpoint it could simply be summed up 

like this. Business needs certainty to stay here, to expand here, 

and certainly to locate here. To the extent that the decisions of how 

to protect and recover the silvery minnow, under the ESA, create 

uncertainty about the amount and reliability of water supplies 

available for human uses in our state, then the impact of the fish 

is decidedly negative. But it’s more complicated than that. 

In keeping with the spirit of your holding this hearing in our 

western state, I will respond to the title that only Clint Eastwood 

movie called ‘‘The Good, the Bad and the Ugly.’’ The late Adlai Stevenson once said that man is a curious animal, he never sees the 

writing on the wall until his back is up against it. 

The good impact of the silvery minnow, besides trying to recover 

the species, is that in the midst of a drought with all of the other 

things that relate to scarce water supplies, the silvery minnow has 

forced onto the radar screen of almost all New Mexicans the need 

for us to be proactively involved with the most effective, efficient 

water resources management. 

And our state government, which I’m sure the state engineer, 

D’Antonio, will address, has been very proactive in trying to do 

this. We’re trying to figure out who owns how much water since 

where, since when, create the funding to fund all the projects we 

need around the state to prevent forest fires, to eliminate non-native species, such as the salt cedar, to do flood control, and to have 

the money for endangered species recovery programs, and to have 

market transfer mechanisms. 

Another good thing about the minnow is that it has spurred regional collaboration, efforts such as the Middle Rio Grande Endangered Species Act collaborative program, of which I am very honored to serve as the vice chair, seek to have representatives of the 

Federal, state, local government, tribal government, along with 

farming, environmental, business and university representatives, 

24

recover the minnow in a way that allows both the human and the 

endangered species to coexist. 

Albuquerque has certainly gone the extra mile, and perhaps even 

a few more miles, because of the silvery minnow and its stewardship of riparian environments. And the business community which 

I represent came to the table, in large measure, due to the silvery 

minnow. The Minnow versus Martinez, which is what Minnow 

versus Keys was originally called, and the Middle Rio Grande Conservancy District versus Babbitt case, involving the critical habitat 

designation of the silvery minnow, really galvanized us into coming 

to all of the tables where water policy decisions are being formulated and implemented. 

The U.S. Fish and Wildlife Service has tried to have a flexible 

partnership with all of us, and that’s a good thing that has come 

perhaps from the minnow. And what has really become a good 

thing from the minnow is the fact that we, as New Mexicans, have 

come very clearly to recognize that we are interconnected and 

interdependent through our water resources and that we are all 

going to hang together or hang alone. 

Now what is the bad? The bad can be summed up in two words 

‘‘the ruling.’’ The Tenth Circuit Court of Appeals’ ruling where the 

Federal Government, as members of the Committee and Representative Wilson have already mentioned, seizes our water, violates 

water rights, takes the unprecedented step of taking water from 

one river basin, the Colorado, into the Rio Grande River for uses 

that were intended to be cities’, farmers’, the Pueblos, and replaces 

that with serving the minnow. As our Attorney General Patsy Madrid said, it sends cracks through the foundations of state water 

law, it creates a climate of uncertainty for the users. 

Judge Kelly, in his dissent, in that decision stated that the Bureau of Reclamation, without any recognized property right to 

water, may now use the San Juan-Chama Middle Rio Grande 

project water to provide in-stream flow to the minnow. In so holding, the court injects uncertainty into settle contractual obligations 

and profoundly alters in disregard of relevant statutory and regulatory authority the obligations of Federal agencies under the ESA. 

This is probably why nine other states have joined in the Amicus 

positions and are being against this decision. 

It takes water from the city, as Representative Wilson said, and 

from cities all up and down the valley where there have been a vision and commitment decades ago, and two to three, in the case of 

Albuquerque, generations of ratepayers making a commitment to 

get this water and to divert it, and treat it, and distribute it to its 

population, and it renders all of that effort meaningless. 

And as Representative Calvert said, it definitely—you stole my 

line—puts real meaning into ‘‘no good deed goes unpunished.’’ In 

a myriad of ways the City of Albuquerque has tried to help the 

minnow through leasing water, through doing all kinds of mitigation efforts. It wreaks havoc on the water resources management 

strategy of the city whose cornerstone is San Juan-Chama water, 

so that we can switch from the unenvironmentally sound mining of 

our aquifer into diverting the surface water that comes from another basin. 

25

It creates grave consequences that are similar, as speaker 

Sanchez mentioned, for the farmers and Pueblos. It doesn’t foster 

greater cooperation, but mistrust. Just as we need a greater Federal-state cooperation on the endangered species issues, the Tenth 

Circuit Court ruling tears this apart. 

The ugly: If business needs certainty to stay here, to expand 

here, or to locate here, then certainly these unsettled contractual 

expectations, which now can’t be met because of the ruling, are 

going to create uncertainty. We hired an economic consultant to 

study the value of the San Juan-Chama water to Albuquerque, and 

he said, with less expected economic growth the Albuquerque economy will be unable to meet the need of the next generation of 

young people, narrowing or closing their options to live in Albuquerque. 

In other words, not only did we agree to seven rate increases 

since 1997 to secure our San Juan-Chama water and to have it 

taken away from us possibly at the last moment when we were 

about to use it, but it will impact our economy in such a way as 

that our own children will not be able to have the option to stay 

here. Now, as a mother of four children, I want to tell you that is 

ugly. 

Since we wouldn’t abandon Albuquerque, the city, what would 

we do? All the possibilities are unpleasant. We can’t continue to 

mine the aquifer, so we could just lose 50 million dollars, plus, and 

go seek for replacement water, desalinization of produced water, 

our good out-of-the-box solutions for down the road but the money, 

the environmental, legal questions make them impossible to replace our San Juan-Chama in the short term. We could buy all that 

water from our neighboring farmers but, as I’ve been told, we could 

do that as soon as we could pry it loose from their cold, dead fingers. And besides that, that massive amount of whole scale transfer 

of water would probably run into problems with the state engineer’s obligations regarding transfers. 

The ruling sets rural folks against urban folks. It polarizes our 

community. We do not want to be Klamath on the Rio Grande. So, 

we recognize that we are the life that wants to live in the midst 

of other life that wants to live. We want to work collaboratively. 

What do we want? We want to support the rehearing that has 

been asked for en banc of the Tenth Circuit Court of Appeals so 

that this ruling can hopefully be overturned. We want to support 

Governor Richardson’s efforts to negotiate with all the parties to 

reach a solution, a local solution for here in the Middle Rio Grande. 

We want to support the legislative remedies that our congressional delegation has put on the table, to take our water off the 

table unless there are willing sellers. And we want to work with 

you to understand if avoiding rulings like this in the future necessitates a review of how the ESA reads a clarification, or of how it’s 

interpreted and implemented. And we want your help in getting 

authorizing legislation to continue the funding of collaborative efforts like the ESA collaborative program. 

We agree with Representative Wilson that this has presented 

grave consequences for the economy and sets a precedent that cannot stand. We agree with Representative Pearce that we need a 

balanced approach to satisfy human and endangered species needs. 

26

Only then can we rest assured that the saga of ‘‘the good, the bad, 

and the ugly’’ does not degenerate into the shoot-out at the OK 

Corral. 

Thank you so much for giving us the opportunity to testify, and 

we look forward to working with you. 

The CHAIRMAN. Thank you. 

[The prepared statement of Ms. Grevey Hillson follows:]

Statement of Eileen Grevey Hillson, Owner, AguaVida Resources 

Chairman Pombo, Members of the Committee: 

My name is Eileen Grevey Hillson. I live in Albuquerque, New Mexico, where I 

own a water consulting business named AguaVida Resources. Both my academic 

training for my Bachelor’s and Master’s degrees in government, as well as my professional experience with local, state and federal government and the private sector 

have been focused in the area of natural resources, most recently with a heavy emphasis on water policy issues. I am here today representing one of my clients, the 

Albuquerque Business Water Task Force, whose membership includes organizations 

such as the N.M. Chapter of the National Association of Industrial and Office Properties, (NAIOP), the Albuquerque Economic Forum, the Greater Albuquerque Chamber of Commerce and the Homebuilders of Central New Mexico. It is a privilege to 

be invited to appear before you today on their behalf. Thank you for coming to Belen 

and giving us this opportunity. 

Chairman Pombo, in your letter soliciting our presentation of testimony at this 

hearing, you requested that we address the impact of the Rio Grande silvery minnow on New Mexico. From a business standpoint, it could simply be summed up 

thusly: Businesses need certainty to stay here, to expand here and to locate here. 

To the extent that decisions about how to protect and recover the silvery minnow 

create uncertainty about the amount and reliability of water supplies available for 

human uses in the state, the impact of this fish is decidedly negative. However, the 

answer is really much more complicated than that. In keeping with the spirit of 

your holding this oversight hearing in a western state, I will respond through the 

title of an old Clint Eastwood movie, ‘‘The Good, The Bad and The Ugly.’’

The Good 

The late Adlai Stevenson once said that ‘‘Man is a curious animal. He never sees 

the writing on the wall ‘‘til his back is up against it.’’ The ‘‘good’’ impact of the silvery minnow, as well as its endangered species counterparts throughout the state, 

is that it has forced water onto the radar screens of New Mexicans, inspiring us 

to proactively, and expeditiously learn to manage our water resources so that we 

avoid having our backs up against that wall. 

While in various parts of the state, among certain stakeholder groups and within 

directly-involved government agencies, water has always, or at least intermittently, 

been a concern, until quite recently, most of us were pretty ignorant of and/or complacent about the short hand Mother Nature dealt us in this area. In approximately 

the same time frame that the Endangered Species Act came into being, New Mexico 

entered a wet phase in its highly variable climate. With water readily coming out 

of the tap in most areas, it had easily escaped our attention that throughout the 

last few decades, we were receiving more water than we had in most of the last 

twenty centuries. Maintaining biodiversity was not threatening or even particularly 

noticeable in that environment. The drought changed everything, making the truth 

hit home: In wet years, we had barely made ends meet in terms of our supplies 

keeping up with our demands. Now in dry years, with increased populations and 

the same interstate compact obligations, we just might not have enough to go 

around if we don’t take action. 

Getting the State’s Water House in Order 

The additional drought-induced demands placed by the silvery minnow and its endangered comrades on an already stressed resource helped spur us into putting our 

state’s water house in order. Towards that end, and with our Governor, state legislature, offices of the State Engineer and Interstate Stream Commission leading the 

charge: 

• We have embarked on an ambitious program to, as quickly as possible, find out 

who owns what water, where and since when—urban, rural and tribal—and to 

have water rights information well-preserved and accessible in a user-friendly 

computer data base format; 

27

• We are developing a State Water Plan to ensure the most effective, coordinated, 

comprehensive management of our water resources in a way that can 

addressthe state’s very diverse and often competing, social, environmental and 

economic needs; 

• We are developing tools like measuring and metering; incentives like tax credits; rules for priority administration and water market transfer prototypes; pilot 

projects for ‘‘produced’’ water; water conservation educational materials -all to 

ensure the most efficient use of our water, compliance with our interstate and 

international treaty contractual obligations and the equitable allocation of the 

water necessary for sustaining urban, rural and ecosystem life; 

• We have institutionalized various funding mechanisms for meeting the approximately $5 billion worth of infrastructure, watershed restoration, flood control, 

and endangered species recovery needs identified throughout the state for our 

present 13 listed aquatic species; and, 

• We have deliberately chosen to do all of the above in a collaborative fashion 

that involves a geographically-dispersed, very diverse group of stakeholders 

interacting with our elected and appointed government officials. 

Last, but hardly least, at least in part due to the impact of endangered species 

issues, 

• We have recognized as New Mexicans that, like it or not, water winds like a 

liquid rope throughout the state, rendering us interconnected and interdependent. We are coming to understand that we can either use it together as 

a life-rope or allow it to hang us. In that spirit, we have collectively endorsed 

having our taxpayer money used to defend the right to have New Mexico’s 

water preserved and put to beneficial use in New Mexico for New Mexicans. 

Minnow Recovery Spurs Regional Collaboration 

At a regional level, in the Middle Rio Grande, the silvery minnow has had a positive effect, in that, to be in compliance with meeting its water needs through the 

Endangered Species Act, diverse stakeholders who might otherwise never have met, 

much less worked together, have come together to begin the arduous process of 

recovery in a world of competing claims for the same resource. One example of this 

is the Middle Rio Grande Water Assembly, where a regional water plan is being 

developed. 

The example most timely and appropriate for today’s discussion is the Middle Rio 

Grande Endangered Species Act Collaborative Program, on whose Steering Committee I am honored to serve as Vice Chair. The Program was established in January of 2003 ‘‘...to strive for the survival and recovery of threatened and endangered 

species in the Middle Rio Grande while simultaneously protecting existing and future uses of water.’’

The 19 signatories who signed the Interim Memorandum of Understanding, committing to participate in its efforts, represent federal, state, local and tribal governments, farmers, environmentalists, universities and the business community. With 

such a diverse membership, procedural and financial constraints and programmatic 

unknowns, the program remains a work-in-progress. While signatories have yet to 

gather ‘‘round the campfire, arms entwined, singing ‘‘Cumbiya,’’ they have realized 

that it is in everyone’s best interests, not to mention those of the fish, to get down 

to work on the innately-right, statutorily-mandated job of recovering the species. 

The Program has developed and implemented a number of recovery programs for 

the silvery minnow and southwestern willow flycatcher, with the aid of almost $30 

million in funding from federal congressional appropriations and considerable 

matching cash and in-kind contributions from non-federal signatories. Further, and 

quite importantly, even when we have had to agree to disagree, and ended up in 

litigation against one another, at least through our discussions we probably narrowed the areas of potential courtroom dispute—and in the meantime moved the 

species that much closer to recovery. In addition, program participants have actually 

engaged in mutually beneficial collaborative efforts on non-species-related water 

issues as a result of our program ‘‘networking,’’—a great side-benefit in New Mexico, 

where money, labor and time are at a premium. 

Albuquerque Goes the Extra Mile and Educates its People 

At a local level, the ESA most assuredly had an impact on the City’s Water Resource Management Strategy, both in terms of the comprehensiveness of its programmatic content and the funds required for its successful implementation. While 

the City, on its own initiative, has for years been developing and implementing programs to preserve and enhance its bosque areas in an environmentally-sound manner, the coincidence of it being declared as part of the critical habitat for the minnow no doubt speeded up and expanded its own riparian habitat restoration activiVerDate 0ct 09 2002 09:11 Feb 06, 2004 Jkt 088533 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 J:\DOCS\89218.TXT HRESOUR1 PsN: KATHY
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ties. To their credit, the City leaders, such as our Mayor, and his Public Works staff, 

have publically promoted actions to sustain a healthy river environment as positive 

contributions, rather than as onerous obligations. 

In the process of informing its residents about the threats to the City’s San JuanChama Project water brought on by the Minnow v Martinez (aka Minnow v McDonald and now Minnow v Keyes) litigation, the City has made its citizenry aware of 

the significant potential social, economic and environmental challenges involved in 

protecting the minnow. In so doing, it has educated its citizenry to recognize the 

scarcity and value of water. Thus, the minnow, may have inadvertently assisted the 

City in making us all more aware and responsible stewards of this natural resource. 

The Business Community Comes to the Table 

Five years ago, with few exceptions, the Albuquerque business community was 

not seated at the tables where water policy decisions were being developed and implemented. Organizations such as the Economic Forum and the Greater Albuquerque Chamber of Commerce (GACC) had studied various water quality and 

quantity issues and adopted resolutions strongly supporting the San Juan-Chama 

Project, but organized interaction with other stakeholder groups had not occurred. 

The Minnow v. Martinez lawsuit, which had environmental plaintiffs arguing that 

our San Juan-Chama Project water should be on the table for helping to meet minnow needs, and the MRGCD v Babbitt case, where it appeared that a critical habitat designation for the minnow had been made without sufficient sound scientific 

and economic data, changed all of that. 

Two of Albuquerque’s major business organizations—NAIOP and the Economic 

Forum—formed a Joint Water Task Force. One of the key rallying points and first 

action items was to hire a consultant to research and report on the economic implications to the City and the region of the contested issues involving the minnow and 

to enter amici positions with that report attached in both lawsuits to help protect 

the sanctity of our San Juan-Chama water. In the process, we began to realize the 

complexity of our state, regional and local water issues and the direct connection 

between how they were resolved and our very economic sustainability. Other business organizations, such as the GACC, were invited to join our efforts and that 

marked the beginning of the Albuquerque Business Water Task Force which I am 

representing here today. 

Members are actively involved in a multitude of collaborative water efforts around 

the state, including the Governor’s Blue Ribbon Task Force on Water, the State 

Water Trust Board, the Water Quality Control Commission, the Middle Rio Grande 

Water Assembly, and the Town Hall on the State Water Plan. We have started our 

own Business Water Conservation Task Force with activities ranging from helping 

build New Mexico’s first water-efficient Habitat for Humanity home to conducting 

internal studies to determine what more we can do to improve water conservation 

in the business sector and the city as a whole. 

We have brought our concerns on a number of water policy issues before our City 

Council, to the Governor and state legislature and to our congressional delegation. 

In short, in part thanks to the minnow getting our attention, we are now fully engaged in the water policy arena. And the minnow continues to hold our attention. 

Most recently, we organized the submission of resolutions/letters of support from 17 

business organizations representing several hundred thousand local citizens to be 

included in the BOR’s Draft EIS on the City’s Preferred Alternative for the San 

Juan-Chama Drinking Water Project (The Preferred Alternative includes a significant number of projects to protect the minnow) and, we are, of course before you 

today on the subject of the Tenth Circuit Court ruling centered around the minnow. 

U.S. Fish and Wildlife Service: A Flexible Partnership 

The last example of a positive impact that has come from the silvery minnow in 

New Mexico is the positive effort made by the regional and local field service staff 

of the FWS over the last few years to allow for increased flexibility and regulatory 

certainty in the process of conserving the silvery minnow. There has truly been an 

admirable attempt to develop innovative ways to work cooperatively with stakeholders in keeping with both the 1982 amendment to the ESA (ESA section 2(c)(2)) 

and the spirit of the FWS’s 1997 10 Point Plan to ‘‘Making the ESA Work Better’’ 

(printed, 1997, reprinted, 1998) To the extent that this positive ‘‘can-do,’’ adaptive 

management-type of approach is carried out, it minimizes stakeholder conflicts and 

thus contributes to the ultimate success of species recovery efforts. The March 13th, 

2003 Ten Year Biological Opinion is an example of trying to interpret and implement the ESA in such a way that, in wet and dry years, the feds and non-feds can 

work together to protect the silvery minnow without making humans endangered 

in the process. From an economic standpoint, the business community heartily welVerDate 0ct 09 2002 09:11 Feb 06, 2004 Jkt 088533 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 J:\DOCS\89218.TXT HRESOUR1 PsN: KATHY
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comes these efforts, as they promote a greater sense of stability about what is needed to protect the species, as well as expectations that positive outcomes will come 

to all water users through the recovery process. 

The Bad 

It is pretty easy to sum up ‘‘The Bad’’ in two words: ‘‘The Ruling.’’ The Tenth Circuit U.S. Court of Appeals ruling in the Rio Grande Silvery Minnow et al. v. John 

W. Keyes III: • Takes the unprecedented step of ordering water imported from the Colorado 

River Basin into the Rio Grande Basin for use by the people of Albuquerque 

and other cities, farmers and Pueblos to be used instead for the silvery minnow; • ‘‘...sends cracks through the foundation of our State water laws and creates a 

climate of uncertainty for our users.’’ (News release quoting NM Attorney General Patricia Madrid, 8/11/03) • Quoting from Judge Paul Kelly’s dissent, ‘‘The court holds that the BOR has 

discretion to deliver less than the full amount of available San Juan-Chama 

(SJC) and Middle Rio Grande (MRG) project water to its contractors.’’ ‘‘...thus, 

the BOR, without any recognized property right to the water in question, may 

use this stored project water to provide instream flows for the silvery minnow 

to alleviate jeopardy to that species under the Endangered Species Act (ESA). 

In so holding, the court injects uncertainty into settled contractual expectations 

and profoundly alters, in disregard of relevant statutory and regulatory authority, the obligations of federal agencies under the ESA.’’ (Judge Paul Kelly in dissent in Minnow v Keyes, p1) (Emphasis added); (Attorney General Madrid and 

Judge Kelly’s remarks may explain why nine other western states with 

Reclamation contracts are joining New Mexico in attempting to overturn the 

decision); 

• Takes water that the forefathers of the City of Albuquerque had the vision and 

commitment to contract for decades ago, for use by future generations of its 

citizenry—and that two or three generations of Albuquerqueans have now paid 

tens of millions for through their water rates—and puts it on the table for uses 

other than those for which it was intended, AND DOES THIS exactly at the 

time that the City is ready to begin diverting, treating and distributing that 

water to its population; 

• Puts real and painful meaning into the cliche ́ that ‘‘no good deed goes 

unpunished,’’ considering that the City has gone considerably more than the 

extra mile in regards to assisting with recovery of the silvery minnow itself, for 

example: 

• The City has leased unused SJC water which has ultimately allowed for 

supplemental minnow water to become available; 

• The City has contributed large amounts of funding, personnel and operating costs since 1999 for the minnow breeding program at the Albuquerque Zoo and now contributed again, with the donation of land and 

design and construction participation for the minnow’s Naturalized 

Refugium; 

• The City has conducted silvery minnow swimming speed studies to 

achieve design criteria for fishways; 

• The City is participating in minnow monitoring studies for the Albuquerque reach; 

• The City organized and helped staff the 2003 minnow egg collection; 

• The City has contributed staffing and management for the ESA Collaborative Program; and last, but not least, 

• The City has created a plan for its diversion project which tries to mitigate any potential negative effect on the minnow of that diversion. 

• In sum, the ruling threatens to wreak havoc with the cornerstone of the City’s 

1997 environmentally and financially sound, Water Resource Management 

Strategy which would transition the City away from continuing the environmentally unsustainable practice of mining its aquifer for drinking water to 

using instead its imported surface water; 

• The ruling has different but similarly grave consequences for the farmers and 

Pueblos of the Middle Rio Grande, thus threatening region-wide disruption of 

the livelihoods of hundreds of thousands of New Mexicans. 

• The ruling flies in the face of fostering greater cooperation between the ESA’s 

implementing federal agencies and the states, as was statutorily directed by the 

1982 ESA amendment Sec 2 (c)(2); and, 

• Instead, the ruling creates an atmosphere of highly unproductive mistrust into 

Federal/state and/or local relationships. Just as groups like the Western States 

Water Council are recognizing the significant need for federal/state collaboraVerDate 0ct 09 2002 09:11 Feb 06, 2004 Jkt 088533 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 J:\DOCS\89218.TXT HRESOUR1 PsN: KATHY
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tion to reduce conflicts between the water use needs of endangered species and 

human water users, the Tenth Circuit ruling tears them apart. 

The Ugly 

Judge Kelly notes in his dissent that ‘‘This case has enormous significance. Although the contracts at issue establish certain bilateral rights and duties, the 

court’s interpretation renders the contracts somewhat illusory because the BOR will 

have the discretion to modify those rights and duties, thereby rendering uncertain 

the parties’ settled contractual expectations.’’ (p. 34 of his dissent in Minnow v 

Keyes) 

Now, at long last, I return to my initial response to your inquiry. If business 

needs certainty to stay here, expand or locate here, and an available and reliable 

water supply is important to their perception of ‘‘certainty,’’ then, as Judge Kelly 

implies above, the majority ruling involving meeting the minnow’s water needs with 

supplemental flows that come from our contracted San Juan-Chama water could 

create a very negative economic impact for Albuquerque and in fact, the entire Middle Rio Grande. Albuquerque itself has been counting on this water to supply 70% 

of its water needs to the year 2060, as it cannot safely continue its current rate of 

groundwater pumping. All its prudent, farsighted planning is now put at risk. 

As our economist consultant, Dr Brian McDonald said in his report, ‘‘Water, Regional Economic Development and the Public Welfare,—‘‘With future water physically constrained and less reliable, Albuquerque’s continued economic health will be 

undermined.’’ McDonald goes on to explain that ‘‘...If businesses perceive our area 

as less attractive due to uncertain water supplies, there will be less economic 

growth, which will result in the local tax base being insufficient to provide public 

goods and services which are an important component of the region’s quality of life 

and public welfare.’’ (McDonald report, p. 2) 

As a mother of four children, I would like them to have the option to live here. 

Dr. McDonald dashes those hopes with his next statement, ‘‘..With less expected economic growth, the Albuquerque economy will be unable to meet the employment 

needs of its next generation of young people, narrowing or closing their options to 

live and work in Albuquerque.’’ In other words, not only may I, and hundreds of 

thousands of other responsible citizens here, have agreed to seven annual water rate 

increases since 1997 to secure our San Juan-Chama water to have it, through this 

ruling, possibly taken away at the last moment, but the result of that action may 

be that our community will not have the economic wherewithal to sustain our own 

children. NOW THAT IS UGLY. 

Since we would assumedly not put up with abandonment of our City for a lack 

of water, what would we do? Here are some unpleasant possibilities: 

• Faced with a groundwater resource that is depleting, causing subsidence and 

having increasing water quality issues, we would have to swallow an over $50 

million dollar loss and go out looking for replacement supplies; 

• Replacing 48,200 AF of San Juan-Chama water, at today’s cost of approximately 

$4,500/AF for water rights, including transaction costs could cost the City over 

$300 million dollars -and that doesn’t begin to touch the opportunity cost for 

what we could have done with our San Juan-Chama payments or this $300 

million; 

• Now we are faced with the question of where are we going to get this much 

water in the time frame we need it? Desalination and oil and gas ‘‘produced’’ 

water could not fill the bill in such short order, even if there were not economic, 

environmental and legal obstacles involved. Could we lease that much water 

from the other stakeholders on the Middle Rio Grande? For many, sure, if we 

could pry it out of their cold, dead fingers; 

• Even assuming that were possible, now we are talking about destroying an entire way of life for farming folks, many who have had that livelihood as an integral part of their family heritage for generations and generations; 

• Even if that were a viable, desirable option, the Middle Rio Grande has not 

been adjudicated, thus rendering almost moot the idea of ensuring timely acceptance by the State Engineer for such a whole-scale place and purpose of use 

transfer of water; and 

• Obviously, to use the roadmap set forth through these hypothetical responses 

to the loss of our San Juan-Chama water would set urban dwellers against agricultural water users. It would polarize our entire region, and make water policy 

options a zero-sum game. We do not want to re-enact Klamath on the Rio 

Grande or worse, thank you very much. 

Our City Fathers, in the 1960’s, took bold steps to ensure an adequate public 

water supply for future generations living in a growing, prosperous and peaceful Albuquerque, through the purchase of the San Juan-Chama water. They charted a forVerDate 0ct 09 2002 09:11 Feb 06, 2004 Jkt 088533 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 J:\DOCS\89218.TXT HRESOUR1 PsN: KATHY
31

ward-looking path and started down it. We are fortunate to actually have one of 

those gentlemen involved in our Business Water Task Force today. It is time for him 

to pass the baton to us so that we can cross the finish-line with the diversion, treatment and distribution of water to Albuquerque that translates his dream and that 

of his colleagues into our present reality and our children’s water future. And that’s 

a peaceful water future without a concurrent civil war with our rural neighbors. We 

truly can do no less. 

So, how do we propose to do this? 

• By offering support to all those presently engaged in securing an en banc rehearing of the Tenth Circuit Court’s decision. It should be overturned; • By wishing all the parties well who are engaged in Governor Richardson’s efforts to find a negotiated settlement to the competing water users’ needs which 

have led us to this point; • By supporting the legislative remedies offered by our Congressional delegation, 

through added language to the Water and Energy Appropriations Bills, to take 

our San Juan-Chama Project Water off the table as a mandated BOR ‘‘discretionary’’ fix to the supplemental water needs of the Rio Grande Silvery Minnow, 

unless there are willing sellers; 

• By working with you and the rest of your House Resource Committee members 

to understand if avoiding rulings of this nature necessitates a review of how the 

Endangered Species Act reads, or of how it is interpreted and implemented. 

We agree with our Congresswoman Heather Wilson that ‘‘The court’s decision has 

enormous consequences for all western states where water is such a valuable resource and critical part of the economy’’ and that therefore, ‘‘This sets a precedent 

we can’t allow to stand.’’ (press release, August 30) and with our Congressman Steve 

Pearce, that we ‘‘need to find a balanced approach to satisfy the needs of both 

human water users and endangered species.’’ (press release, August 30) 

We look forward to working with you all to ensure we reach that balanced approach. Only then can we rest assured that the saga of ‘‘The Good, The Bad and 

the Ugly’’ doesn’t end with a ‘‘shoot-out at the OK Corral!’’

Once again, on behalf of the Albuquerque Business Water Task Force, we greatly 

appreciate your interest in and commitment to making the ESA work in the west 

for both human and endangered species, and your giving us the chance to share our 

views. 

NOTE: Exhibits attached to Ms. Grevey Hillson’s statement have been retained 

in the Committee’s official files. 

The CHAIRMAN. I’d like to now recognize The Honorable Anthony 

Ortiz. 

STATEMENT OF ANTHONY ORTIZ, GOVERNOR, PUEBLO OF 

SAN FELIPE, ACCOMPANIED BY SUSAN WILLIAMS, LEGAL 

COUNSEL TO PUEBLO OF SAN FELIPE 

Mr. ORTIZ. Good morning. Good morning, Chairman and Honorable Congressional Delegates. It is an honor and a privilege to be 

before you here today to give testimony on behalf of my tribal council. So on behalf of my tribal council, the Pueblo of San Felipe highly values water. It is important to all of our customs and traditions. 

We do not waste water. 

We have lived on this land over a thousand years and find joy 

in the spiritual connection we share with the water and the land 

that the Creator has provided to us. 

We are concerned that the Federal Government is not living up 

to its trust responsibilities because of the Department of the Interior is not protecting our senior Federal reserved water rights. This 

is a great threat to the survival of our ancient customs and traditions. 

For example, the Bureau of Reclamation is refusing to store sufficient water to our use, in clear violation of Federal law. 

Additionally, Reclamation continues to make unauthorized illegal 

releases of our storage water. 

32

The United States also has failed to adequately maintain the 

Pueblo’s water delivery system. 

Finally, Reclamation is threatening to use our senior Federal 

water rights without our permission to accommodate municipalities 

and non-Indian farmers who don’t want to share their junior water 

rights with the minnow. 

All of this must stop. The Federal Government must provide the 

Pueblos with funding necessary to fully settle and permanently 

protect our water rights, and take all actions in accordance with 

the Federal trust responsibilities owed to the our tribe, Pueblo. 

We understand that many families and communities need water 

also. We are here to work cooperatively to find solutions that will 

be good for everyone. In order to do this our senior rights must be 

considered and the Pueblos must have the place at the table with 

this Honorable Congressional Delegates. 

We have other concerns of water. There’s lot of ways that we do 

survive from the water. It has been passed on to us in generations 

from our ancestors and our elders. There’s lot of ways that we use 

water that we benefit from, because that is what we were taught 

from our elders and our ancestors. 

It cleanses our body when we are weak, when we are ill. It is 

how we cleanse our body in order to get the strength, in order to 

continue on with our lives. It is not only irrigation that is involved, 

there are a lot of aspects to water. We, as Pueblo people up and 

down the Rio Grande, we have a unique way of using the waters. 

We don’t waste waters. Once we open the gates to irrigate we have 

a way of talking to the water in order to get the crops that we are 

looking for toward, to survive our families. 

So I would wish and hope that we are considered to come to the 

table, to come with a solution to take care of the matter here. So 

with that, I hope, and I pray for you, and that our spiritual guidance will be with you to make a sound decision, to come with a solution to take care of everybody’s needs here. Thank you very 

much. 

The CHAIRMAN. Thank you. 

[The prepared statement of Mr. Ortiz follows:]

Statement of The Honorable Anthony Ortiz, Tribal Governor, and Susan M. 

Williams, Pueblo Legal Counsel, Pueblo of San Felipe, New Mexico 

1. The silvery minnow water needs and related Federal actions threaten 

the survival of traditional Pueblo life. 

For the first time in history, the silvery minnow water crisis and the current 

drought will require the Federal and state governments to enforce senior water 

rights in accordance with the prior appropriation system. Because the United States 

has seriously over-engineered the Rio Grande with many dams and reservoirs, the 

natural ecosystem is in crisis and the silvery minnow is on the brink of extinction. 

At the same time, Federal mismanagement of the river and water delivery systems 

has made it very difficult for the Middle Rio Grande Pueblos to continue our ancient 

customs and traditions that depend upon our precious water. 

The current actions and inactions of the United States with regard to the silvery 

minnow are causing tremendous negative impacts to the cultural, religious and social structure of the Pueblo of San Felipe. The United States is refusing to act in 

accordance with well-established principles of Federal reserved water rights law and 

the Federal trust responsibility owed to Indian tribes and pueblos, as explained 

below. Simply put, the United States is trying to solve the silvery minnow water 

crisis without regard for the senior Federal reserved water rights of the Middle Rio 

Grande Pueblos. 

33

When you visit our Pueblo, you will not see any golf courses, public parks, or residential grass lawns. Rather, the Pueblo highly values water and thus uses this precious resource only for consumption, cooking, growing food, and bathing. The Pueblo 

does not waste water. 

Despite the Pueblos’ senior water rights entitlements, many traditional Pueblo 

farming families are not able to use their lands for subsistence farming because of 

a lack of available water. This lack of available water is caused by the actions and 

inactions of the United States. Because the Pueblo economy and social structure has 

survived for centuries on the strong foundation of traditional farming and related 

ceremonies, the United States’ actions and inactions aimed at dismantling this foundation threaten the very existence of traditional Pueblo life. 

In our traditional ways, the fields, the crops, and the water provide answers and 

solutions to challenges we must face as a community, including family stability, 

community violence, education, youth development, and elderly issues. When the 

crops and the water are not available on our lands, our traditional community becomes fractured, and additional social problems emerge. 

We want the future generations to work our lands and learn our traditions from 

our elders. We want Pueblo life to stay strong and healthy. Without our water, none 

of this is possible. Without our water, our traditional roots will dry up and our 

Pueblo community will wither away. 

2. The Bureau of Reclamation must use water, otherwise contracted to 

municipalities and non-Indian farmers, to ensure survival of the silvery 

minnow. 

The 10th Circuit Court of Appeals recently held that the delivery of water pursuant to Federal contracts to municipalities and non-Indian farmers must be curtailed 

in order to ensure the survival of the silvery minnow, in accordance with the Endangered Species Act. This means that municipalities and non-Indian farmers have less 

water available from Federal reclamation projects than they would like to have. 

Because a water shortage was anticipated when the current water delivery contracts and construction funding contracts were drafted, these contracts include 

drought and shortage clauses which limit the amount of water to be delivered to 

non-Federal contracting parties in a time of shortage. These contract provisions are 

well summarized in the 10th Circuit opinion. See Rio Grande Silvery Minnow v. 

Keys, 333 F. 3d 1109; 2003 U.S. App. LEXIS 11672 (10th Cir. 2003). 

Despite these clear contract limitations and conditions, the municipalities and 

non-Indian farmers continue to maintain that water is being denied to them illegally in violation of their Federal contracts. As the 10th Circuit clearly explained, 

that claim is simply not true. The municipalities and the non-Indian farmers do not 

have a right to receive contract water when that water is not available. Under the 

current conditions, the water desired by the municipalities and the non-Indian farmers is not available due to the drought and Federal needs related to the flow requirements for silvery minnow survival pursuant to the Endangered Species Act. 

Currently pending are proposed Federal appropriation riders that are intended to 

prevent the Bureau of Reclamation from expending funds in any manner that deprives municipalities and non-Indian farmers of contract rights to receive water 

without a voluntary sale or lease. However, as the 10th Circuit Court of Appeals 

plainly explained, these users do not have any rights to receive contract water in 

times of shortage, and are not somehow entitled to sell or lease water to the Federal 

government in times of shortage. Rather, the relevant contracts expressly condition 

all delivery on the availability of water (which is not currently available). Moreover, 

as the Court explained, the contracts contemplate the application of subsequent 

Federal laws, including the Endangered Species Act and its water flow limitations. 

For these reasons, there is no contract right for municipalities or non-Indian 

farmers to receive contract water when it is needed for Federal purposes such as 

the minnow, or when it is unavailable due to drought. Thus, the proposed riders 

requiring ‘‘willing sellers’’ are not in accordance with either Federal water law or 

the express language of the contracts signed by the municipalities. 

This is a concern for the Pueblo of San Felipe because Reclamation has repeatedly 

informed the Pueblos that Pueblo water will be used for minnow purposes if Reclamation is unable to find enough junior users who may ‘‘agree’’ to become ‘‘willing 

sellers’’ of their contract water delivery rights. In accordance with Federal law, the 

United States must exhaust all efforts to obtain minnow water from junior water 

users, and must not deprive the Pueblo of its senior water rights in that process. 

The ‘‘willing sellers’’ requirement creates an additional serious threat to the availability of water for Pueblo use because Reclamation will use Pueblo water if the junior users refuse to become ‘‘willing sellers.’’

Simply put, the junior water users with water delivery contracts have no vested 

water rights to sell to the Federal government. The United States’ desire to ‘‘buy’’ 

34

such non-existent water rights must not come before its respect for the senior Federal reserved water rights held by the Middle Rio Grande Pueblos. 

3. Permanent solutions will require significant Federal funding and resources to allow a settlement of Pueblo water rights. 

In order to create permanent solutions to water shortage and allocation issues in 

the Middle Rio Grande basin, it will be necessary to agree upon the amount of senior Federal reserved water rights held by the Pueblos. This settlement can be accomplished best through the Federal government’s formal Indian water rights settlement process. 

To move this process forward, the Federal government must fund the technical 

engineering and legal work necessary to determine the amount of water to which 

each Pueblo is entitled. If the Pueblos receive the full Federal funding necessary for 

meaningful participation in this Federal process, a comprehensive settlement of 

Pueblo water rights could move forward quickly. Until such settlement of senior 

Pueblo water rights is accomplished, there will be no certainty regarding the availability of water for junior water users such as the City of Albuquerque and nonIndian farmers. Thus, it is in the best interests of all concerned for the Federal government to provide adequate and immediate funding for the settlement process. 

The total amount of Pueblo water rights best can be determined only through this 

type comprehensive settlement process. The only other alternative for resolving the 

Pueblo water rights is years of contentious and expensive litigation. 

Federal law requires a measurement of Pueblo water rights that will provide 

enough water for the present and future homeland needs of the Pueblo. The United 

States Supreme Court has long held that Federal Indian reservations were set aside 

as permanent homelands for Indian people to live upon in a self-sustaining fashion 

into the indefinite future, with enough water reserved for Pueblo use now and for 

all the future generations. 

In the landmark case of Winters v. United States, 207 U.S. 564 (1908), the United 

States Supreme Court held that Congress, by creating the Indian reservation, 

impliedly reserved ‘‘all of the waters of the river—necessary for—the purposes for 

which the reservation was created.’’ Winters, 207 U.S. at 576. The Court further declared that this reservation of water was not only for the present needs of the tribe, 

but ‘‘for a use which would be necessarily continued through years.’’ Winters, 207 

U.S. at 577. 

This principle outlined in Winters is now well-established in Federal water rights 

jurisprudence: the United States, in establishing Indian or other Federal reservations, impliedly reserves enough water to fulfill the purpose of each Federal reservation, including the residential, economic development, and governmental needs of 

Indian tribes. See Arizona v. California, 373 U.S. 546, 599-601 (1963); Cappaert v. 

United States, 426 U.S. 128, 138 (1976); United States v. New Mexico, 438 U.S. 696, 

700 (1978); In Re The General Adjudication of All Rights To Use Water In The Gila 

River System and Source, 35 P.3d 68 (2001). Importantly, this type of Federal reserved water right ‘‘is superior to the rights of future appropriators.’’ Cappaert, 426 

U.S. at 138. 

For these reasons, the settlement of Pueblo water rights will include the amount 

of water necessary for the present and future homeland needs of each particular 

Pueblo. There will not be certainty for the junior water users, or a permanent solution for minnow water, until after the Pueblos’ senior Federal reserved water rights 

are settled in this manner. 

4. The current El Vado Reservoir storage and release policies and 

procedures are an important part of the problem. 

In 1928, Congress authorized and funded construction of a water delivery system 

to benefit Pueblo lands and non-Indian lands in the Rio Grande basin. This water 

delivery system was to be administered by the Middle Rio Grande Conservancy District (MRGCD). See 70 P.L. 169, 70 Cong. Ch 219, 45 Stat 312 (1928). 

As part of the construction authorization, Congress directed MRGCD to deliver 

part of the Pueblos’ water entitlement through the MRGCD water delivery system, 

and agreed to pay for the operation and maintenance costs associated with that part 

of MRGCD’s delivery system. In 1981, the United States and the Pueblos agreed to 

store in El Vado Reservoir sufficient water to sustain this part of the Pueblos’ water 

entitlement to be released for delivery through the MRGCD system. 

The Pueblo of San Felipe, however, is not receiving its full allocation of water that 

is required to be delivered to the Pueblo through the MRGCD water delivery system 

pursuant to the 1928 Act and the 1981 Storage and Release Agreement. The Bureau 

of Reclamation routinely violates the 1981 Storage and Release Agreement by making unauthorized releases of Pueblo water resulting in the use of Pueblo water by 

junior, non-Indian downstream users. Reclamation also is failing to store sufficient 

water under the 1981 Storage and Release Agreement. 

35

Further, the Pueblo is not presently using its full share of the native flow of the 

Rio Grande (and related groundwater) that the Pueblo is entitled to use for residential, commercial and governmental purposes. The Pueblo is not able to use its full 

allocation in large part because the water delivery system is in serious need of substantial improvements and repairs to allow adequate water delivery. 

Despite the illegal reduction in the amount of Pueblo water stored and released 

from El Vado Reservoir, and despite the Pueblo not using its full entitlement to native flow directly from the Rio Grande, the Department of Interior is now threatening to deprive the Pueblo of its senior Federal reserved water rights so that the 

junior municipal and non-Indian water users are spared from feeling the full impact 

of the current drought and silvery minnow water demands. 

The current water crisis must not be resolved at the expense of the Pueblos, in 

violation of Federal law. It is not fair or lawful for the United States to impose the 

burden of this drought and the silvery minnow water needs on the most senior 

water rights holders on the river. In accordance with well-established Federal law, 

delivery of native flow and stored water to the Pueblo must receive priority over the 

junior non-Indian native flow and storage delivery before Endangered Species Act 

limitations could or should be applied to the Pueblo’s senior Federal reserved water 

rights. This is consistent with the conclusions of the Department of Interior Working Group on the Endangered Species Act and Indian Water Rights that was formed 

to evaluate these issues in 1997. 

5. Federal law imposes trust duties of the highest standard on the United 

States that require the Department of Interior to take all actions necessary 

to protect and maintain Pueblo water rights. 

The United States Supreme Court has long held that, as the Pueblos’ trustee, the 

United States must act to ‘‘preserve and maintain trust assets,’’ using ‘‘reasonable 

care and skill to preserve trust property.’’ United States v. White Mountain Apache 

Tribe, 123 S.Ct 1126, 1133-34 (2003). See also United States v. Mitchell, 463 U.S. 

206 (1983). These trust duties require protection in circumstances such as ours 

where ‘‘water rights constitute the trust property’’ which the Federal government, 

as trustee, has the duty to preserve by performing ‘‘all acts necessary.’’ Fort Mojave 

Indian Tribe v. United States, 23 Cl. Ct. 417, 426(1991). Failure to comply with 

these Federal trust duties will result in a monetary award against the United 

States for breach of trust. 

As the Supreme Court recently explained, the United States’ Federal trust duties 

are substantial when the United States exercises direct control over tribal trust assets on a daily basis. In such circumstances, ‘‘a fiduciary actually administering 

trust property may not allow it to fall into ruin on his watch.’’ White Mountain 

Apache, 123 S.Ct. 1126, 1133. 

Because the Bureau of Reclamation exercises daily control over Pueblo water storage and release, Reclamation has a heightened trust duty to protect Pueblo water 

from waste and unauthorized use by junior users, including municipalities and nonIndian farmers. Additionally, the Department of Interior has the trust obligation to 

take the affirmative steps necessary to settle and permanently protect Pueblo water 

rights in a comprehensive manner. This will require substantial Federal funding, 

which must be provided to the Pueblos for this purpose. 

To date, the United States has entirely failed to provide the Pueblos with the 

funds necessary for the technical engineering work and legal services that will be 

necessary to settle Pueblo water rights in the Rio Grande basin. Significant and immediate funding will be necessary to move this process forward in a comprehensive 

manner aimed at finding permanent solutions to the Rio Grande water crisis. 

Additionally, the United States, acting through the Bureau of Reclamation, is 

breaching its Federal trust responsibility by failing to store sufficient Pueblo water 

in accordance with the 1928 Act and the 1981 Storage Agreement. Reclamation is 

also violating the 1981 Storage and Release Agreement by making unauthorized releases of Pueblo water resulting in the use of Pueblo water by junior, non-Indian 

users. Further, Reclamation is threatening to commit an even greater breach of its 

trust responsibility through its intention to use Pueblo water for minnow purposes 

if the junior users refuse to become ‘‘willing sellers.’’

Under well-established principles of Federal water law, Indian tribes and Pueblos 

in New Mexico hold senior, Federal reserved water rights that must be fulfilled before water is allocated to junior users such as municipalities and non-Indian farmers. Thus, even if the municipalities and non-Indian farmers had a contract right 

to receive Federal water in times of shortage (which they do not), that right would 

be junior to the right of the Pueblo to receive its Federally reserved senior water 

rights. In other words, Pueblo water rights must be fulfilled before the municipalities and non-Indian farmers are entitled to receive any contract water, or the native 

36

flow of the Rio Grande (including related groundwater), regardless of whether such 

junior users ‘‘agree’’ to become ‘‘willing sellers.’’

6. Our water and our entire way of life are bound together through our 

traditional farming practices. 

The Pueblo of San Felipe has a cherished name of Katishthya. This is the original 

name for the city. We call ourselves Katishthyame ́. Our homeland in its current location dates back to the 1400’s. Before that, we can name our ancestors as the people of Chaco, Mesa Verde, Bandelier. We are the first city builders in America. 

We were also the first in this land to develop our ancient water delivery systems, 

our traditional farming-based economy and closely related social structure. Our art 

and culture reflect our deep connection to our water, crops and lands. Our sophisticated system of traditional self-governance is necessary to administer and conserve 

the precious resources that the Creator has given us. It is this civilization—our 

civilization—that the anthropologists are constantly studying. We are repeatedly examined at the Smithsonian Institute. Universities and tourists from around the 

world come to study our homeland and our traditional way of life. 

All this examination and study leaves us to wonder when we will truly be understood or acknowledged as humans who have human needs. Our families need to eat. 

We need to teach our youth the ways of our people. Our community needs to 

celebrate and honor our land and our crops. None of this is possible if the Federal 

government continues to deny us our basic rights to water. 

One source of inspiration for our lives comes from the challenges of food production in the arid environment in which we live. It is a spiritual concept, this idea 

of being able to survive and using simple tools to work the land. It seems like only 

yesterday when the tribes lived without the impact of Europeans. This memory—

which is so close and still clear—makes us very unique in our concept of survival. 

The spiritual power of gratefulness has created beauty on our lands and a guarded 

presence each Katishthyame ́ possesses, as if our breath may be taken away at any 

moment. We place water on that same spiritual level. 

For a human to exist, that human needs water, food and, perhaps, shelter. But 

water is the number one need. For these many centuries we have survived. We have 

been prudent in our use of water, and we are grateful for the water provided to us 

by the Creator. But we are concerned about the survival of our crops and the future 

water needs of our children. We are farmers. Throughout history, our people have 

expressed the importance of our water and our crops in our traditions which can 

be seen by outsiders as designs in drawings, paintings, weavings, songs, dances, poetry and theatre, and basically in every aspect of our cultural heritage. 

These traditions are our cultural legacy. We share this immense cultural contribution with the United States, the State of New Mexico, the universities that study 

us, the institutes that examine us, and all of the tourists who experience the artistic 

and psychological impact of our traditional Pueblo way of life when they visit New 

Mexico. 

There is no corporate foundation or concept in our traditional farming. It is simply 

our way of life. Our farmers take great pride in providing well for their families, 

extended families, and the entire Pueblo community with our crops. Beyond food to 

eat, our Pueblo farmers often earn the basic necessities of life by selling produce 

to neighboring Pueblos or farmers markets, or through barter with other Pueblo 

families who will, in turn, share their goods as needed. This is how we often provide 

school clothes for our children, supplies for our artists, and non-food items essential 

to any household. 

Children work with their parents to assist with our traditional farming. The elders pass down stories and lessons related to our farming traditions and thus teach 

our youth how to grow and accept the responsibilities adulthood will bring. As with 

our crops, this circle of life feeds our traditions, and provides the foundation for our 

entire way of life. 

If our water is not protected, there will be no survival of these traditional practices. Children will not learn what they need to know from the elders. There will 

be no fresh produce for healthful eating. The farmers will have nothing to sell or 

trade for the non-food items that they need. Without water, a welfare state will be 

imposed on our traditional communities, and a rich culture dating back thousands 

of years will finally be extinguished. 

We will not stand by and watch this destruction occur. As our trustee, the United 

States must not continue to cause our water to be taken by others, and our water 

delivery systems to fall into ruin. The silvery minnow water crisis is just one part 

of a very complicated water shortage in the Middle Rio Grande. 

In order to avoid contentious and expensive litigation, the United States must 

diligently exercise its trust responsibility to protect and preserve our water rights. 

As discussed above, this will require significant and immediate Federal funding to 

37

the Pueblos for the permanent settlement and protection of our water rights. Additionally, the Department of Interior must stop the unauthorized releases of Pueblo 

water from El Vado Reservoir, and must store sufficient Pueblo water in accordance 

with the 1928 Act and the 1981 Storage and Release Agreement. 

There will not be certainty for the junior water users in the Middle Rio Grande—

or a permanent solution for the silvery minnow water crisis—until after the Pueblos’ 

senior Federal reserved water rights are fully settled and permanently protected. 

Until that time, the United States must not create temporary band-aids that illegally deprive the Pueblos of water that is critical to sustain Pueblo homelands and 

the traditional Pueblo way of life. 

The CHAIRMAN. I would like to now recognize Mr. John 

D’Antonio. 

STATEMENT OF JOHN D’ANTONIO,

NEW MEXICO STATE ENGINEER 

Mr. D’ANTONIO. Thank you, Mr. Chairman. Honorable Members 

of Congress, and water rights holders of New Mexico, and honored 

guests. 

Based on the request contained in your letter of August the 27th 

to Governor Bill Richardson, I offer the following remarks for presentation at the Committee’s oversight field hearing here in Belen, 

New Mexico. You specifically requested that the state present its 

views on the Tenth Circuit Court of Appeals ruling on Rio Grande 

Silvery Minnow versus Keys, et al., the impacts of the recovery 

process, how the ruling has affected New Mexico citizens, and the 

state’s historic role in funding and implementing silvery minnow 

recovery efforts. 

The ruling itself. From the legal analysis I’ve seen, I think it’s 

clear that this ruling goes far beyond previous cases because it allows the U.S. to seize water promised to others under perpetual 

contracts, contracts executed decades ago, which have been consistently honored to up to now, and upon which the users are critically 

dependent. Even the Ninth Circuit (which the Tenth Circuit said 

it was agreeing with) says that the U.S. can’t simply invalidate 

contracts unless the U.S. retained some discretion to act, such as 

renegotiation of the terms of a renewal contract. No such discretionary action occurred here—the court simply said that ESA needs 

prevail over the contract terms, and that’s wrong. 

Also, the idea that imported water, water that has caused no 

harm to the species, should be used first to potentially aid in its 

recovery seems absurd to us. And, if upheld, the ruling would have 

significant impacts in other river basins in the west where cities 

have grown dependent for their existing water needs on transbasin 

diversions. 

I’m also concerned that the Tenth Circuit reached a conclusion 

regarding the legislative authorization for the San Juan-Chama 

project which is contrary to a previous case result, which was the 

Jicarilla versus the U.S., which has been heavily relied upon by 

New Mexico and others, without arguing or overruling that case. 

That is an inadequate foundation for such a revolutionary and disruptive conclusion. 

Finally, I was dismayed that the court also justified its results 

on the basis of a questionable doctrine never raised or argued by 

any of the parties. To me, that’s fundamentally unfair. 

38

Most importantly, though, the court made its greatest error in 

finding that the Reclamation has discretion to seize water from its 

contractors. One thing that the ESA cases say almost uniformly is 

that the ESA did not add to the authorities already possessed by 

the Federal Government-- it merely required that those existing 

authorities be used in a way that would not jeopardize listed species. 

And I believe that we’re far beyond that here. Does anyone really 

believe that the, prior to the ESA the, Bureau of Reclamation had 

the right to seize water promised to others under perpetual contracts, even though it possessed no beneficial use water rights 

itself? That all its reservoir system supply contracts which municipalities, farmers and Indians relied upon were illusory? 

No, that’s not credible. And the Tenth Circuit ruling which says 

Reclamation did have the discretion is therefore not credible to me. 

New Mexico agrees strongly with the need and policy of protecting 

endangered species, but the heavy-handed approach of the Tenth 

Circuit will, I fear, will result in a backlash which will set the program back, not advance it. The way forward is by collaborative efforts, and I ask your support for a funding to continue those critical 

efforts. 

The impacts on the recovery process. The impacts have been profound and also confounding. Prior to the ruling, there was a sense 

among the affected parties of a real need to collaborate and reach 

a viable long-term solution that balanced the needs of water users 

and the minnow. With the ruling, my impression is that there is 

a sense of frustration and hopelessness-- an attitude of ‘‘what’s the 

point—the U.S. will take the water as needed, when needed, anyway.’’ That’s an extremely unfortunate result of the ruling, in my 

opinion. 

Technically, the Rio Grande Silvery Minnow Recovery Team has 

been reconstituted at the direction of Dale Hall, the regional director of the Fish and Wildlife Service. While we are happy to be 

members of that team, we’re concerned with the lack of progress 

and, in particular, believe it is critical that the revised Recovery 

Plan include realistic and measurable downlisting and delisting criteria for the fish... the lack of which, in our mind, is a significant 

shortcoming in the existing plan. 

As far as the effects on New Mexico citizens, the primary effects 

are those resulting from the uncertainty and risk produced by the 

ruling—neither farmers, nor municipalities, nor individuals, have 

any assurance of how much water they may get, or when. In water, 

uncertainty of the legal right to use is fatal to efficient markets, 

to mitigation of shortages, to the ability of farmers and other users 

to plan for the upcoming year, and to the preservation of its value. 

New Mexico’s historic role in the minnow recovery efforts, I’m 

pleased to report that New Mexico, acting through the Interstate 

Stream Commission and the Office of the State Engineer, has been 

a leader in finding innovative ways to provide upstream Rio 

Grande conservation pool storage and releases to preserve the silvery minnow. 

In 2001 the ISC obtained the first-ever State Engineer permit for 

maintenance of the silvery minnow’s habitat, based on an innovative method to use the state’s compact delivery flows. This action 

39

provided over 70,000 acre feet for the minnow. In 2003, the ISC arranged a compact credit relinquishment agreement with Texas 

which provides another 70,000 acre feet for the next 3 years for the 

minnow. 

With regard to river operations, we are heavily involved in dayto-day water management activities including aiding Fish and 

Wildlife Service in rescuing the minnow during the managed ramp 

downs of the river flows. I, with the ISC, have also warned that 

because of the longer-term reality of the hydrology of the Rio 

Grande is one of scarcity punctuated by floods and the 20 years 

prior to 1999 were quite wet in comparison to the preceding 30 

years, we are in need of river management options that take account of our continuing drought situation. New Mexico is conducting field characterization studies to better understand the 

interaction between surface water and groundwater in critical 

areas of the river so we can better manage the river. 

ISC has also been a leader in promotion cooperative and technical programs which will facilitate the long-term recovery of the 

minnow, not merely its preservation. Even before the silvery minnow lawsuit was filed, ISC convened and supported (with both staff 

and funding) the ESA Collaborative Program, a long-term funding 

and recovery program vehicle. ISC also conceived, implemented, 

and paid for the highly successful Silvery Minnow Natural 

Refugium. 

Moving forward, we believe significant and long-term funding of 

the Middle Rio Grande ESA Collaborative Program will be needed 

to implement the research, habitat restoration, and efficiency/forbearance projects that are needed. We have been surprised at how 

little is actually known about the needs of the fish and how we can 

implement projects that will help it recover. 

Research to address the needs of the fish has begun using 

workgroup funding and we eagerly await the results. In this regard, the non-Federal participants of the Program, at the request 

of Senator Domenici and Senator Bingaman, have developed Draft 

Authorizing Legislation for the Program and expect to submit the 

language to Senator Domenici in the near future. 

In sum, New Mexico has been at the forefront of all aspects of 

efforts to preserve and recover the silvery minnow, both in the 

refugia and in the wild. It began these efforts before the litigation 

even arose, and it has continued even during the difficult litigation. 

Finally, these results have been accomplished within the Law of 

the River while insuring that all water obtained has been provided 

from willing sellers. 

Thank you for this opportunity for providing testimony. 

The CHAIRMAN. Thank you. 

[The prepared statement of Mr. D’Antonio follows:]

Statement of John R. D’Antonio, Jr., P.E., New Mexico State Engineer,

Secretary, New Mexico Interstate Stream Commission 

Pursuant to the request contained in your letter of August 27, 2003 to Governor 

Bill Richardson, I offer the following remarks for presentation at the Committee’s 

oversight field hearing in Belen, New Mexico. You specifically requested that the 

state present its views on the 10th Circuit Court of Appeals ruling in Rio Grande 

Silvery Minnow v. Keys, et al., the impacts on the recovery process, how the ruling 

has affected New Mexico citizens, and the state’s historic role in funding and implementing silvery minnow recovery efforts. 

40

A. The Ruling itself. 

From the legal analyses I’ve seen, I think it is clear that this ruling goes far beyond previous cases because it allows the U.S. to seize water promised to others 

under perpetual contracts, contracts executed decades ago, which have been consistently honored to up to now, and upon which the users are critically dependent. Even 

the 9th Circuit (which the 10th Circuit said it was agreeing with) says the U.S. can’t 

simply invalidate contracts unless the U.S. retained some discretion to act, such as 

renegotiation of the terms of a renewal contract. No such discretionary action occurred here—the court simply said that ESA needs prevail over the contract terms, 

and that’s wrong. Also, the idea that imported water, water that has caused no 

harm to the species, should be used first to potentially aid in its recovery seems absurd to us. And, if upheld, the ruling could have significant impact in other river 

basins in the west where cities have grown dependent for their existing water needs 

on transbasin diversions. 

I am also concerned that the 10th Circuit reached a conclusion regarding the legislative authorization for the SJCP which is contrary to a previous case result, 

Jicarilla v. U.S., which has been heavily relied upon by New Mexico and others, 

without arguing or overruling that case. That is an inadequate foundation for such 

a revolutionary and disruptive conclusion. 

Finally, I was dismayed that the court also justified its result on the basis of a 

questionable doctrine never raised or argued by any of the parties. To me, that’s 

fundamentally unfair. 

Most importantly, though, the court made its greatest error in finding that Reclamation has discretion to seize water from its contractors. One thing the ESA cases 

say almost uniformly is that the ESA did not add to the authorities already possessed by the federal government—it merely required that those existing authorities 

be used in a way that would not jeopardize listed species. And I believe we’re far 

beyond that here. Does anyone really believe that, prior to the ESA, the Bureau of 

Reclamation had the right to seize water promised to others under perpetual contracts, even though it possessed no beneficial use water rights itself? That all its 

reservoir system supply contracts, which municipalities, farmers and Indians relied 

upon, were illusory? No, that’s not credible. And the Tenth Circuit ruling which says 

Reclamation did have that discretion is therefore not credible to me. New Mexico 

agrees strongly with the need and policy of protecting endangered species, but the 

heavy-handed approach of the Tenth Circuit will, I fear, result in a backlash which 

will set that program back, not advance it. The way forward is by collaborative efforts, and I ask your support for funding to continue those critical efforts. 

B. Impacts on the recovery process. 

The impacts on the recovery process have been profound and confounding. Prior 

to the ruling, there was a sense among the affected parties of a real need to collaborate and reach a viable long-term solution that balanced the needs of water users 

and the minnow. With the ruling, my impression is that there a sense of frustration 

and hopelessness—an attitude of ‘‘what’s the point—the U.S. will take the water as 

needed, when needed, anyway.’’ That is an extremely unfortunate result of the ruling, in my opinion. Technically, the RGSM Recovery Team has been reconstituted 

at the direction of Dale Hall, the regional director of the FWS. While we are happy 

to be members of that team, we are concerned with its lack of progress and, in particular, believe it is critical that the revised Recovery Plan include realistic and 

measurable downlisting and delisting criteria for the fish...the lack of which, in our 

mind, is a significant shortcoming in the existing plan. 

C. Effects on New Mexico citizens. 

The primary effects are those resulting from the uncertainty and risk produced 

by the ruling—neither farmers, nor municipalities, nor individuals, have any assurance of how much water they may get, or when. In water, uncertainty of the legal 

right to use is fatal to efficient markets, to mitigation of shortages, to the ability 

of farmers and other users to plan for the upcoming year, and to preservation of 

value. 

D. New Mexico’s historic role in minnow recovery efforts. 

I am pleased to be able to report to you that New Mexico, acting through the 

Interstate Stream Commission and the Office of the State Engineer, has been a 

leader in finding innovative ways to provide upstream Rio Grande conservation pool 

storage and releases to preserve the silvery minnow. In 2001, ISC obtained the firstever State Engineer permit for maintenance of the silvery minnow’s habitat, based 

upon an innovative method of use of the State’s compact delivery flows. This action 

provided over 70,000 AF for the minnow. In 2003, the ISC arranged a compact credVerDate 0ct 09 2002 09:11 Feb 06, 2004 Jkt 088533 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 J:\DOCS\89218.TXT HRESOUR1 PsN: KATHY
41

it relinquishment agreement with Texas which provides another 70,000 AF over 

three years for the minnow. 

With regard to river operations, we are heavily involved in day-to-day water management activities including aiding the Fish and Wildlife Service in rescuing RGSM 

during the managed ramp downs of river flows. I, with the ISC, have also warned 

that because the longer-term reality of the hydrology of the RG is one of scarcity 

punctuated by floods and that the 20 years prior to 1999 were quite wet in comparison to the preceding 30 years, we are in need of river management options that take 

account of our continuing drought situation. New Mexico is conducting field characterization studies to better understand the interaction between surface water and 

groundwater in critical areas of the river so that we can better manage the river 

ISC has also been a leader in promoting cooperative and technical programs 

which will facilitate the long-term recovery of the minnow, not merely its preservation. Even before the silvery minnow lawsuit was filed, ISC convened and supported 

(with both staff and funding) the ESA Collaborative Program, a long-term funding 

and recovery program vehicle. ISC also conceived, implemented, and paid for the 

highly-successful Silvery Minnow Natural Refugium. 

Moving forward, we believe significant and long-term funding of the MRG ESA 

Collaborative Program will be needed to implement the research, habitat restoration, and efficiency/forbearance projects that are needed. We have been surprised at 

how little is actually known about the needs of this fish and how we can implement 

projects that will help it recover. Research to address the needs of the fish has 

begun using workgroup funding and we eagerly await the results. In this regard, 

the non-federal participants of the Program, at the request of Senator Domenici and 

Senator Bingaman, have developed Draft Authorizing Legislation for the Program 

and expect to submit the language to Senator Domenici in the near future. 

In sum, New Mexico has been at the forefront of all aspects of efforts to preserve 

and recover the silvery minnow, both in refugia and in the wild, it began these efforts before the litigation even arose, and it has continued them even during that 

difficult litigation. Finally, these results have been accomplished within the Law of 

the River and while ensuring that all water obtained has been provided from willing 

sellers. 

Thank you for the opportunity to provide these remarks. I hope they are helpful 

and I will be glad to respond to any questions you may have. 

The CHAIRMAN. Ms. Alletta Belin. 

STATEMENT OF ALLETTA BELIN, NEW MEXICO COUNSEL, 

WESTERN RESOURCE ADVOCATES 

Ms. BELIN. Mr. Chairman, and members of the Committee, 

thank you for the invitation to participate in today’s hearing. My 

name is Alletta Belin and I represent the plaintiffs in the Rio 

Grande Silvery Minnow versus Keys litigation we’ve been talking 

about, and I’m going to address that lawsuit and its impacts on 

New Mexico. 

The silvery minnow was once one of the most abundant and 

widespread fishes in the Middle Rio Grande, originally inhabiting 

the Rio Grande all the way from Espanola down to the Gulf of 

Mexico and the Pecos River—about 3,000 miles of river. 

At times it was so abundant that the river literally turned silver 

with minnows. It is now the only one left of a family of four similar 

fish that once inhabited the Middle Rio Grande. In all, nearly onehalf of the native fish in the Middle Rio Grande area have either 

been extirpated from the Middle Rio Grande or gone extinct. 

By the time silvery minnow was listed as endangered in 1994, 

it had been reduced to 5 percent of its original historic range, and 

it remained only in the 160-mile stretch of river between Cochiti 

Dam and Elephant Butte Reservoir. 

The reasons cited by the U.S. Fish and Wildlife Service for its 

listing as endangered include the loss and fragmentation of aquatic 

42

habitat, the narrowing of the species’ range, and the impacts of irrigation withdrawals and the dewatering of the habitat. 

Since its 1994 listing, the silvery minnow population has continued to plummet. And I would refer you to the first two exhibits, 

I have in the graph in those exhibits, which depicts the further deterioration of the status of the minnow since 1994. 

To talk about the Tenth Circuit silvery minnow decision I must 

first mention the two Federal water projects that affect the flows 

in the Middle Rio Grande, and those are the Middle Rio Grande 

Project and the San Juan-Chama Project. 

The Middle Rio Grande Project, which was approved by Congress 

in 1948 and 1950, included a vast Federal overhaul and expansion 

of the dams and irrigation works of the then-bankrupt Middle Rio 

Grande Conservancy District, and authorized construction of major 

flood control and levy facilities in the Middle Rio Grande, including 

the Abiquiu and Cochiti Reservoirs. 

The San Juan-Chama Project, which was authorized by Congress 

in 1962, called for the construction of tunnels to transport water 

from the Colorado River Basin across the Continental Divide into 

the Rio Grande watershed, as well as construction of Heron Reservoir to hold the project water. The central idea behind this 

project was to offset past and future anticipated stream flow depletions in the Middle Rio Grande and to provide water for the future 

growth in the area. 

According to its own records, MRGCD serves about 170 full-time 

farms and 2000 part-time farms. About over 95 percent of the irrigation water is used for alfalfa and other forage. During the late 

1980’s and the 1990’s, MRGCD diverted, on average, over 11 acre 

feet of water per acre per year which, according to the State Engineer, is about two or more times more water than it is diverted by 

other irrigation districts in the state. 

The silvery minnow litigation arose after about 3 years of dialog 

among various stakeholders. That dialog began in 1996 after 

MRGCD water diversions had killed over half of the last remaining 

silvery minnows. Many people worked very hard over those 3 years 

to try to find collaborative solutions to the problems and to avoid 

court litigation. 

Unfortunately, the dialog didn’t produce real changes and the silvery minnow continued to decline. I believe that the events of the 

last few years clearly demonstrate that had we not filed the litigation, the silvery minnow would, for all intents and purposes, be extinct by now. 

Since the litigation was filed in late 1999, there have been many 

positive actions taken by many agencies and water users in the 

Middle Rio Grande. Some of these are reviewed in my written testimony, and I think that many of those actions, not all of them, but 

a lot of them came about because of the focus and incentives created by the litigation. 

As for the Tenth Circuit decision, some people have claimed that 

that decision is a Federal grab of individuals’ water rights. That’s 

not true. The Federal Government is involved in the Middle Rio 

Grande because it has funded and built dams, reservoirs, irrigation 

ditches, and levees throughout the Rio Grande, to the tune of hundreds of millions of dollars. 

43

All the water users in the Middle Rio Grande have benefited because of these massive Federal investments. MRGCD, for example, 

paid back (over 50 years, interest free) only a fraction of the money 

that the Federal Government invested in its irrigation and levee 

system through the Middle Rio Grande Project. Farmers got an excellent bargain from the Federal Government: Massive Federal dollars in return for Federal ownership and control over the irrigation 

system. 

The Tenth Circuit was right to hold that Federal water contracts 

must be interpreted in a manner consistent with the Endangered 

Species Act. A contrary interpretation would be a death warrant to 

most of the rivers in the western United States, including the Rio 

Grande. 

And I just, in response to some of the things that were said earlier today, I just wanted to point out that with the various court 

orders that have been issued in this case, no water has been taken 

by the Federal Government from anyone. All the water that’s been 

used for the silvery minnow has been sold or lent, and people selling that water have been paid for it. And the water shortages this 

summer that farmers are experiencing are a result of the drought, 

they are not the result of the silvery minnow. None of MRGCD’s 

water is being used or taken for the silvery minnow this summer. 

Albuquerque and other cities contracting for San Juan Chama 

water have plenty of options after the Tenth Circuit’s decision. If 

they believe that municipal water contracts should be given a different treatment under the Endangered Species Act and irrigators’ 

contracts, then the contracts should be revised and other measures 

should be adopted to protect endangered species from the effects of 

the water deliveries. 

And remember that less than 1 percent of Albuquerque’s water 

is used for drinking. Most of it is used for golf courses and landscaping. Cities can always choose to cut back on their water-guzzling amenities in order to leave some water for the river and the 

bosquet. 

I think there have been a lot of positive effects from the court 

decisions in this case. We have heard some of them this morning. 

I think one of the most positive effects of the Tenth Circuit opinion 

is that it has spurred intensive efforts to negotiate a collaborative 

solution to the problems on the Middle Rio Grande. The specifics 

of those negotiations, led by Governor Richardson, are confidential 

and I can’t talk about them, but I can say that I believe that no 

such negotiations would be taking place in the absence of the 

court’s opinion, and I certainly hope that they are successful. 

There have also been some substantial positive economic impacts 

on the Upper Rio Grande Basin and the Middle Rio Grande as a 

result of the efforts to protect the silvery minnow. I review those 

in my written testimony. 

I would refer you just to a recent study by an agricultural economist at NMSU, and another economist that found positive economic 

effects of flow requirements for the silvery minnow. And as Ms. 

Grevey Hillson mentioned earlier, the various recovery efforts to 

the tune of tens of millions of dollars have benefited not only the 

river and the minnow, but also our economy. 

Thank you very much again for the opportunity to speak. 

44

The CHAIRMAN. Thank you. 

[The prepared statement of Ms. Belin follows:]

Statement of Alletta Belin, New Mexico Counsel,

Western Resource Advocates 

Mr. Chairman and Members of the Committee, I appreciate your invitation to participate in today’s field hearing concerning the Rio Grande silvery minnow, the decision of the U.S. Court of Appeals for the Tenth Circuit in Rio Grande Silvery Minnow v. Keys, and their impacts on New Mexico. 

My name is Alletta Belin, and I represent the plaintiffs in that lawsuit. I will address the lawsuit and its impacts on our state. My testimony addresses the following 

points: • The valuable but declining state of the Middle Rio Grande ecosystem, and the 

perilous status of the Rio Grande silvery minnow, which is on the brink of extinction; • The overall importance and vulnerability of river ecosystems, including the 

many rivers in the western United States affected by federal water projects; • The history and purposes of the two federal water projects that operate in the 

Middle Rio Grande: the Middle Rio Grande Project and the San Juan-Chama 

Project; • The failure of agencies and water users to address the urgent problems in the 

Middle Rio Grande that led to a crisis and ultimately to the filing of Rio Grande 

Silvery Minnow v. Keys; • Developments in the lawsuit that spurred many minnow and river restoration 

efforts and led up to the Tenth Circuit opinion; • The meaning and implications of the Tenth Circuit opinion, which is consistent 

with similar rulings from the Ninth Circuit, and which creates incentives to 

solve the problems, while still allowing flexibility in how they are solved; • The positive economic effects of actions to protect the silvery minnow on the 

Middle Rio Grande and the rest of the Upper Rio Grande Basin. 

Background on the Middle Rio Grande and the Rio Grande Silvery Minnow 

The Middle Rio Grande, home to the last remaining population of the endangered 

Rio Grande silvery minnow, is a unique and critical stretch of river. Prior to human 

influence, the Middle Rio Grande was a perennially flowing river, with a braided 

channel that would migrate back and forth across the floodplain. It supported a 

dense cottonwood and willow forest, or ‘‘bosque,’’ which provided the habitat for a 

wealth of native and migrating bird and wildlife species. Flow levels in the river 

were seasonal, with greatest flows in the late spring during peak runoff from snow 

melt, and in mid to late summer from rain runoff. Reports from the first Spanish 

settlers of the sixteenth century paint a magnificent picture of the river: ‘‘[A] large 

and mighty river’’ that ‘‘flows through a broad valley planted with fields of maize 

and dotted with cottonwood groves’’ (Alvarado, 1540). . . ‘‘[A]long the river [near San 

Marcial] banks there were many cottonwood groves and some patches of white poplars four leagues [about 20 miles] wide’’ (Espejo, 1583) . . . ‘‘A deep river’’ and ‘‘the 

river with much water’’ (Castano de Sosa, 1590) . . . ‘‘[S]wift and beautiful, surrounded by numerous meadows and farms’’ (Obregon, late 1500’s). 

Even now, the Middle Rio Grande boasts the biggest intact stretch of native cottonwood-willow bosque left anywhere in the Southwest. But that bosque is deteriorating as the cottonwoods seeded in the 1940’s die without being replaced and nonnative species continue to invade. The Middle Rio Grande is also home to about twothirds of New Mexico’s six hundred wildlife species, but we are losing those species. 

Fourteen animal species in the Middle Rio Grande are on the state list of threatened and endangered species; two are on the federal list: the Rio Grande silvery 

minnow and the Southwestern willow flycatcher. These problems have been exacerbated by the current drought, and stand to get worse as the valley’s population increases and as Albuquerque commences using water from the Rio Grande for its 

water supply. 

The silvery minnow was once one of the most abundant and widespread fishes in 

the Middle Rio Grande, occurring in the Rio Grande from Espanola to the Gulf of 

Mexico and in the Pecos River. At times it was so abundant the river would literally 

turn silver with minnows. The silvery minnow is now the only remaining member 

of a suite of four endemic Rio Grande mainstream cyprinids that once inhabited the 

Middle Rio Grande. Of approximately seventeen fish species that were native to the 

Middle Rio Grande, at least seven have been extirpated or have become extinct 

(shovelnose sturgeon, American eel, speckled chub, Rio Grande shiner, phantom 

shiner, Rio Grande bluntnose shiner, blue catfish). 

45

The silvery minnow’s population has dropped precipitously in recent years. By 

1994, it was reduced to 5% of its historic range, and remained only in the stretch 

of the Rio Grande between Cochiti Dam and Elephant Butte Reservoir. In 1994, the 

U.S. Fish and Wildlife Service listed the Rio Grande silvery minnow as an ‘‘endangered’’ species. In determining to list the silvery minnow as endangered, the FWS 

cited the loss and fragmentation of aquatic habitat, the narrowing the species’ 

range, the impacts of irrigation withdrawals and dewatering of its habitat, and 

other factors. 

Since its 1994 listing, the silvery minnow population has continued to plummet. 

The most recent silvery minnow monitoring report prepared for the federal government found that by late 2002, the number of silvery minnows found in the river 

‘‘had declined to the lowest levels ever recorded.’’ (Dudley, Gottlieb & Platania, 2002 

Population Monitoring of Rio Grande Silvery Minnow, Hybognathus Amarus, Final 

Report,’’ (June 10, 2003), p.vi. (See Exhibit 1 attached hereto, excerpts of that report; Exhibit 2, graph showing decline of silvery minnow 1994-2002)). Like earlier 

monitoring studies, this report found the highest densities of silvery minnow in the 

lowest stretch of the Middle Rio Grande, between San Acacia Diversion Dam and 

Elephant Butte Reservoir. The lowest densities of silvery minnow were found above 

Isleta Dam, in the stretch of river that runs through Albuquerque. The 2002 Final 

Report concluded: 

The cumulative effects of years of river drying, downstream displacement, 

and habitat degradation continue to be manifested by the decline of the Rio 

Grande silvery minnow. The marked and alarming declines in abundance 

of Rio Grande silvery minnow recorded in 2002 during this population monitoring study provide the strongest evidence that the problems that led to 

the precipitous decline of this species have not been remedied. A renewed 

focus on issues that directly affect the immediate survival of this species 

in the wild is essential. Removal of instream barriers that prevent Rio 

Grande silvery minnow from repopulating upstream reaches, the need to 

maintain increased and variable flow throughout downstream reaches, and 

restoration and reconnection of the historical floodplain are paramount 

issues that need to be resolved to assure the continued persistence of this 

species. 

Id. 

The declines in the Middle Rio Grande ecosystem parallel declines experienced in 

rivers throughout the western United States affected by federal water projects. 

Freshwater ecosystems are critical to all life on earth; at least 12% of the world’s 

animal species inhabit freshwater environments. (Nature Conservancy, Freshwater 

Initiative (2002)). In the United States, approximately 303 fish species, or 37% of 

freshwater fish, are at risk of extinction, and at least seventeen species have already 

gone extinct. (Nature Conservancy, ‘‘The Declining Status of Freshwater Biodiversity and National and International Water Resources’’ (2002)). About 123 species of 

fish, mollusks, crayfish and amphibians in North America alone are extinct due to 

the building of dams, water pollution, and loss of wetlands. (Id.) As of 1993, in the 

seventeen western states, 68 fish species were listed as endangered and threatened, 

and ‘‘physical habitat alterations,’’ including water diversions, dams, reservoirs, 

channeling, and watershed disturbances, was the factor cited most frequently as 

contributing to the decline of these fish species. (Moore et al., ‘‘Water Allocation in 

the American West: Endangered Fish Versus Irrigated Agriculture,’’ 36 Nat. Resources J. 319 (1996)). As of 1995, 184 species that rely on habitat affected by federal water projects run by the Bureau of Reclamation were either listed or proposed 

for listing under the Endangered Species Act. (Id.) 

Rio Grande Silvery Minnow v. Keys 

Two federal water projects affect flows in the Middle Rio Grande: the Middle Rio 

Grande Project and the San Juan-Chama Project. The Middle Rio Grande Project, 

approved by Congress in 1948 and 1950, included a vast federal overhaul and expansion of the dams and irrigation works of the then-bankrupt Middle Rio Grande 

Conservancy District (MRGCD), and authorized construction of major flood control 

and levee facilities (e.g., Abiquiu and Cochiti Dams) in the Middle Rio Grande. The 

San Juan-Chama Project, authorized by Congress in 1962, called for construction of 

tunnels to transport water from the Colorado River watershed across the Continental Divide into the Rio Grande watershed, as well as construction of Heron Reservoir, on a tributary to the Rio Chama, to hold project water before it is released 

to entities contracting for the water. The central idea behind the San Juan-Chama 

Project was to offset past and future streamflow depletions in the Middle Rio 

Grande, and to provide water or the future growth of the area. The Project provides 

on average 96,200 a-f/year of transported water into the Rio Grande Basin. 

46

1During the drought of the past two years, and under pressure from this litigation, MRGCD 

has reduced its diversions to the neighborhood of 7.7 a-f/acre, an amount closer to (but still higher than) the amount diverted by other irrigation districts in the state. (See S.S. Papadopulos 

& Assoc., ‘‘Evaluation of the Middle Rio Grande Conservancy District Irrigation System and 

Measurement Program,’’ (December 2002) (prepared for the New Mexico Interstate Stream Commission)) 2 At that time, there were virtually no silvery minnows in captivity. The agreed orders entered 

in the litigation in the summer of 2000 set in motion various actions by the federal agencies 

and other parties to greatly increase captive populations of silvery minnow in an effort to ensure 

the existence of at least minimal remnant populations if river drying were to kill off substantial 

portions of the last silvery minnows remaining in the Rio Grande. It must be noted, however, 

that the ESA requires protection of species in their native habitat. 16 U.S.C. § 1531(b). While 

fish tanks might be used to help avoid extinction of a species, they are not a substitute for true 

conservation and recovery of a species. 

According to its own records, MRGCD serves about 170 full-time farms and 2,000 

part-time farms. Approximately 97% of the 50-55,000 acres irrigated in MRGCD are 

forage, i.e., alfalfa, hay, irrigated pasture, and silage or ensilage. Six pueblos lie 

within the boundaries of MRGCD and are served by its irrigation works. During the 

late 1980’s and 1990’s, MRGCD’s records indicate that it was diverting close to 

600,000 a-f/yr. of water—upwards of 11 a-f/acre/year. The State Engineer stated in 

2001 that reasonable beneficial use would probably amount to only about 7.2 a-f/

acre/year—about one-third less than MRGCD had been diverting. 1

In April 1996, MRGCD’s diversion of all the water in the Rio Grande at Isleta 

Dam killed many thousands of silvery minnow. FWS subsequently estimated that 

MRGCD’s actions at that time killed nearly half of the entire remaining population 

of silvery minnows. That disastrous kill-off of minnows gave rise to several years 

of dialogue among agencies, environmental groups, and other stakeholders about 

how river management might be changed to avoid future similar calamities and to 

ensure protection of the silvery minnow and the related river ecosystem. Unfortunately, while the debate was healthy and much information was exchanged, water 

management by federal and state agencies and MRGCD did not change in any significant respect. Minnow populations continued to spiral downward. The agencies’ 

minnow protection program was nothing more than a standing offer to buy any 

spare water that anyone offered to sell for the minnow. There was neither a shortterm nor a long-term program to protect or recover the silvery minnow and the 

habitat on which it depends. Moreover, there had never been any consultation between the Bureau of Reclamation, the Army Corps and the FWS to analyze what 

water operations actions could be taken to protect federally-listed species such as 

the silvery minnow, even though such consultation was required by the Endangered 

Species Act. 

Only after three years of discussions failed to change Middle Rio Grande water 

operations and address the problems of the silvery minnow did several environmental groups file the lawsuit against the Bureau of Reclamation and the Army 

Corps of Engineers known as Rio Grande Silvery Minnow v. Keys. Absent this litigation, there is every reason to believe that the silvery minnow would be extinct 

by now and the Middle Rio Grande river and bosque habitats would be far more 

degraded than they are today. 

Court-ordered mediation in the case during the drought summer of 2000 resulted 

in two agreed court orders that kept up flows in the river and avoided the anticipated river drying that would have wiped out the vast majority of remaining silvery 

minnows. At that time, upstream reservoirs were full to the brim and Albuquerque 

literally had no place to store water and no use for its San Juan-Chama Project 

water. Albuquerque was able to lend substantial amounts of water to the Bureau 

for the minnow that will be paid back in future years when Albuquerque most needs 

the water. In addition, the litigation and mediation caused the Bureau of Reclamation to initiate a number of other steps to aid the minnow and river flows, such as 

pumping water from the Low Flow Conveyance Channel back to the river. As a result, the silvery minnow survived that drought summer. 2

Numerous developments grew out of the litigation over the next two years, including entry of a Conservation Water Agreement between the State and the United 

States that provided for storage of up to 100,000 a-f of water to be used for the minnow over a three year period, and issuance of a Biological Opinion by FWS on June 

29, 2001, that allowed for significant drying of portions of the Middle Rio Grande 

containing the last viable silvery minnow populations. 

In late 2002, another drought year, the Bureau of Reclamation announced that 

it would be unable to comply with the minimum river flows required by the June 

29th BO. Once again faced with the prospect of massive drying of the only parts 

of the Rio Grande harboring the last silvery minnows, plaintiffs went back to court 

47

to seek release of a limited amount of San Juan-Chama Project water from Heron 

Reservoir to comply with the BO. Unfortunately, by the time plaintiffs were informed of the anticipated BO violation, MRGCD had used up all of its stored water 

and thus could not help to comply with the BO. Virtually the only water available 

to bring about compliance was the water in Heron Reservoir. Chief U.S. District 

Judge James Parker ruled in the plaintiffs’ favor, although in order to limit the 

amount of water to be released, he allowed the U.S. to meet lower flow levels than 

those required by the BO. This court order, as well as an order issued several 

months earlier, triggered the appeal to the Tenth Circuit that resulted in the 

June 12, 2003 Tenth Circuit decision in Rio Grande Silvery Minnow v. Keys. 

Tenth Circuit Opinion 

In the view of the plaintiffs, the Tenth Circuit ruling in Rio Grande Silvery Minnow v. Keys is not significantly different from the Ninth Circuit rulings in O’Neill 

v. U.S., 50 F.3d 677 (9th Cir. 1995); NRDC v. Houston, 146 F.3d 1118 (9th Cir. 

1998); and Klamath Water Users Protective Assn. v. Patterson, 204 F.3d 1206 (9th 

Cir. 2000). It is not a radical proposition to hold that federal water contracts must 

be interpreted in a manner consistent with the ESA. Indeed, in the plaintiffs’ view, 

it would be a dramatic roll-back of the ESA to hold the contrary: that federal water 

contracts should be given a narrow interpretation that excludes the possibility of 

managing water to avoid jeopardy to listed species when possible. Such an interpretation would not only be a radical departure from current federal law. It would also 

be a death warrant for our western rivers and the freshwater ecosystems which they 

support—almost all of which are greatly affected by federal water projects run by 

the Bureau of Reclamation and the Army Corps of Engineers. 

The main thing that differentiates this case from the earlier Ninth Circuit cases 

is that it concerns, in part, federal water that is contracted to municipalities for 

public water supplies. Unlike irrigators, who generally are used to living with significant variations in their water supply, municipalities want to be able to count on 

a constant supply. Although municipalities’ water needs are different from farmers’ 

water needs, their federal water contracts (at least the municipal San Juan-Chama 

Project contracts) are not materially different from farmers’ federal water contracts. 

Hence, unless and until municipal water contracts are drafted differently, we believe it is unlikely that courts will find a rationale to treat cities’ water contracts 

differently from irrigation districts’ water contracts. 

If it is the consensus among the federal government, water users, and the public 

that municipal contracts for water from federal projects should be given different 

treatment vis-a ́-vis the ESA than irrigators’ contracts, then the contracts should be 

revised and other measures should be adopted to protect listed species from the effects of the water deliveries. Reversing the Tenth Circuit’s holding by way of backroom appropriations riders that are strongly opposed by important stakeholders and 

that never receive any public scrutiny or congressional debate does not serve the 

full panoply of public interests at stake in this case. 

Some people have claimed that the Tenth Circuit’s decision is a federal grab of 

individuals’ water rights. This is not true. The federal government is involved in the 

Rio Grande because it has funded and built dams, reservoirs, irrigation ditches, and 

levees throughout the Rio Grande, to the tune of hundreds of millions of dollars. 

All water users in the Middle Rio Grande have benefitted from these massive federal investments. MRGCD, for example, paid back (over 50 years, interest-free) only 

a fraction of the money that the federal government invested in its irrigation and 

levee system through the Middle Rio Grande Project. Farmers got an excellent bargain from the federal government: massive federal dollars in return for federal ownership and control over the irrigation system. 

By the same token, those entities that entered into contracts with the federal government for San Juan-Chama Project water didn’t get an absolute guarantee that 

a set amount of water would be delivered every year, no matter what. There is no 

way the federal government would or should have provided such a carte blanche 

promise. Rather, they got only what the contracts provided: a promise that water 

would be provided to the extent available and consistent with federal law—including 

the ESA. 

There is nothing fundamentally wrong with how the ESA has been applied to 

water management on the Middle Rio Grande or on other rivers in New Mexico and 

around the west. In most instances, the ESA is applying, adjustments are being 

made, and problems are being solved without overwhelming obstacles. Indeed, there 

are many success stories around the west where application of the ESA has brought 

rivers and fisheries back from the brink of death, to the great benefit not only of 

the species but also of the people in the area. In many of the rivers in California’s 

Central Valley, for example, salmon runs have rebounded from mere handfuls to 

48

tens of thousands. These rivers would be barren and dead if the ESA had not been 

applied just as the Tenth Circuit is applying it to the Rio Grande. 

Many of the proposals to ‘‘fix’’ how the ESA applies to water management would 

result in the death of our rivers. We must be careful in the areas where it is particularly difficult to mesh the ESA with meeting people’s water needs, to craft solutions that do not simply throw out the ESA and kill our rivers. 

In those few instances that pose particularly difficult problems, such as the Middle Rio Grande, court decisions won’t fix the problems, nor will quick congressional 

ESA exemptions. The only lasting solution will come when the parties come together 

and collaborate to solve the problems in a way that meaningfully implements the 

ESA. 

Efforts to Collaborate To Protect the Silvery Minnow and the Rio Grande 

One of the most positive effects of the Tenth Circuit opinion is that it has spurred 

intensive efforts to negotiate a collaborative solution to the problems on the Middle 

Rio Grande. The specifics of those negotiations, led by Governor Richardson, are 

confidential. We can point out, however, our firm belief that no such negotiations 

would be taking place in the absence of the court’s opinion. Rather, in all likelihood, 

the agencies and water users would simply throw their hands up and declare, just 

as they did a year ago, that they were unable to comply with the BO and unable 

to preserve the silvery minnow. Without a court opinion creating incentives to come 

up with creative solutions, and with no adverse consequences stemming from a failure to protect the silvery minnow, the river would inevitably dry up and die, taking 

much of the bosque with it. It would not be long before the Middle Rio Grande 

turned into the barren dry ditch that we see further downstream, where the Rio 

Grande used to flow through El Paso. 

Economic Effects of the Endangered Species Act on the Upper Rio Grande Basin 

Earlier this year, economists from New Mexico State University and Siena College 

in New York released a study on the economic effects of water releases for the silvery minnow. (See Exhibit 3 attached hereto; excerpts from Frank A. Ward and 

James F. Booker, ‘‘Economic Costs and Benefits of Instream Flow Protection For Endangered Species in an International Basin’’ (2003). The economists examined the 

effects of implementing minimum flow requirements for the silvery minnow in the 

Middle Rio Grande that are higher than the minimum flows required by the most 

recent Biological Opinion issued by FWS in March, 2003. They found that 

‘‘[p]rotecting instream flows for the silvery minnow produces positive market economic benefits for agriculture and M&I uses of water for the upper Rio Grande 

Basin.’’ (Id., p.17). They estimated the overall economic benefit to the New Mexico/

Texas area of instream flows for silvery minnow protection to total over 

$1.5 million/yr. ($1,522,000). Specifically, they determined that New Mexico agriculture would receive economic benefits in the amount of $68,000/year, while New 

Mexico M&I uses would lose benefits amounting to $24,000/year, for a net overall 

benefit to New Mexico of $44,000/yr. Texas agriculture would receive $203,000/yr. 

of economic benefit, and Texas M&I users would gain $1,275,000/yr, for an overall 

gain to Texas of $1,478,000/year. 

Moreover, these estimates of positive economic impacts from increased flows do 

not even account for the benefits—both economic and other—to the State that have 

resulted from the Rio Grande Compact delivery credits coming from those increased 

flows. Those credits have been especially valuable since Article VII of the Rio 

Grande Compact went into effect and storage of native water would not have been 

possible absent relinquishment of Compact credits. 

In addition to these projected economic impacts resulting from increased river 

flows for the silvery minnow, there have been other positive economic impacts on 

the region from efforts to restore the silvery minnow and its river habitat. Federal 

funding (together with state and local cost-shares) of river restoration and minnow 

protection efforts over the past several years has injected in the neighborhood of $30 

million into the regional economy. The State of New Mexico and various other governmental entities have also provided significant amounts of additional funding in 

furtherance of protection of the minnow, the river, and the bosque. This funding has 

not only benefitted our economy, it has benefitted the river. There are currently over 

fifty restoration projects in the Middle Rio Grande that are ongoing or in planning 

stages that are funded or sponsored by federal, state and local governments and 

other entities. (Tetra Tech, Inc./Alliance for the Rio Grande Heritage, A Framework 

for a Restoration Vision for the Rio Grande: Hope for a Living River (May 2003), 

App. D). 

49

Impacts of the Tenth Circuit Ruling on Albuquerque and Other Municipal San JuanChama Contractors 

The Tenth Circuit decision has provided a common sense interpretation of the 

terms of the contract that Albuquerque entered into with the United States regarding provision of 48,200 a-f/yr. of San Juan-Chama Project water to Albuquerque, 

when such water is legally available. For Albuquerque to leap to the assumption 

that its contract was a perpetual guarantee for 48,200 a-f of water every single year 

forever more, regardless of the circumstances and regardless of the language of its 

contract, was simply wishful thinking. 

In any event, Albuquerque (and other San Juan-Chama contractors) has several 

options for alleviating the uncertainties in its current contract. It can renegotiate 

its San Juan-Chama contract with the United States to provide greater certainty. 

It can also seek congressional action to provide the level of certainty desired in its 

water contract. Or, it could live with the terms of its contract, with the assurance 

that the federal government cannot take large amounts of San Juan-Chama Project 

water to use for the minnow because the San Juan-Chama authorizing legislation 

expressly requires that ‘‘a reasonable amount’’ of water be delivered to contractors. 

A recent poll conducted by University of New Mexico’s Institute for Public Policy 

found that people ranked use of water for the Rio Grande and riparian areas second 

only to water for drinking and bathing in importance. Less than 1% of Albuquerque’s San Juan-Chama water will be used for drinking. Most of it will be used for 

outdoor watering of golf courses, turf and other water-guzzling amenities. Thus, if 

any San Juan-Chama water were ever to be taken by the federal government and 

used for the minnow under the Tenth Circuit’s opinion—which would only happen 

if the New Mexico stakeholders were unable to solve these problems themselves—

it would not affect anyone’s drinking water. Rather, it would be in essence a reallocation of water from golf courses and non-native lawns to endangered species, 

and the river and bosque on which they depend. Such a result would be consistent 

with the purpose of the Endangered Species Act. It would also be a proper response 

to the warning of the impending demise of our river that is being given by our ‘‘canary in the coal mine’’—the Rio Grande silvery minnow. 

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89218.005 89218.006
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1 30,000 additional a-f was made available to the federal government by the City of Albuquerque in the October 5, 2000, Supplemental Agreed Order but was not used because it was 

not needed, and 36,000 a-f of water was provided under the August 2, 2000, Agreed Order to 

MRGCD for irrigation. 

Statement submitted for the record by Alletta Belin,

New Mexico Counsel, Western Resource Advocates 

In response to Chairman Pombo’s statement that the written record would be 

open for ten days following the September 6, 2003, field hearing on the impacts of 

the Rio Grande silvery minnow, I submit this additional testimony to correct some 

erroneous statements that were made at the hearing. 

1. It was stated that at least one farmer lost at least 30% of his crops this year 

due to the Tenth Circuit’s ruling in Rio Grande Silvery Minnow v. Keys. This 

is not true. No farmer has lost crops this year due to water reductions resulting from the court ruling. The Middle Rio Grande Conservancy District’s irrigation season has been cut short by drought—not by actions taken by the federal 

government in response to the court ruling. In fact, MRGCD has voluntarily 

contributed about 3100 a-f to the minnow this year, which is only enough 

water to provide a few days of irrigation. I invite the Committee to confirm this 

fact by consulting with the Bureau of Reclamation. 

2. It was stated that the Tenth Circuit released fifty years’ worth of water from 

reservoirs in one year for the minnow. This also has absolutely no basis in fact. 

I assume that the speaker was talking about the year 2000—the year in which 

the most water was released to keep the silvery minnow from extinction. In 

that year, the federal government purchased and used approximately 144,900 

a-f of water for the minnow. 1 About 70,000 a-f was purchased and used by the 

federal government before court-ordered mediation in Rio Grande Silvery Minnow v. Keys took place, and 74,900 was purchased and released as a result of 

two agreed orders that resulted from the mediation. (See August 2, 2000, 

Agreed Order and October 5, 2000, Supplemental Agreed Order in Rio Grande 

Silvery Minnow v. Keys, Civ. No. 99-1320-JP/LAM.) Thus, the total amount of 

water released in 2000 for the silvery minnow was about 145,000 a-f. Virtually 

all of this water was San Juan-Chama water that was not needed by the water 

users and contractors at that time. Since 96,200 a-f/yr. of San Juan-Chama 

Project water is available for use in New Mexico, that means that about one 

and one-half years’ worth of San Juan-Chama Project water was used in 

2000—not fifty years’ worth of water under any measure. 

Thank you very much for the opportunity to testify before your committee on the 

impacts of the Rio Grande silvery minnow on New Mexico. 

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The CHAIRMAN. I’d like to now recognize Mr. Tom Wesche. 

STATEMENT OF TOM WESCHE, BIOLOGIST,

HABITECH, INC., LARAMIE, WYOMING 

Mr. WESCHE. Good morning, Mr. Chairman, Honorable Committee Members. I appreciate the opportunity to testify before you 

this morning concerning Rio Grande silvery minnow issues in New 

Mexico. Since 1999 I have served as a fisheries consultant for the 

Middle Rio Grande Conservancy District on issues pertaining to 

the minnow. In this capacity I served as a member of the Collaborative Program’s Science Subcommittee. 

In my letter of invitation I was asked to address several matters, 

including my views on the Tenth Circuit Court’s ruling, the need 

for a additional flows to benefit the minnow, the underlying role of 

science in the recovery process, and the role of habitat enhancements and monitoring in this process. 


89218.012
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As the first two issues are closely related, allow me to address 

them jointly. It is my understanding that the Tenth Circuit’s ruling 

permits the Bureau of Reclamation, acting under the ESA, to reduce contract deliveries of non-native San Juan-Chama water and 

use that water for the benefit of the silvery minnow. 

In essence, this ruling supports the notion that more water is 

necessary to conserve the minnow and that by simply releasing 

more from storage, no matter the source or the probability of future 

supply, the species will be protected. I disagree with this viewpoint 

and submit that history does not support the assertion that river 

drying can reduced flows of the principal causes for the current status of the silvery minnow. 

Over the past 50 plus years, while minnow numbers have apparently been decimated, river flows have been substantially augmented and the number of zero-flow days substantially reduced. 

Such facts lead me to conclude a strategy of simply releasing copious amounts of water down the Middle Rio Grande channel to benefit the silvery minnow has failed. 

Our critically low water supply levels dictate such wasteful practices be discontinued in favor of a more holistic approach such as 

that mandated by the Biological Opinion. This approach recognizes 

the hydrologic reality of the Middle Rio Grande, that river drying 

has occurred historically and will continue in the future, that priority life functions such as spawning must be protected first when 

water supply is short, that management priority must be given to 

those river reaches where flow can be provided most efficiently 

while maintaining other legitimate water uses, that refugia, hatcheries, and other sanctuaries are necessary, and that multiple factors, such as habitat degradation, passage barriers, and predation 

and competition have contributed substantially to the decline of the 

species. 

I am encouraged by this approach and hopeful we can now move 

past the single, divisive issue of ‘‘keeping the river wet’’ at all cost 

and on to the important business of conserving the minnow. To this 

end, I am supportive of the current Biological Opinion and legislation such as that being sponsored by Congressman Pearce and 

H.R. 2603 which provides a positive solution to the problems created by the Tenth Circuit’s decision. 

Regarding the role of science in the recovery process, let me simply say ‘‘science’’ and the application of the ‘‘scientific method’’ is 

the critical underpinning of the entire recovery process. Complex 

problems require complex solutions, and science provides the 

framework within which such complex solutions will be crafted for 

the Middle Rio Grande. 

Concerning the role of appropriate habitat enhancements, I’m of 

the opinion that the physical habitat of the Middle Rio Grande is 

severely degraded and recovery of the silvery minnow is questionable at best unless river-wide habitat enhancement measures are 

implemented. Flow-based solutions alone will not return habitat for 

the minnow. Well-conceived, designed and implemented habitat enhancement measures are needed to re-connect the river with its 

floodplain, widen the channel to promote diversity, and increase 

complexity. These are high priority measures needed immediately 

if silvery minnow recovery is to proceed. 

60

Finally, monitoring of the silvery minnow population is an important component of the recovery effort. A river-wide, representative, 

statistically valid sampling program yielding quantitative results is 

necessary to document baseline conditions, teach us about the temporal and spatial distribution of the species, measure program successes and failures, and chart our progress toward established recovery targets. The Science Subcommittee has spent considerable 

time debating this matter I am confident that through these discussions, input from expert peer reviewers, and perhaps some finetuning, the resulting monitoring efforts will meet the needs of the 

program. 

The CHAIRMAN. Thank you. 

[The prepared statement of Mr. Wesche follows:]

Statement of Thomas A. Wesche, Principal Scientist and Professor 

Emeritus, HabiTech Inc. and University of Wyoming, representing Middle 

Rio Grande Conservancy District 

My name is Thomas A. Wesche. I appreciate the opportunity to testify before you 

on matters concerning the Rio Grande silvery minnow (RGSM) in New Mexico. My 

resume is attached for your review. To summarize, I am presently the Principal Scientist for HabiTech Inc. and Professor Emeritus of Water Resources at the University of Wyoming. I have over 30 years professional experience in the western United 

States, including the desert southwest, as a fisheries scientist and surface water hydrologist, specializing in the evaluation and restoration of degraded river systems, 

the habitat requirements of various fish species, and the determination of suitable 

instream flow regimes to protect and restore aquatic ecosystems. In New Mexico, 

I have served as a member of the Biology Committee for the San Juan River Recovery Implementation Program since the mid-1990’s and as a consultant for the Middle Rio Grande Conservancy District since 1999 on issues concerning the RGSM. In 

this latter capacity, I serve as a Delegate to the Middle Rio Grande Endangered 

Species Act Collaborative Program (MRGESACP) Science Subcommittee and a member of the San Acacia Fish Passage Workgroup and the newly formed RGSM entrainment ad hoc group. Also, I have conducted research on physical barriers to 

RGSM passage and am currently initiating projects to restore RGSM habitat using 

large woody debris and quantify hydrologic alteration along the middle Rio Grande. 

In my letter of invitation, I was asked to address several matters in my testimony. These include my views on 1) the 10th Circuit Court’s ruling on Rio Grande 

Silvery Minnow, et al. vs. John W. Keys, III, et al.; 2) the need for additional flows 

to benefit the silvery minnow; 3) the underlying role of science in the silvery minnow recovery process; and, 4) the role of appropriate habitat enhancements and improved monitoring measures in the recovery process. Following are my opinions on 

these issues. 

As my views on issues 1 and 2 are strongly intertwined, allow me to address them 

collectively from a scientific, not a legal, perspective. It is my understanding that 

the 10th Circuit Court’s ruling permits the Bureau of Reclamation, acting under the 

ESA, to reduce contract deliveries of non-native San Juan-Chama water and use 

that water for the benefit of the silvery minnow. In essence, this ruling supports 

the notion that more water is necessary to conserve the silvery minnow and that 

by simply releasing more from storage, no matter the source or the probability of 

future supply, the species will be protected. I disagree with this viewpoint and continue to argue, as I have for the past several years, that history does not support 

the assertion that intermittency, river drying, and reduced flows are the principal 

causes for the current status of the silvery minnow. For example, if we compare the 

San Marcial stream flow record for the 1950 to 1972 period with that for the 1973 

to 1999 period, we find that mean monthly flows are substantially higher during 

every month of the year and the occurrence of zero-flow days substantially lower 

during the more recent period, when minnow numbers have apparently declined 

sharply. Likewise, comparison of similar time periods using the Albuquerque stream 

flow record results in similar findings. While silvery minnow have apparently declined, river flows have been substantially augmented and the number of zero-flow 

days reduced. Hydrologic facts such as these, coupled with the more recent unsuccessful flow augmentation efforts to maintain or enhance minnow numbers, lead me 

to conclude the strategy of simply releasing copious amounts of water down the middle Rio Grande channel to benefit the silvery minnow has failed. Our critically low 

61

water supply levels dictate such wasteful practices be discontinued in favor of the 

more holistic approach mandated by the current Biological Opinion, and now being 

implemented by the MRGESACP. The single Reasonable and Prudent Alternative 

recognizes 1) the hydrologic reality of the middle Rio Grande by differentiating 

stream flow prescriptions between dry, normal and wet years, 2) that river drying 

has occurred historically and will continue in the future, 3) that priority life functions such as silvery minnow reproduction must be protected first when water supply is short, 4) that management priority must be given to those river reaches (such 

as the Albuquerque reach) where flow can be provided most effectively and efficiently, while maintaining other necessary, and legitimate, water uses, 5) refugia, 

hatcheries, and other types of sanctuaries are necessary, at least in the shorter 

term, to protect and conserve the species, and 6) multiple factors, such as physical 

habitat degradation, poor water quality, passage barriers, and predation and competition from native and non-native species alike, have likely contributed substantially to the decline of the silvery minnow. I am encouraged by this holistic approach 

and hopeful we can now move past the single, divisive issue of ‘‘keeping the river 

wet’’ at all cost and on to the important business of conserving the Rio Grande silvery minnow. To this end, I am supportive of the current Biological Opinion and 

of legislation such as that being sponsored by Congressman Pearce in H.R. 2603 

which provides a positive solution to the problems created by the 10th Circuit Court 

decision. 

The third issue I was asked to address relates to the underlying role of science 

in the silvery minnow recovery process. Let me begin by simply saying that in my 

opinion, ‘‘science’’, and the application of the ‘‘scientific method’’, is the critical underpinning of the entire recovery process. As you may recall from junior high science 

class, the steps in applying the ‘‘scientific method’’ are quite simply stated: 1) observe a phenomenon; 2) develop a hypothesis to explain the phenomenon; 3) design 

an experiment to test your hypothesis; 4) gather your data; 5) analyze your data; 

and, 6) accept or reject your hypothesis based upon the conclusions drawn. On 

paper, it sounds pretty simple. In practice, it usually isn’t, especially within the 

framework of a collaborative program composed of numerous signatory agencies and 

groups, all with diverse and often competing missions, trying to conserve a minuscule biological organism about which we know precious little that lives in a highly 

complex river system about which we also know precious little. Given such a scenario, how does one even attempt to proceed? Well, to avoid total chaos and hopefully to begin to make progress, we fall back, often perhaps without even knowing 

it, on the framework provided by the scientific method. We begin the slow, often agonizing and confrontational process of trying to work our way through those six 

steps. At the start, can we even agree on the phenomenon (e.g. silvery minnow are 

scarce), let alone on the hypotheses to attempt to explain why (e.g. water is in short 

supply, habitat is degraded)? Each step of the way is fraught with disagreement, 

mistrust, argument, and the like, as we attempt to identify probable limiting factors 

and ways to address them. Eventually though, with the help of outside peer reviewers and the clearer thinking that hopefully results from perhaps heated yet productive scientific debate and experimentation, management actions are implemented, 

monitored and evaluated leading to progress toward recovery. Unsuccessful treatments and prescriptions will be discarded or modified, while successful efforts will 

be documented and duplicated elsewhere. From my perspective, the MRGESACP is 

still in the early stages of this process. We are attempting to define complex phenomena with the short-term and incomplete data sets that we have in hand, our 

hypotheses are still somewhat fuzzy and untested, and our ability to draw conclusions is tenuous at best. Complex problems typically require complex solutions. 

Science and the scientific method provide the framework within which such complex 

solutions will be crafted for the middle Rio Grande. 

The final issue I was asked to address concerns the role of appropriate habitat 

enhancements and improved monitoring measures in the recovery process. Over the 

past several years, I have had the opportunity to conduct four aerial reconnaissance 

flights over the middle Rio Grande through the designated critical habitat and have 

spent numerous days in the field observing habitat conditions. Based upon these observations, my review of historic records and documents, and my experience with 

degraded river systems throughout the western U. S., I am of the opinion that the 

physical habitat of the middle Rio Grande is severely degraded and recovery of the 

silvery minnow is questionable at best unless river-wide habitat enhancement measures are implemented. In its present condition, much of the river is narrower, deeper, and swifter than it was historically. Habitat diversity has been substantially reduced, secondary channels have been cut-off from the main channel and lost, substrate coarsening has occurred with gravels and cobbles replacing silts and sands 

in many locations, and important elements of structural complexity, such as large 

62

woody debris, have been flushed from the system without replacement. The result 

is a substantial reduction in habitat quantity and quality for the silvery minnow. 

Stream flow-based solutions alone will not return habitat for the silvery minnow to 

the middle Rio Grande. Well-conceived, designed and implemented habitat enhancement measures, such as those described in the Biological Opinion and now being 

implemented by the Bureau of Reclamation and others, are needed to re-connect the 

river with its floodplain, widen the channel to promote habitat diversity, and increase overall complexity. These are high priority measures needed immediately if 

silvery minnow recovery is to proceed. 

Monitoring of the silvery minnow population is an important component of the recovery effort. A river-wide, representative, statistically valid sampling program 

yielding quantitative results is necessary to document baseline conditions, teach us 

more about the temporal and spatial distribution of the endangered species as well 

as the other members of the fish community, measure program successes and failures, and chart our progress toward established recovery targets. We need to be certain that our monitoring 1) is sampling habitats throughout the middle Rio Grande 

in proportion to their availability, 2) using appropriate fish collection methods, procedures and gear for all habitat types present within the river, 3) has a sampling 

frequency sufficient to detect seasonal distribution shifts but not so repetitive that 

undue sampling mortality and species behavior modifications occur, 4) is thoroughly 

documented and reproducible, and 5) is producing quantitative results of sufficient 

statistical rigor to allow valid temporal and spatial comparisons to be made and 

progress toward recovery to be documented. Over the past year, the Science Subcommittee of the MRGESACP has spent considerable time debating this matter. I 

am confidant that through these discussions, input from expert peer reviewers, and 

perhaps some fine-tuning, the resultant monitoring effort will meet the needs of the 

Program. 

This concludes my written testimony. 

[Mr. Wesche’s response to questions submitted for the record 

follows:]

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The CHAIRMAN. We’re now going to turn to the members for 

questions, and I remind the members that we are limited to 5 minutes to question as well. 

We have basically two separate issues that we’ve heard testimony on this morning, one deals with the water and who owns the 

water, and as Congressman Pearce talked about in the Fifth 

Amendment to the Constitution, ‘‘nor shall private property be 

taken for public use without just compensation.’’ And we have a 

question as to who owns the water, and if the water is taken, who 

should be compensated for that. Several of the water users that 

have testified, several that we have heard from in letters and in 

e-mails to the Committee, have dealt with the need for there to be 

some kind of compensation in terms of water that is taken. 

The other question that is in front of us I think deals with the 

minnow itself, you know, is it endangered? If it is, how do we recover it? What is critical habitat? And those are two very separate 

issues, even though they all fall under the Endangered Species Act. 

I’ll tell you, under the way that the law is currently being implemented they have established the right to take private property to 

enforce the Endangered Species Act. And that’s what’s going on, 

not just here in New Mexico, but all over the country, whether it’s 

private property, or water rights, or what have you. 

There has been a history in recent years of them being able to 

take control over the private property in order to enforce the act. 

And my argument has always been that if they are going to take 

private property you should be compensated for that private property. But, you know, that is an issue that Congress has debated 

and continues to struggle over, as how we deal with that particular 

issue. 

On the question of the minnow, and I’d like to turn to Dr. 

Wesche if I can. We hear that, from you, that this may not be, the 

decisions that are being made right now may not be the best way 

of recovering the species, that there may be a better way of going 

into this. And I know that you’ve been very involved with this, but 

can you explain to me a little bit more about what, what response 


89218.015
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you’ve gotten from the Federal agencies in terms of what your 

ideas and others have in terms of recovering the species? 

Mr. WESCHE. I would attempt to give that my best shot. First off, 

let me say that I’m not sure that my argument that river drying 

and removal, that river drying and the condition of flow within the 

Rio Grande channel is not a primary cause. I don’t think that argument has gone very far with many of the Federal agencies, and 

perhaps others. Certainly some within the program that I’ve discussed my arguments with are receptive to them, others are not. 

And this is why the program is there, and in a forum such as the 

Science Subcommittee are there to discuss such matters. 

In my opinion, while the stream flow is certainly an issue, there 

is a dual goal here that we have to look at if we’re going to recover 

the silvery minnow. Sure, we do need some amount of water, but 

the critical question, in my opinion, is, how is that water performing and behaving within the channel to which it flows. 

And this is where the matter of habitat enhancement and physical habitat restoration enters into questions. We’re dealing have a 

very severely degraded channel here, and as I testified earlier, even 

though flows recently have been augmented substantially, the minnow has not recovered, and that tells me something is lacking here. 

And a big part anyway of what is lacking, and certainly not the entire answer is a well, is a diverse, complex channel through which 

whatever flows available can provide for that. 

The CHAIRMAN. Just, finally, let me ask you, you have an understanding of the hydrology of the river, the way that the river 

works. Right now they are taking imported water and releasing 

that in an effort to increase flows. What would happen in the river 

if that water wasn’t there, if they hadn’t imported that water into 

the system, if the reservoirs that were built over hundreds of years 

in this area, if all the canals, everything wasn’t there and we went 

through an extended drought period, what would happen to the 

river? 

Mr. WESCHE. Well, let me respond by saying that historically, 

while intermittence was a natural characteristic of the river, that 

the river, the structure of the river was quite a bit different than 

what we see today, is my belief. We had a much broader floodplain 

where we had secondary and tertiary channels where small 

amounts of water would remain, even though flow in the river no 

longer was present, but species could exist within that. What we 

see now is a river that has been severely channelized, both due to 

man’s actions, and also physical processes within the river itself. 

We see a river that’s been narrowed and deepened, and it’s connection with its floodplain and the secondary channels, has been lost. 

So today, when we see a river, the river go dry, we may not have 

some of these historic habitats available to us. 

Now, to my knowledge, no one has yet defined exactly what the 

in-stream flow requirements of the minnow are. And that, to me, 

is also one of the areas lacking so far. 

The CHAIRMAN. Thank you. 

Mr. Baca. 

Mr. BACA. Thank you very much, Mr. Chairman. The first question I have is for D’Antonio, Jr., who is representing the Governor’s 

Office. We understand that the endangered silvery minnow is an 

67

emotional issue for the people of New Mexico. How great of a financial impact do you say that the endangered silvery minnow will 

have on the State of New Mexico, both from agricultural and infrastructure development resulting from water use reduction? 

Mr. D’ANTONIO. Mr. Chairman, Members of the Committee. The 

financial impact to the Middle Valley, obviously, I think that the 

biggest impact that is going to cause concern to everybody is the 

drought situation, the drought scenario that we have. Everything 

that we’ve been able to do within state law is to require the Federal Government to come in and acquire at an arms’-length transaction, water from individual private property holders. 

To date, and we’ve been able to do this, to date we’ve been able 

to permit every Federal Government activity that’s come in and require that the Federal Government actually does purchase water 

from willing buyers and willing sellers. And from my office standpoint, I don’t see any reason why we’re going to do any different 

in terms of protecting private property owners’ rights within the 

state. 

I guess my feeling is, and the things that I’m trying to do within 

my office, is establish some sound water-banking techniques in 

which in times of drought, in which we have periodic drought times 

in which we have limited supply of water, I want to make sure that 

the senior water right holder is protected in terms of being able to 

lease and/or sell his water right for another use, and make sure 

that that senior water right holder is protected. 

In terms of the financial impact to the farmers, and everybody 

else, municipalities, Native Americans, every other water user 

within the State of New Mexico, really the drought is the overarching economic impact to the state. And I see right now no reason why the endangered species shouldn’t be sharing in that shortage. 

We have a shortage in almost every basin within basin, I say almost every, every basin within the State of New Mexico we have 

a shortage of water resources. And we’re implementing shorted 

sharing amongst all users. And I guess my concern is that the endangered species also shares in that shortage. 

And I think we have mechanisms in place with the refugium, the 

ability to breed in captivity the endangered species that we can reintroduce. I think Biological Opinion allows for us to dry the river, 

and I think within the state we’re dealing more with issues of 

drought than we are with just water being provided for the minnow. 

If we have a good system in place we should have a willing seller 

and, in this case, a farmer that may not be having a full supply 

of water, have the ability to sell his supply to the Federal Government for endangered species use and make sure that that senior 

water right holder is compensated; there is not a taking and still 

provide some flexibility within our system to allow water for the 

minnow. 

Mr. BACA. Eileen, you look like want to jump in here. Could you 

tell us what it would be, or do you have a figure or cost? Because 

I know you talked about providing funds. As we’re looking at the 

needs of providing funds we’d like to look at what is the actual infrastructure of the cost that may impact the area as well? 

68

Ms. GREVEY HILLSON. Chairman Pombo, Representative Baca, 

Members of the Committee. In terms of the City of Albuquerque, 

we have already paid over 50 million dollars for this water. By the 

time the San Juan-Chama project would be completed, with its associated subprojects, that would be over 250 million dollars. If our 

48,200 acre feet was put at risk and we were not able to do it, it 

would immediately be a 50-million-dollar lump sum loss. The replacement cost, at about 4500 to $5,000 an acre, would be 

over 300 million dollars for the City of Albuquerque. That doesn’t 

begin to touch the opportunity cost of what we could have done 

with that water that we’ve already paid for, or what we could have 

done with the water that we would need to secure to go out and 

replace the San Juan-Chama water. 

I’d like to underscore the fact that was brought up by Committee 

Members, that there is something called fiduciary responsibilities 

of elected city officials to the ratepayers, asking them for seven 

rate increases. And that’s another very negative impact that would 

come about with the threatened loss of this water. 

One final thing I just wanted to add is that when we talk about 

compensation for water that has been taken, that this is community would certainly agree that water that is taken should be compensated for, but there is a problem with monetary compensation 

for water, you cannot drink money. 

And the water that the City of Albuquerque intended to utilize 

to offset the effect of its pumping groundwater, the impact that 

that had on surface flows in the Rio Grande, there is no amount 

of money that is going to be able to compensate for putting wet 

water back into the river to offset for that groundwater pumping. 

And we don’t want to turn the clock back to continuing the unsound mining of our aquifer. So it presents a great dilemma. 

Mr. BACA. I know that my time has expired because the red light 

has come on and back in D.C. they would cut us off immediately, 

but hopefully the Chair would allow me to ask one additional question and hopefully we have time to ask additional ones. And if not, 

I’ll submit those and hopefully you’ll be able to reply or some of the 

panelists out here. 

To John D’Antonio; What do you think the region could to do improve water infrastructure and use to benefit the communities that 

rely on the Rio Grande? 

Mr. D’ANTONIO. Mr. Chairman, Congressman Baca. The—we 

need more funding in terms of looking at the measuring and metering and look at efficiencies. The whole, biggest problem within, 

with New Mexico, I feel, is being State Engineer and trying to administer, actively manage our water resources, is the lack of measuring and metering devices to actually go in and look at implementing and enforcing, number one, priority administration, which 

we don’t have the tools in place to administer priorities. 

And number two, in the absence of having the proper tools in 

place, which are measuring and metering devices, which are an active water master and rules and regs within all the major river basins, we have to have measuring and metering components so that 

we can account for the water usage. And that’s where we need to 

focus in the short term. 

Mr. BACA. Thank you. 

69

The CHAIRMAN. Mr. Calvert. 

Mr. CALVERT. Thank you, Mr. Chairman. My favorite philosopher 

once said, Yogi Berra, ‘‘It’s deja vu all over again,’’ and we’ve been 

here before, Mr. Chairman. We’ve been in Klamath Valley, we’ve 

been talking about the Platte, Nebraska, Upper Mississippi in Missouri, the Arkansas River in Colorado, and certainly the Colorado 

River. I’ve spent some time in Brownsville, Texas. 

And my second favorite philosopher is Clint Eastwood, and he 

said, ‘‘You got to know your limitations.’’ And what I mean by that 

is that the reallocation of water within the state. And you will hear 

from some, and we’ve heard from many over the years, that all waters are Federal waters. And obviously I don’t believe that, I don’t 

think most people believe that; certainly most water law doesn’t 

represent that. And I guess my first question is for the State Engineer John D’Antonio, can you describe how the other western 

states are viewing this current Tenth Circuit decision? 

Mr. D’ANTONIO. OK. Mr. Chairman, Congressman Calvert. Yeah, 

I think every western state has the same opinion as we do, that 

the Tenth Circuit decision is an absurd decision, that it really will 

give the Federal Government the discretion to go in and take 

water. And again, that’s where I would draw the line, obviously, 

within the State of New Mexico, with that first taking. 

And I consider that these perpetual contracts that are in place 

with the San Juan-Chama water, if the government were to have 

that, the Federal Government, that discretion to take water, then 

it is a taking in my view, and I think every other of the western 

states— 

Mr. CALVERT. You bring up a key word, the word ‘‘discretion,’’ 

and in all water case law we come up with the word ‘‘discretion’’ 

is being bantered about. But the Secretary—does the Secretary 

have discretion to reallocate water, especially within a state, for 

other purposes? And really, I think that this entire case is hinged 

on that, on that, that principle. How does that impact western 

water law principle throughout the west, not just the law of the 

river that has been created here in the Rio Grande, but every 

major river in the west? 

Mr. D’ANTONIO. Mr. Chairman, Congressman Calvert, I think it 

turns of the prior appropriation system on its head, again, my feeling is that—and my job is to protect the senior water right holder 

on the system within New Mexico, and I think this decision, if it 

stays as it is, has far-reaching effects to do just that, to turn the 

prior appropriation system on its head. 

Mr. CALVERT. If state water law is put on its head, as you, I 

think, accurately state, how are states like New Mexico, or any 

other western state, able to make economic decisions for their future if the amounts of water are undeterminable? In other words, 

if, in fact, you have a question mark of whether or not water right 

will hold, based upon what has been historically the case, how do 

you, as a water engineer, make decisions? Are you able to make decisions? 

Mr. D’ANTONIO. Well, Mr. Chairman and Congressman Calvert, 

you know, it’s almost impossible to make a fair decision in terms 

of how we allocate our water resources and make sure that the senior water right holders are protected. 

70

Mr. CALVERT. Have other states joined New Mexico in its legal 

efforts to rehear the circuit case? 

Mr. D’ANTONIO. Mr. Chairman, Congressman Calvert, I believe 

so. There’s significant amount of other western state interest in 

terms of—I don’t know the particular states but I know that they 

have joined New Mexico in their views. 

Mr. CALVERT. OK. On the—you know, we run into a lot of issues 

as far as reallocation of water because of the Endangered Species 

Act. Obviously, you know, New Mexico is not by themselves in this 

case. But I think it would be, the people here in New Mexico need 

to understand that this is an issue that’s broader than just New 

Mexico. This is an issue that by some, we believe, that the Federal 

Government should control the reallocation of water within the 

states, and I think it’s up to us here, as members, to obviously protect the rights of the states and the community because just, by the 

way, paying individuals for water is, in my mind, still, still does 

not answer the question of third-party impact. There are thirdparty impacts on the environment when water is exchanged. There 

are certainly third-party impacts on communities and economies 

beyond just the payment to a farmer, those who may hold private 

property. 

My time is expired. I look forward to the second round. Thank 

you, Mr. Chairman. 

The CHAIRMAN. Congressman Pearce. 

Mr. PEARCE. Thank you, Mr. Chairman. Before I start my questions I’d like unanimous consent to include a tape from a rally held 

earlier today with several speakers on this issue. Include that in 

that testimony from today. 

The CHAIRMAN. Without objection. 

[NOTE: The tape has been retained in the Committee’s 

official files.] 

Mr. PEARCE. I appreciate the presentation from of all of you. Ms. 

Sanchez gave just a compelling personal testimony of her family 

that’s caught in this issue. Ms. Hillson adequately described the 

need for certainty. The Governor just gave us the historical, spiritual qualities of water that I appreciated. John, I’m always appreciating your testimony every time I hear or see you. I’m glad you’re 

representing us in the water issue. I think the boldness with which 

you characterized the Tenth Circuit decision, takes a lot of courage 

to say that publicly, and I appreciate your willingness to take a 

stance. 

My question for you is, in your opinion, does the treaty of Guadalupe Hidalgo precede or supersede this decision by the Tenth Circuit or can the Tenth Circuit even take waters that should be guaranteed through that treaty? 

Mr. D’ANTONIO. Mr. Chairman, Congressman Pearce. I’m, I guess 

I’m a little bit deficient in being able to answer it in terms of the 

treaty of Guadalupe Hidalgo other than I would say that I don’t 

think the Tenth Circuit decision has any merit at all in terms of 

how it’s come out; so, obviously, the treaty would suffice or would— 

Mr. PEARCE. I was asked the question earlier today and, frankly, 

had no answer either, but it does not look like the court is saying 

that the treaty waters are exempt in any way. 

71

Ms. Belin, in your verbal testimony, and page six of your testimony, you claim that the Federal Government has the perfect right 

to be involved because it’s funded and built the dams, reservoirs, 

irrigation ditches and levees to the Rio Grande to the tune of hundreds of millions of dollars. Is there some default that exists to justify this, this intrusion by the Federal Government or is it not a 

case of default that, instead, just the lending or participation is the 

basis of the Federal Government’s presence? 

Ms. BELIN. Mr. Chairman, Representative Pearce. The Tenth 

Circuit decision is fundamentally an interpretation of the Federal 

contracts, and those Federal contracts were entered into by a bargain basically between the water users and the Federal Government. They got, the water users got a lot of benefits, and in return 

for that they gave, gave some things up. And I think fundamentally 

the decision just is a reading of a contract in saying what does this 

contract provide? 

In the case of the San Juan-Chama contracts, the only—those 

contracts are the only basis for those water rights. So it’s really 

just a matter of looking at the contracts and interpreting them, and 

interpreting how much discretion is left in the Federal Government. 

In the case of the Middle Rio Grande, it’s a little bit different because people already had water rights under the state prior appropriation system, but then the district entered into a contract with 

the Federal Government to get those Federal investments, and in 

the process of entering into the contract, the Federal Government 

got ownership over the diversion facilities and the other works, and 

thus has authority over those. So I think it’s really a matter of Federal contract law basically. 

Mr. PEARCE. Really, I did not hear in that comment that there 

was default of any kind. The Federal Government—three or 4 

years ago when I was in the state legislature—brought suit to declare ownership of water in the Elephant Butte irrigation system, 

and it’s my understanding that that’s the only Bureau of Reclamation project that has been paid off in full. And would your firm engage in lawsuit saying that the Federal Government should be 

there taking that water, or would you not in the case where the 

facilities have all been paid free and clear? 

Ms. BELIN. Well, I think it’s a question of who owns the facilities 

and what the law provides as to who has authority over those facilities so who can operate them. And I’m not familiar—I know that 

the Middle Rio Grande project, Congress has not turned back the 

facilities to MRGCD, so the Federal Government still owns them. 

So—and I’m not exactly familiar with the status of that on the Rio 

Grande project. 

Mr. PEARCE. So the Elephant Butte was where the suit was 

brought and, again, those facilities have been paid off and yet the 

Federal Government said they own the water. And so I think, Mr. 

Chairman, what we’re seeing is a great assault from the Federal 

Government to say that ‘‘we own all the water in the west;’’ it was 

actually for a short time last year, a legislation in the senate that 

declared that. 

And I think that, that we, in the poor states, we states that don’t 

have millions and millions of population, are going to lose tremenVerDate 0ct 09 2002 09:11 Feb 06, 2004 Jkt 088533 PO 00000 Frm 00075 Fmt 6633 Sfmt 6602 J:\DOCS\89218.TXT HRESOUR1 PsN: KATHY
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dously if, if the Federal Government takes water, because it will 

go where its politically expedient for it to go. And so this fight is 

a fight, not only for property rights, for constitutional rights, but 

it’s a fight for the small, less populous states against those that 

would take the water for any purposes. 

My last point, I think, with regard to this, and, Mr. Wesche, I 

appreciate your comments on it, we feel like are on track. But this 

concept that the Federal Government sometimes lent money and, 

therefore, it’s got a right to take ownership, is one that seems only 

to be directed at the agriculture segment. I don’t see the Federal 

Government saying that ‘‘we built all of the highways through your 

state; these are not loans even. We built all the highways so we 

own all the commerce. We own every vehicle that goes over the 

highways.’’ We’ve built in China the Three Gorges Dam and in 

Egypt the Nasser Dam, and I don’t see anyone in America saying 

that we should take ownership of the water in those areas. It looks 

like the justification that the Federal Government somehow got involved and lent money is one that’s peculiarly used as an attack 

on the agricultural community. 

Mr. Chairman, the agriculture economy is the economy along 

this Rio Grande River. It’s not just farmers and ranchers that will 

be out of jobs, it’s people who sell oil, tires, fertilizer, tractors; the 

stakes are huge in this battle for my district. 

And, Mr. D’Antonio, I’m happy to have you there, again, because 

I think your position is the most key position in this water fight. 

Thank you all for being here. Thank you all for your testimony. 

The CHAIRMAN. The Chair now recognize Congresswoman 

Heather Wilson. 

Mrs. WILSON. Thank you, Mr. Chairman. And again, thank all of 

you for your testimony. 

I have some questions to clarify some things and, John, I believe 

maybe you can help me on some of this water law. If the Federal 

Government owns a dam, do they own the water right. 

Mr. D’ANTONIO. Mr. Chairman, Congresswoman Wilson. No, the 

ownership of a water right in New Mexico is based on who put that 

water to beneficial use. And, obviously, the farmers in the Middle 

Rio Grande, which we’re referring to here, they’re the ones that 

have put water to beneficial use. They’re the owner of that water 

with that priority date, depending on when they put that water to 

use. 

Mrs. WILSON. So does the Federal Government have any water 

rights on the Rio Grande? 

Mr. D’ANTONIO. Mr. Chairman, Congresswoman Wilson. They do 

have some water rights in terms of federally reserved rights for 

service and some things along those lines. But as far as actually 

owning water rights, it’s very limited. 

Mrs. WILSON. And those water rights were acquired in accordance with state law; is that a right? 

Mr. D’ANTONIO. Yes, Mr. Chairman, Congressman Wilson. All 

water rights that I’ve seen involving Federal Government is being 

permitted through state regulation. 

Mrs. WILSON. Alletta, I had some questions for you as well. I 

think this is, reading your testimony as far as how far these Federal rights go, in your view, to use other people’s water. Your view 

73

that the Federal Government would provide water to be included 

was to the extent consistent with ESA. Now, does that mean that 

the Federal Government has the right to take tribes continuing 

water rights— 

Ms. BELIN. I’m sorry, I couldn’t hear you, the last part. I heard 

the first part. 

Mrs. WILSON. Does the Federal Government have the right to 

take tribes pre-treaty water rights if they need it to comply with 

the Endangered Species Act? Does the ESA own the right of private water, pre-treaty water rights? 

Ms. BELIN. The ESA—there’s nothing in the Tenth Circuit decision that says the ESA overrides anybody’s water rights. As I said, 

it’s a matter of having an effect on entities that enter into Federal 

contracts. 

Mrs. WILSON. Most of the tribes on the Rio Grande get their 

water through the Middle Rio Grande project works. Can the Bureau of Reclamation or the Middle Rio Grande Conservancy District be ordered to go out there and turn off the ditches for tribes? 

Ms. BELIN. That is not something we have ever asked for, in fact, 

we have— 

Mrs. WILSON. I’m asking you—you’re a lawyer, you have been a 

plaintiff a lot longer than I have been involved with this. I’m asking what your view is. Does the Federal Government, under these 

laws, have the right to go up and turn off the tribes ditches? 

Ms. BELIN. The Federal Government has authority over the 

MRGCD ditches. As to that subset of issues, how it affects the 

Pueblos, I don’t have an issue. 

Mrs. WILSON. When you initially filed your lawsuit against the 

United States, your initial filing said that we need 300 cubic feet 

per second of water at the volume of the conservancy district, the 

river is dry now, and has been for weeks. And your initial contention was that if we didn’t have that, the minnow would go extinct. 

They haven’t had it for several weeks, is the minnow extinct? 

Ms. BELIN. First of all, we didn’t say that we were following—

all along we have been following the biological, the opinions issued 

by the U.S. Fish and Wildlife Service. And at that time the Fish 

and Wildlife Service was saying that there needed to be continuous 

flows from Cochiti all the way down to Elephant Butte. The Fish 

and Wildlife Service has evolved with these opinions. I think that 

the minnow— 

Mrs. WILSON. I think there is an important clarification. You did 

not allege that without 300 cubic feet per second the minnow would 

go extinct. You have never changed that? 

Ms. BELIN. No, we did not. 

Mrs. WILSON. That’s interesting. One final question. You say in 

your written testimony that for most of the Tenth Circuit’s holding 

by a back room appropriation meetings, never received any published or congressional debate, did not serve the public’s interest. 

Mr. Pearce, and I often remember, on floor of the house in July 

there was submitted by the full House of Representatives, and 

voted on the floor of the House. Is the floor of the House the one 

you’re referring to or are you referring to other amendments? 

Ms. BELIN. Representative Wilson, first of all, I want to say I do 

think that the minnow, by the way, based on the current dryness, 

74

is heading toward extinction. But getting on to that question, my 

understanding of that is that there was no debate at all on that 

provision, that there was no opportunity for review at the time of 

the minnow Committee review, no hearings, no discussion. 

Mrs. WILSON. Is it your view that a member of Congress should 

never be allowed to offer an amendment and debate it on the floor 

of the House and voted in the full view of the United States of 

America? 

Ms. BELIN. Representative Wilson, no, that’s not my view. My 

view is, obviously these issues relating to the Endangered Species 

Act and exceptions from the Endangered Species Act. And potential 

extinction of species are highly controversial and are issues of great 

public importance that really deserve a full scrutiny through hearings and a full debate, and shouldn’t just been popped out without 

debate. 

Mrs. WILSON. And they are better decided in Denver. 

Thank you, Mr. Chairman. 

The CHAIRMAN. I want to recognize Mr. Baca for additional 

questions. 

Mr. BACA. Thank you very much, Mr. Chairman. I guess one of 

the questions for Belin, just to continue some of the questions that 

were asked. The minnow’s historic habitat used to run all the way 

down the Rio Grande to the southern tip of Texas. Is there any possibility of helping restore the minnow population at downstream locations? 

Ms. BELIN. Representative Baca, certainly we have strongly supported reestablishment of the minnow in other locations outside the 

Middle Rio Grande, including down in the southern area. We certainly hope that that process moves forward as quickly as possible. 

Mr. BACA. Thank you. Jessica, earlier in your document you stated that it has been documented that the silvery minnow can survive lower water levels in a dry season. How has your farm been 

affected by the reduction of water available and what have you 

been doing to— 

Ms. SANCHEZ. Our farm, along with other farmers in this valley, 

has been affected. Our crops have died. My family has lost parts 

of our alfalfa and hay which we use in order to feed our cattle. 

That is winter feed for us. Also, without having the last cutting, 

due to the lack of water we are unable to keep a stock amount of 

pasture where we would normally. Without this pasture, that we’ve 

had a lack of, we have to buy new hay. 

We also sell some of our alfalfa and some of our hay to both the 

farmers and ranchers in the area. If we do not supply them with 

their needs, then they have to go to an outside source, costing more 

money needed to them because of shortage of hay, because of the 

shortage of water. And also costing more money to them because 

of transportation needed to go for the distance to get this. 

We have implemented new things like a national beef program 

in order to gain more money on the cattle, instead of normally 

when we go to the sales barn, to the market, we get a given price 

for the animal per pound. In order to accommodate for that and 

compensate for the loss in our cops and our fields for the water, 

we are having to create a national meat market to gain an added 

75

value price to that animal in order to compensate for the money 

lost and put back into our farming operation to continue on. 

It is just taking a toll more than just financially, economically. 

Whether we have the water or not, we still have to pay the same 

amount of water taxes. So that’s something that we have to budget 

out, but we still don’t have that money coming back in. And we’re 

not compensated for those water taxes that we are paying. 

It’s like a domino effect, if we can’t economically participate in 

commerce because of the lack of our income, then, therefore, the 

local commerce, the local operations that are in this area which we 

help support, grocery stores and other things, car dealerships, will 

also falter and die with us. 

Mr. BACA. Thank you, very much. 

Governor Ortiz, how greatly will San Felipe water rights be affected by the silvery minnow compared to other Pueblos? 

Mr. ORTIZ. Chairman, Congressman Baca, I will let my lead 

counsel respond to that. 

The CHAIRMAN. OK. Please identify yourself for the record. 

Ms. WILLIAMS. My name is Susan Williams. I’m legal counsel to 

the Pueblo of San Felipe. The Pueblo of San Felipe, along with all 

the other Pueblos, are at great risk of the taking of their water 

rights for the silvery minnow. All the Pueblos support equal system 

restoration of all species and protection of all species, but not at 

the expense, and in disregard water of the senior Federal reserve 

water rights for these tribes. 

These tribes have overlapping water rights. Members of Congress, they have Federal reserved water rights with aboriginal priority that predate all the state permits and the rights to use water 

through the MRGCD. Now they have some water rights through 

the MRGCD as well, but they’re overlapping with their preexisting 

Federal reserved water rights, and some of their water rights are 

not covered by the MRGCD permits. 

And that is why the Pueblos are concerned that their storage in 

El Vado Reservoir is at risk, because none of the riders specifically 

protect the Federal reserved water rights for the tribes. The natural flow water rights of the tribes, they’re not in as much risk because there is no natural flow, it’s our water rights in El Vado that 

are the target of any needs for the silvery minnow, and they may 

not be protected through the Middle Rio Grande Conservancy District state permits. 

So if we want clarification in any riders that protect water rights 

from a taking or use of the silvery minnow, to specifically refer to 

the Federal reserve water rights and the Pueblos to insure that our 

overlapping water, Federal and state water rights, are protected 

along with everybody else in this valley. 

Mr. BACA. Thank you very much. 

If I may ask one other additional question, Mr. Chairman. 

This goes to Ms. Hillson. Of the potential available solutions to 

preserve the silvery minnow, which solution would benefit the City 

of Albuquerque the most economically? 

Ms. GREVEY HILLSON. It’s really a combination, but certainly the 

overturning of the Tenth Circuit Court decision is critical to the 

economic sustainability of Albuquerque. It’s meant, not just the actual loss of water, even if circumstances made it that the water 

76

doesn’t need to be taken, the perception that that creates in the 

business community, both in Albuquerque and the Middle Rio 

Grande and outside, is completely countered to the concept of economic sustainability and growth. 

The idea of collaborating, collaboration to recover the minnow 

while at the same time allowing present and future human water 

use, is something that would greatly benefit the City of Albuquerque. It has been taking part with great financial contribution, 

and the income contributions of labor in the Middle Rio Grande Endangered Species Act Collaborative Program effort, and the city 

really feels that that is—well, I can’t speak on behalf of the city—

the business community feels that that is certainly an appropriate 

avenue to pursue; collaboration that is hopefully taking place 

through the Governors and Congress, and other examples. So it 

really is a combination. 

The riders that take the water off the table and protect the users 

here in the valley, and certainly we would agree with what Ms. 

Williams has stated, those are critical. We think that the Endangered Species Act, the solution is that the Endangered Species Act 

to protect the endangered species but not use it in human species 

as the sacrificial lambs to do it, and there has to be a balance. 

Mr. BACA. Thank you. 

The CHAIRMAN. Thank you. 

Mr. Calvert. 

Mr. CALVERT. Thank you, Mr. Chairman. The Native Americans, 

you need to relax because the Federal Government, we never violated Native American rights. 

One thing I want to point out in closing, that I would like to 

work certainly with both the members here in New Mexico, Senator Domenici and Senator Bingaman, to really help develop additional water. Because, you know, in the final analysis, this entire 

hearing is because of the stress on the availability of water 

throughout the west. And I’m putting a little appetizer here, we 

have a legislation where we’re proposing, both the Chairman and 

I, are supporting H.R. 2828 which, in effect, would develop additional water, either through conservation, which is important, I 

heard that as much as 11 acre feet per acre is being used on land. 

You know, we ought to be able to help create better methods of irrigation and get the same amount of production used by you by less 

water per acre. That could create additional yield, that’s one way 

of conserving. 

But reclamation of the communities here in Albuquerque and 

throughout New Mexico, and throughout the west, is important. 

Conveyance in a more efficient system. Because these are commonsense solutions for the problem. And I just insure that we can get 

everyone’s support here to do that exactly. I know Mr. Baca sponsored this bill also. I think we’re going to have a lot of support for 

this to move forward. Let’s look for some common-sense issues 

where we don’t have to have these tragedies that happen every day 

throughout the west. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Pearce. 

Mr. PEARCE. Thank you, Mr. Chairman. I’ve got one, one clarification for him and one question. But before I do that I would like 

77

to give some thanks, thanks to the Belen Consolidated Schools Superintendent Don Duran. Thanks to Belen High School Principal 

Joe Trujillo; Vice Principal Audrey Tucker. Their entire staff has 

worked diligently to make this hearing, both possible, and for it to 

come off without flaw. The City of Belen Mayor Ronnie Torres, and 

all of his staff, have been extremely helpful. To Belen Chief of Police Mike Chavez, and his entire staff. All of his officers have been 

congenial and offering their services to us. 

Socorro Consolidated Schools’ Mr. Nick Fleming provided the 

communications. His staff has been exceptional. My staff has commented during the week about how well coordination among all of 

these, these groups have gone. 

Finally, Mr. Herman Tabet and the entire staff of the Belen Holiday Inn Express have just been courteous and gracious to the Committee Members who have stayed here and we appreciate that. 

My point of clarification, Mr. Chairman, is that, again, on the 

subject that Congresswoman Wilson was addressing, the information in the one testimony that declared a back room deal to be 

worked on a rider; the person that led the debate team on this subject had the amendment 1 week in advance and, in fact, was invited to be a co-sponsor of that amendment, elected not to debate 

against it. I think misinformation that’s contained in your testimony is unfortunate. I think it’s what drives the deep, deep split 

in the very controversial issues when we begin to misuse information that’s, and it’s misleading. 

My last question, again, and a very short answer, Mr. D’Antonio, 

will be that from your testimony it appeared that we were well on 

our way to collaborating in a solution that would have insured the 

survival of the species of the silvery minnows, and it would also 

have gone a long way to insuring the survival of the species of the 

American farmer as they exist on the Rio Grande Valley. The 

Corps of Engineers was also participating in that, and it’s my understanding that all of those collaborations were set aside and were 

required to be set aside by this court decision; is that true? 

Mr. D’ANTONIO. Mr. Chairman, Congressman Pearce. I don’t 

know that they were set aside. I think that it was a group of two 

different teams that were supposed to be working on this, and I 

think one of them was a technical team and a participation team. 

And I think the participation team hasn’t met for a period of time. 

But the collaboration is still ongoing as far as I know, and I’m not 

sure I’m addressing the question or not, but we’re continuing to go 

forward with this collaborative efforts in line with everything else 

that’s going on. 

Mr. PEARCE. And you’ve developed ways to keep the minnow 

alive, alternative means to keep the minnow alive in finding that 

it breeds in captivity very well? 

Mr. D’ANTONIO. Yes, as a matter of fact, in the last initial phase 

of refugium there were 600 adult minnows that produced over 

200,000 eggs, of which 90 percent were fertile. And so we provided 

that initial result as a very good result in terms of captivity and 

breeding of the species in captivity. 

Mr. PEARCE. OK. Thank you, Mr. Chairman. I know that we’re 

running up against the clock and I will yield now. 

The CHAIRMAN. Congresswoman Wilson. 

78

Mrs. WILSON. Thank you, Mr. Chairman, and thank you again 

for holding this hearing, and thank everyone for coming, and particularly those who testified. 

I would ask the Chairman to accept the Rio Grande Silvery Minnow versus John W. Keys, to support an emergency injunctive relief dated September 4, 2002, and signed by Ms. Belin. 

The CHAIRMAN. Without objection. 

Mrs. WILSON. Thank you, Mr. Chairman. I don’t have any final 

questions. I do have one, I guess, final thing to say, and that is 

that Americans have a role in the south and the west, and our biggest challenge over the next 50 years will we be to able to provide 

the water that is needed to sustain our growth and our way of life. 

And that means we’re going to have to do some really innovative 

things, like water banking, and conservation, and restoration, desalinization, and research and development on the use of evaporation. 

Number one, water loss in the State of New Mexico is evaporation. 

Actually there are things that can be used to plan for our future, 

we cannot allow the Tenth Circuit Court opinion to stand. The first 

step has to be restoring, protecting New Mexico’s water rights, and 

the primacy of water law in the state of New Mexico. 

I think we’re making steps toward that end. We’re also taking 

steps to protect the land we love. We are blessed to live in the most 

beautiful state in the Nation and all of us want to keep it that way. 

I think by working together we can do so. We don’t solve problems 

by spending millions of dollars on lawyers and courts. We solve it 

by working together in a collaborative process which restores balance, protecting the land we love and the way of life. 

Mr. Chairman, thank you so much for coming to New Mexico. It’s 

really a pleasure to have you here. Thank you. 

The CHAIRMAN. Thank you. It was my pleasure to have the opportunity to be here and to hear from our witnesses. We received 

extremely valuable testimony, and as our, my effort and the effort 

of the Committee has been to try to get members of Congress outside of Washington and to bring them into areas like this where 

the real problems are, and to actually hear from people who have 

to deal with the rules and regulations and the laws that are passed 

by Congress and implemented by the Administration. I think it’s 

well worthwhile for the members of the Committee to have this opportunity. 

I want to thank Congressman Pearce and Congresswoman Wilson for their hospitality and for their insistence that we do bring 

the Committee to New Mexico. And over the past several weeks 

we’ve had a number of conversations and, about the need to bring 

the Committee out here, and I was happy that we finally had the 

opportunity to do that. 

I want to especially thank Congressman Baca and Congressman 

Calvert for making the effort to be here and to spend time away 

from their districts. I would say their families, but since his family 

is here it doesn’t count, half his family. But in conclusion, I’d say 

that I come from a district in California that, amongst many, many 

other things, we are home to endangered kangaroo rats, endangered frogs, endangered snakes, endangered birds, endangered fish, 

endangered foxes, every square inch of my district is habitat for 

one endangered species or another. 

79

And to listen to Congresswoman Wilson talk about the future, I’ll 

let you in on a little secret about the future. My home town, the 

average price of a home has now hit $350,000. The average price 

of homes in other cities in my district are in excess of $650,000. 

The opportunity that my kids or my grandkids are going to have 

to live in a community that my family has been in for five generations doesn’t look real good right now. And as we look at, as Congressman Calvert said, trying to put some common sense into the 

implementation of this law, I hope that Congress is able to recognize what the real impacts are on communities and to try to factor 

that into the implementation of this law. 

I want to thank the community for being here, for sharing with 

us this beautiful place. And I’ll tell you that because of the limitation on time not everyone had the opportunity to testify that wanted to. The hearing record will be held open for 10 days to give everybody the opportunity to submit written testimony that will be 

included as part of the hearing record. 

If there is no further business before the Committee, I want to 

thank the members of the Committee, I want to thank our witnesses for making the effort to be here. And the Committee stands 

adjourned. 

[Whereupon, the Committee was adjourned.]

The following information was submitted for the record: 

• Central Arizona Water Conservation District, Statement 

submitted for the record 

• Chavez, Hon. Martin J., Mayor, City of Albuquerque, New 

Mexico, Statement submitted for the record 

• Godfrey, Liz, Great Plains Organizer, Endangered Species 

Coalition, Blanco, New Mexico, Letter submitted for the record 

• Harris, Steve, Executive Director, Rio Grande Restoration, 

Statement submitted for the record 

• Madrid, Hon. Patricia A., Attorney General, State of New 

Mexico, Letter submitted for the record 

• National Endangered Species Act Reform Coalition, 

Washington, DC, Statement submitted for the record 

• Ortiz, Hon. Anthony, Governor, Pueblo of San Felipe, Response 

to questions submitted for the record 

• Rio Grande Water Rights Authority, Statement submitted for 

the record 

• Shah, Subhas, Chief Engineer, Middle Rio Grande Conservancy District, Albuquerque, New Mexico, Statement 

submitted for the record 

• Turner, Dr. William M., Trustee, Lion’s Gate Water, Statement 

submitted for the record

[A statement submitted for the record by Central Arizona Water 

Conservation District follows:]

Statement submitted for the record by George Renner, President, Board of 

Directors, Central Arizona Water Conservation District 

Mr. Chairman and Members of the Committee, the Central Arizona Water Conservation District (CAWCD) is pleased to offer the following testimony regarding the 

Tenth Circuit Court of Appeals’ ruling in the Rio Grande Silvery Minnow case. 

While we understand that the chief purpose of this hearing is to take testimony 

80

about the effects of the decision on New Mexico, the case is of exceptional importance to CAWCD and other water users throughout the arid West. 

CAWCD is a multi-county water conservation district responsible for managing 

Arizona’s single largest renewable water supply B approximately 1.5 million acrefeet of Arizona’s annual share of Colorado River water. CAWCD operates the Central Arizona Project (the CAP). 

The CAP was authorized by the 90th Congress of the United States under the 

Colorado River Basin Project Act of 1968. The CAP is a multi-purpose water resource development project consisting of a system of aqueducts and pumping plants 

that lift water nearly 3,000 feet over a distance of 336 miles from Lake Havasu on 

the Colorado River to the project’s terminus south of Tucson. The CAP was designed 

to deliver Colorado River water to the central and southern portions of the state for 

municipal, industrial, agricultural and Indian uses. The Bureau of Reclamation 

(Reclamation) initiated project construction in 1973, and the first water was delivered to the Phoenix metropolitan area in 1985. The project’s aqueduct system was 

declared complete in 1993. In 2000, the CAP delivered for the first time its full normal year entitlement of 1.5 million acre-feet, allowing Arizona to use its full Colorado River apportionment of 2.8 million acre-feet. 

CAWCD was created in 1971 for the specific purpose of contracting with the 

United States for the delivery of the CAP water supplies and the repayment of the 

reimbursable construction costs of the CAP properly allocable to CAWCD. In 1972, 

CAWCD entered into a master contract with Reclamation for delivery of Colorado 

River water and repayment of CAP construction costs (the Master Contract). Under 

the Master Contract, CAWCD is entitled to divert all Colorado River water available 

for use within the State of Arizona under the terms of the decree entered by the 

United States Supreme Court in Arizona v. California, 376 U.S. 340 (1964), after 

satisfaction of senior and certain co-equal priority uses. CAWCD’s service area is 

comprised of Maricopa, Pima and Pinal counties, encompassing roughly 80% of the 

water users and taxpayers of the State of Arizona, including the greater metropolitan areas of Phoenix and Tucson. 

Recently, in the Silvery Minnow case, the Tenth Circuit Court of Appeals ruled 

that the Endangered Species Act allows, indeed requires, Reclamation to amend its 

water delivery contracts unilaterally and reallocate contracted-for project water for 

the benefit of an endangered fish B the Rio Grande Silvery Minnow. 

This ruling threatens Reclamation water delivery projects throughout the West. 

It suggests that the requirements of Reclamation water delivery contracts may freely be ignored if the United States finds a new use for the contracted-for water supplies. It sets an extremely dangerous precedent, allowing, even requiring, that Reclamation reduce deliveries of project water to those who have contracted for it, and 

instead use that water for the benefit of endangered fish and wildlife, even though 

the water delivery contracts were entered into prior to the enactment of the Endangered Species Act (ESA) and never contemplated use of the water supplies for endangered species. The ruling allows Reclamation to lay claim to project water supplies to benefit endangered species even though Reclamation has no recognized right 

to the project water at issue. The ruling turns Western water law on its head and 

injects intolerable uncertainty into settled contractual expectations. 

Although Reclamation’s authority and responsibility in any given case will vary 

according to applicable contracts and law, incorrect resolution of the legal issues at 

stake in this case could impair the reliability of water contracts throughout the 

West. The proper resolution of the issues in this case is a matter of exceptional importance to CAWCD and to all affected stakeholders in the arid West. CAWCD has 

joined with other interested stakeholders in urging the full Tenth Circuit to rehear 

and overturn the decision of the three-judge panel. If the Court fails to do so, however, it is imperative that Congress act to preserve existing water delivery contracts 

against this unparalleled assault on their validity and enforceability. Our future in 

the West depends upon it. 

Thank you for considering this important issue. 

[A statement submitted for the record by Hon. Martin J. Chavez, 

Mayor, City of Albuquerque, New Mexico, follows:]

Statement of The Honorable Martin J. Chavez, Mayor,

City of Albuquerque, New Mexico 

Welcome to New Mexico and thank you for the opportunity to speak with you this 

morning. The City of Albuquerque is centrally located in the Middle Rio Grande valley between the towering cliffs of the Sandia Mountains and the volcano cones of 

81

the West Mesa. The Rio Grande, surrounded by a verdant Bosque forest, flows 

through the central core of our City. However, our more than 475,000 residents do 

not receive their water directly from the river. Currently, the City’s only source of 

water is a large groundwater aquifer and last year the City pumped approximately 

106,000 acre-feet from deep wells. In 1994, the United States Geological Survey 

(U.S.G.S.) published a report that completely changed our understanding of the 

water situation in Albuquerque. Previously, the City, State and other experts 

thought that the aquifer was in direct connection with the Rio Grande and any 

ground water withdrawals would be replenished by the river. The U.S.G.S. report 

clearly showed that only half of the amount the City pumps from the aquifer is 

being replenished causing a rapid lowering of the water table underneath the City. 

Continued sole reliance on the aquifer would lead to serious water shortages, water 

quality degradation and ultimately land surface subsidence. 

Albuquerque’s Water Planning 

In 1995 during my first term as Mayor, we started an aggressive water conservation program to reduce our usage by 30% over ten years. At the end of 2002, we 

had achieved a 26% reduction in overall usage with pumping decreased to levels not 

seen for more than fifteen years. Recently, we adopted an additional 10% reduction 

(or 40% overall reduction as compared to 1995) as the new goal for our water conservation program. Water conservation, however, is not enough to reduce our pumping to sustainable levels. In 1997, the City adopted the Water Resources Management Strategy to provide a sustainable supply to 2040 by transitioning from sole 

reliance on the groundwater aquifer to renewable supplies. The City has three reuse 

and reclamation projects to utilize non-potable industrial effluent, municipal effluent, surface water and shallow ground water for irrigation and industrial uses 

throughout the City. In addition to water conservation and reuse, the most important aspect of the Strategy is the diversion and direct use of our San Juan-Chama 

water for drinking water purposes. 

The Drinking Water Project consists of the design and construction for a new diversion on the Rio Grande, a new surface water treatment plant, and 50 miles of 

transmission pipelines to integrate the surface water with our existing ground water 

system. In addition, the City has designed environmental features into the project 

to protect endangered species including a fish passage structure and fish screens. 

We will be restoring the Bosque and Rio Grande affected by the construction in addition to a commitment to construct three projects over twenty years to provide 

habitat for the silvery minnow. In addition, we are working to remove all of the nonnative species in the Bosque in the Albuquerque reach over the next five years or 

sooner if we can obtain federal and state funding assistance. The recent fires in the 

Bosque clearly show that we must remove the non-native species and clear the dead 

brush to avoid catastrophic fires next year and beyond. The total cost of projects 

with the environmental enhancements was estimated at $180 million in 1997. This 

cost is being paid for by our residents through seven dedicated water rate increases. 

The actual cost of the projects will most likely exceed $ 250 million when complete. 

Albuquerque’s San Juan-Chama Contract 

The City’s San Juan-Chama water is our only available surface water supply and 

represents more than 70% of our supply when projected to 2040. Without the City’s 

San Juan-Chama water, the City would be forced to continue to rely on the depleting aquifer which will lead to serious environmental consequences including lowering the groundwater table in the Bosque adjacent to the river, increased arsenic 

and other salts in the water supply, and ultimately land surface subsidence. The 

City signed a contract in 1963 to provide 53,200 acre-feet of imported water to the 

City in exchange for repayment of the capital with interest (and interest during construction) and a proportional share of the annual operation and maintenance for the 

project. Interestingly, Congress would not allow the Secretary of Interior to begin 

construction of the project until the City’s repayment contract was signed and ratified by the then City Commission. 

In 1965, the City relinquished 5,000 acre-feet for the Cochiti recreation pool. Since the construction was completed in 1971, the City has invested approximately $50 

million for the 48,200 acre-feet with more than fifteen years remaining on the repayment obligation. The City’s contract for San Juan-Chama water is a perpetual 

contract giving the City the right to use and dispose of 48,200 acre-feet per year 

as long as the City is current on our payments. The City has fulfilled our obligation 

to make the payments called for in the contract and have never defaulted. 

10th Circuit Court of Appeals Ruling 

With the 10th Circuit Court of Appeals ruling, the City’s San Juan-Chama water 

is in jeopardy. In Rio Grande Silvery Minnow v. Keys, various environmental groups 

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alleged that the U.S. Bureau of Reclamation, the U.S. Army Corps of Engineers and 

the U.S. Fish and Wildlife Service have discretion to control the dams and waters 

of the Rio Grande and had violated the Endangered Species Act by failing in their 

consultations to consider utilizing San Juan-Chama and Middle Rio Grande Project 

water for the minnow. The State of New Mexico intervened in the case to oppose 

the concept that these federal agencies have discretion to control or allocate the waters of the Rio Grande merely because the federal government has constructed and 

operates dams which store New Mexico’s waters. The Middle Rio Grande Conservancy District, representing the valley farmers, intervened alleging that the federal 

government operates El Vado Reservoir for them and does not own the reservoir or 

the water in it. The City intervened because the environmentalists had included 

Heron and Abiquiu Reservoirs in their list of Rio Grande basin dams which should 

be operated to protect the minnow. Heron Reservoir is the storage facility for the 

San Juan-Chama Project and Abiquiu Reservoir is where the City stores its delivered allocations of San Juan-Chama water. The water delivered by the San JuanChama Project is New Mexico’s portion of the Colorado River. This water has been 

imported under the continental divide into the Rio Chama basin and is not native 

to the Rio Grande basin. The San Juan-Chama Project water is Albuquerque’s primary future water supply and using San Juan-Chama water to supplement Rio 

Grande flows jeopardizes another environmental program; the City’s plans to use 

San Juan-Chama water for drinking water so it can curtail groundwater pumping 

which is depleting the aquifer. 

The district court decided that Reclamation can reduce annual contract deliveries 

to reallocate water to the minnow and can also use San Juan-Chama water stored 

for future years’ contract deliveries. The San Juan-Chama Project water in Heron 

Reservoir cannot be used at the discretion of the federal government to address Rio 

Grande endangered species problems. Congress specifically created the project to 

provide municipal water supplies and Reclamation’s only authority is to annually 

deliver the water stored for contractors. There is no support in the Project Act or 

the water delivery contracts for the concept that Reclamation can reduce the 

amount of imported Colorado water delivered to the contractors if there is a drought 

downstream in the Rio Grande. Similarly, Reclamation has no authority to deliver 

out of Heron Reservoir more water than is specified for annual contract deliveries. 

The amount of annual contract releases is based on the scientifically determined 

sustainable yield of the project. The water banked in Heron Reservoir for future 

years is not extra water and deliveries greater than the sustainable yield amount 

almost guarantees that the project will eventually dry up. The San Juan-Chama 

Project is uniquely designed to perpetually deliver water and, because there is no 

federal authority to alter its operation or reduce the required contract deliveries, 

Reclamation did not have to consult on the effect of its discretionary actions on endangered species. 

In June of 2003, the Tenth Circuit affirmed the district court. Judge Porfilio wrote 

the decision with Judge Seymour concurring and Judge Kelly dissenting. Because 

of the implications of the decision, all of the defending parties and ten Western 

states have petitioned to have a full panel of all the Tenth Circuit Judges rehear 

the case. The federal agencies, New Mexico entities and Western states are concerned because the majority rejected Reclamation’s, the City’s and the farmer’s settled interpretation of their water delivery contracts and found that certain water 

shortage provisions gave Reclamation discretion to reallocate water. Similar water 

shortage provisions appear in Reclamation contracts throughout the seventeen Reclamation states and have always been understood to mean that when there is a 

shortage of available water, Reclamation is not liable for apportioning drought reduced deliveries. The provisions concern shortages in upstream supply, and do not 

mention downstream needs or endangered species. The majority construed the 

shortage provisions differently and found that they authorize Reclamation to determine how much of the water supply to make available. Hence, for the majority, Reclamation has discretion to allocate water to the minnow and then deliver the remaining available water. The majority does not address how Reclamation can use 

water for endangered species without acquiring a state water right. 

Obviously, no Western state would agree that Reclamation is above state water 

law and can unilaterally modify its contractual commitments to deliver irrigation 

or municipal water stored in a Reclamation project in order to provide that water 

to an endangered species. The federal agencies also reject the discretion the majority found because it implies that all federal natural resource contracts are subject 

to unilateral alteration if the resource is claimed for an endangered species. The 

United States properly argues that the ESA was not intended to change its obligation to honor its contracts and, as the dissent says, the majority decision renders 

the contracts somewhat illusory. 

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The majority opinion seems to be based in part on the erroneous notion that the 

Endangered Species Act provides independent authority to protect endangered species. It is well-settled that the ESA is not a source of new authority and merely directs the exercise of existing federal authority in a manner which will not adversely 

affect endangered species. Thus, the linchpin of an ESA consultation case should be 

a discussion of the discretionary action about which the federal agencies must consult. Because the San Juan-Chama Project Act and the contracts implementing it 

were intended to secure a dependable imported water supply for municipal, industrial and irrigation purposes, fish and wildlife benefits are merely mentioned as incidental to the primary purposes. Therefore, Reclamation is not assigned discretion 

to determine the uses of the water and cannot assign water to endangered species 

before it delivers available water. In fact, the Tenth Circuit has previously interpreted the San Juan-Chama Act to prohibit even a contractor from devoting Project 

water to other uses. The majority justification for this departure from Tenth Circuit 

precedent was three Ninth Circuit cases which found Reclamation discretion because of completely different Congressional authorization and contract status. The 

City is sorely disappointed in the Tenth Circuit’s ruling and intends to pursue its 

appeal while seeking legislation which removes San Juan-Chama water from the list 

of Rio Grande basin solutions for the minnow. 

The Future 

The City’s goal is to establish once and for all that the imported San Juan Chama 

water in Heron Reservoir is for the use by Albuquerque citizens for drinking. If Albuquerque can switch to drinking the San Juan Chama water, the aquifer will be 

able to replenish and the long-term sustainability of the Bosque will be promoted. 

However, removing the San Juan Chama water from the list of assets used to address environmental problems in the Rio Grande Valley is not the City’s only goal. 

The City has always been a partner in Bosque restoration and other riparian environmental projects. The City has a captive breeding program to promote the recovery of the silvery minnow and is participating in the construction of new habitat. 

The City intends to continue with Bosque restoration and its efforts to breed and 

recover the silvery minnow and its habitat. The City intends to work with the environmental community in building the drinking water project diversion structures in 

a way that promote fish recovery and Bosque beauty. If this environmental recovery 

is not aggressively pursued, our children will not know the Bosque as a living forest. 

This is a tragedy that the City is committed to avoiding. 

[A letter submitted for the record by Liz Godfrey, Great Plains 

Organizer, Endangered Species Coalition, Blanco, New Mexico, 

follows:]

Statement submitted for the record by Liz Godfrey, Great Plains Organizer, 

Endangered Species Coalition 

Thank you for the opportunity to submit written testimony for the record in response to the Committee on Resource’s field hearing on ‘‘The Silvery Minnow’s Impact on New Mexico.’’

The witnesses invited by the Committee were greatly slanted toward those opposed to protections for the endangered Rio Grande silvery minnow. We commend 

Ms. Aletta Belin, New Mexico Counsel for Western Resources Advocates, for her 

testimony. 

The Endangered Species Coalition supports a ‘‘made-in-New Mexico,’’ long term 

solution to protect the silvery minnow, the Rio Grande and future generations of 

New Mexicans. After years of over-allocation of water resources in the Rio Grande 

watershed and dry summers, the river has run dry. The Rio Grande is home to the 

last remaining populations of the endangered silvery minnow. The silvery minnow 

is the proverbial canary in the coal mine for the Rio Grande ecosystem. It is a symptom and symbol of a dying river. Because dams and reservoirs have been built 

throughout the river system, the natural flow has been altered. Backwater pools no 

longer form which once provided water and shelter for the minnows in dry years. 

Now if the river runs dry, the minnow will die—there is no longer a safe haven for 

the minnow to retreat to. Due to this dire situation, the courts ruled earlier this 

year to allow water allocation to parties to be altered in order to maintain adequate 

flow in the Rio Grande for the survival of the minnow. 

The Rio Grande is typical of western water issues—too much demand and too little water. Rather than continue to only deal with such situations when a crisis is 

84

at hand, we must come together to develop long-term, cooperative solutions for all 

species, human and non-human alike. 

• Protecting the entire Rio Grande. The court decision does not just prevent the 

extinction of the silvery minnow, one of New Mexico’s last native fish species. 

It also preserves the entire heritage and natural splendor of the Rio Grande. 

The vitality and life giving properties of this amazing river provide the backbone to both New Mexico’s history and its future. 

• What is right about the ESA. Many in politics and the media have called this 

an example of what is wrong with the Endangered Species Act. Quite the contrary, this is what is right with the ESA. The Act has prevented the extinction 

of one of New Mexico’s last native fish species and in doing so, it will prevent 

the continued decimation of the entire Rio Grande ecosystem. The Endangered 

Species Act does not need to be reformed. 

• The decision does not ‘‘take water from the mouths of our children.’’ On the contrary, the Tenth Circuit opinion doesn’t say that all San Juan-Chama Project 

water can be used—indeed the law requires that a ‘‘reasonable amount’’ of the 

Project’s water be delivered to the contractors each year, which is exactly what 

conservationists have always argued to the courts 

INCREASED RIVER FLOWS HELP THE ECONOMY 

A recent study by Professors Frank A. Ward, New Mexico State University, and 

James F. Booker, Siena College, showed that increasing flows in the Rio Grande for 

the silvery minnow will have a positive economic impact on New Mexico. ‘‘Economic 

benefits to New Mexico agriculture were estimated at $68,000 per year.’’ Please see 

Appendix A for the full study. 

WATER CONSERVATION AND THE CITY OF ALBUQUERQUE 

A portion of the discussion at the September 6th hearing centered on the need 

for the City of Albuquerque and its businesses to have ‘‘certainty’’ about its future 

water resources. Blame has been cast on the endangered Rio Grande silvery minnow 

for this lack of ‘‘certainty,’’ however, much of the blame lies on the City itself. 

In 1995, the Albuquerque City Council enacted legislation that set a conservation 

target of 175 gallons per capita per day (gpcd), which constituted a 30% reduction 

from the 250 gpcd that was consumed in 1994. This goal was to be achieved by 

2004. Currently, the City’s water consumption still averages close to 200 gpcd (197 

gpcd is the latest figure). It is clear the City will not be able to achieve the target 

by next year. 

The Administration claims that Albuquerque has achieved a 30% reduction in its 

overall water use. This is based on a per-account methodology (comparison of the 

average account use for each customer class between 1994 and today), which is inherently biased. Average household size is declining, at least 20% over the last 30 

years. Small businesses are increasing over larger commercial enterprises. So there 

is a natural decline in per account averages, regardless of any water conservation 

measures. The City is taking advantage of these natural declines to claim conservation success that is greatly exaggerated. 

While the Administration claims that the ‘‘per capita’’ methodology is flawed because of errors in census data, at least the census data is randomly biased, not biased towards a particular outcome. Furthermore, New Mexico ranked very high on 

the scale of census reliability (higher than most other southwestern states), and yet 

other southwestern cities are still using the per capita methodology. So the City has 

less reason than others to abandon the per capita methodology, and yet it has embraced an incredibly biased method that artificially improves our water conservation 

success. A more cynical individual might hypothesize that the City is eager to appear as if it is achieving its conservation targets—a prerequisite for securing permits from the Office of the State Engineer for further diversions (like the San JuanChama project). 

Unaccounted-for-Water: 

Unaccounted-for-water is water lost to the system between production and billing. 

Although it does include water for fire control and other beneficial uses, it mostly 

consists of leakage from the system through pipeline breakages, etc. Albuquerque’s 

rate of unaccounted-for-water is high, particularly for the desert southwest. It is 

also increasing, from 11.5% in 1994 to 12.3% in 2001. By comparison, a sampling 

of other southwestern cities’ UAW rates for 2001 ranged from roughly 3% in Mesa, 

AZ, to 12.0% in Tucson. However, Tucson has a significantly lower per capita water 

consumption than Albuquerque (in 2001, 170 gpcd vs. 205 gpcd for Albuquerque), 

so the absolute value of unaccounted-for-water in Tucson is actually less than the 

percentage would otherwise indicate. 

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Some disturbing facts about water use in the City of Albuquerque: 

Although most residents in Albuquerque have worked very hard to voluntarily 

conserve, there is a minority of city residents who have actually increased their use 

over the past 10 years (29% of residents have increased their use by an average of 

MORE than 40%). However, the Administration does not support any new mandatory water conservation measures, only voluntary restrictions and incentive-based 

programs. This places a disproportionate degree of responsibility on those who have 

already demonstrated their willingness to conserve, and ignoring those users who 

are wasting water that could benefit the ecosystem and future generations. 

Environmental Protection and the River 

There has also been a lot of misinformation spread about efforts to dedicate our 

drinking water to the river, and the myth of ‘‘stealing water from the mouths of our 

children’’ to save the silvery minnow. However: 

• The San Juan-Chama water is not for drinking. At least 99% of it is not. The 

largest use of San Juan-Chama water will be for watering lawns and golf 

courses. Drinking water will be less than 1% of total use. So instead of talking 

about ‘‘taking water from the mouths of our children,’’ we should be talking 

about ‘‘taking water from the 14th fairway and the vast expanse of residential 

turfgrass that gets walked on once a year during the annual family BBQ’’. 

• People DO think that the river and the Bosque are important. In a recent poll 

conducted by the UNM Institute for Public Policy, water for the river and riparian areas ranked 2nd only to water for drinking and bathing. Water for residential lawns and gardens ranked dead last (6th). So we’re kidding ourselves if we 

think we’re representing Albuquerqueans’ desires by protecting lawns and golf 

courses while letting the river run dry and the Bosque die. 

• Protection of the river, the Bosque and general environmental values are a fundamental policy listed in the City’s Water Resources Management Strategy. 

Recognition of this fact does not change existing policy in any manner whatsoever. In fact, return flows to the Rio Grande to meet environmental needs are 

listed as a key consideration. 

ALL PARTIES MUST WORK TOGETHER FOR LONG TERM SOLUTIONS 

Rather than continue the brinkmanship by all parties, concerned leaders from 

across New Mexico must come together to develop a long-term water plan that will 

benefit every being. There are many things that can be done at the local and federal 

level that can help the situation without having negative consequences to other legislation and ongoing cooperative efforts. These include: 

• More efficient water conservation and management by both rural and urban 

users. The City of Albuquerque is one of the highest municipal-water users in 

the West—205 gallon per capita per day (gpcd) compared to 140-165 gpcd in 

Santa Fe, El Paso, and Tucson. 

• Better water conservation and management practices by both rural and urban 

users. For example, the Middle Rio Grande Conservancy District (MRGCD) diverts two or more times as much water as similar irrigation districts in New 

Mexico. Converting many of the farms in the Middle Rio Grande Conservancy 

District from flood irrigation to sprinkler or drip irrigation systems would greatly reduce MRGCD’s demand and the amount of water it wastes. Water thus 

made available could then be left in the river for the minnow. 

• Federal and state partnerships for problem solving and long term planning. 

• Establish a voluntary water leasing program where water rights holders could 

not use their water in dry years in return for compensation using federal dollars. This program would help to ensure adequate water flows in the river—

while allowing users to keep their water rights while not using their allocations 

in times of drought. 

• Restoration of river and bosque habitat, including the removal of non-native 

vegetation like salt cedar. 

• Establishment of an additional viable population of silvery minnows in a reach 

of the Rio Grande or the Pecos River in addition to the population in the Middle 

Rio Grande therefore creating a second safety net in dry years. Once the minnow is reestablished in multiple locations, it will be able to survive temporary 

river drying in some stretches of the river. 

• Establish a permanent pool of water for endangered species. This water, created 

from surplus supply, new conservation measures, and voluntarily leased allocations, may be stored upstream for use in times of emergency to sustain adequate flows in certain stretches of the Rio Grande. 

86

THE ENDANGERED SPECIES ACT IS NOT BROKEN 

We oppose any efforts to weaken protections for our nation’s threatened and endangered species. The Endangered Species Act of 1973 is one of our nation’s most 

popular and effective environmental laws. In a national survey of people from 

around the country conducted in 2002 by the Biodiversity Project, over three quarters of Americans agreed that, ‘‘We should maintain a strong Endangered Species 

Act because protecting so many different kinds of plants and animals is important 

to the environment and the economy.’’

The Endangered Species Coalition speaks on endangered species issues for about 

400 conservation, religious, scientific, business, sporting and humane groups around 

the country. We request that these comments be submitted into the official congressional record for the hearing. We look forward to working with the Committee on 

Resources on these important natural resource management issues. 

NOTE: An attachment to Ms. Godfrey’s letter has been retained in the 

Committee’s official files. 

[A statement submitted for the record by Steve Harris, Executive 

Director, Rio Grande Restoration, follows:]

Statement of Steve Harris, Executive Director, Rio Grande Restoration 

Mr. Chairman: I am Steve Harris, the Director of Rio Grande Restoration, a river 

protection group, based in Pilar, New Mexico. I am also a participant in the Middle 

Rio Grande ESA Collaborative Program, which is a broad-based collaborative of federal, state, local governments and private interests. This Program is working diligently to recover endangered minnow and flycatcher species in this valley. We have 

received the support of the federal government in this effort, for which we are grateful to Congress and especially to Senators Domenici and Bingman and Representative Wilson. The Program expects to have drafted a Long Term Plan for conservation of the species by the end of this year, in accordance with 

The Rio Grande problem is not an easy one. Like so many Western river basins, 

we have an excess of claims to the river and a limited and wildly variable supply 

of water. It is clear that the entire river ecosystem has suffered and that our ESA 

crisis is a reflection of its continued deterioration. Clearly, fish need water and they 

have not gotten sufficient flows in the past to support them. So, we are working on 

the complexities of altering river management to provide more beneficial timing of 

flows and to acquire supplemental water to release into the river. 

We have concluded that this will require substantial changes in the way we allocate water, not the least of which is the necessity of managing irrigation water in 

the most conservative way possible, with efficiency, austerity and most critically, 

close scheduling of water deliveries to farms. 

Our experience leads us to the conclusion that we can provide the river with supplemental flows, without severe economic dislocations, by carefully crafting a program of water leasing from water users willing and able to forbear their use of 

water for short periods. 

Over the past month, the parties have been negotiating a comprehensive solution. 

These talks have now been suspended pending the consideration of House and Senate riders, which take San-Juan Chama interbasin water off the table. 

What gives this local effort its tremendous sense of urgency is the likelihood that 

in year 2006, there will be virtually no supplemental water available to meet the 

flow requirements of 2003 Biological Opinion. If we do not respond appropriately, 

the year 2006 will witness our biggest ESA-related crisis yet. 

Since 1996, the greatest challenge facing the dozen or more parties who are attempting to recover the Rio Grande silvery minnow, improve its habitat or attain 

ESA coverage for their projects has been how to acquire water to supplement the 

flows of the Rio Grande. Each dry year ( which includes 6 of the past 8) has seen 

the group ‘‘pull a rabbit out of the hat,’’ cobbling together leased San-Juan Chama 

water, negotiating difficult and complex deals with the Rio Grande Compact Commission and conducting daily phone calls to administer a supplemental water program that will satisfy our various needs for ESA compliance and contribute to the 

survival of a beleaguered Rio Grande 

The City of Albuquerque has leased to the federal government over 300,000 acre 

feet of its SJC water in seven years. Those deals are a thing of the past. As the 

City has made clear: in the future they will use that water for a new drinking water 

project, which they plan to have in place by 2006. 

The minnow has survived, year to year, by such arrangements as: 

87

• An agreed order in 2000 provided nearly 40,000 acre feet of supplemental water 

and a whopping 150,000 acre feet of leveraged leases; 

• A Conservation Water Agreement in 2001 provided an additional 50,000 acre 

feet total in 2001 and 2002; and 

• An emergency deal involving relinquishment of New Mexico’s Rio Grande Compact credits has provided 30,000 acre feet this year, is being counted on to provide 30,000 af in 2004 and 20-25 kaf in 2005. 

At the end of 2005, City water will be off the table, New Mexico’s Compact credit 

will be exhausted and the anti-storage provision in Article 7 of the Compact will 

prevent any further storage and release deals. 

The supplemental water ‘‘rabbit’’ is becoming increasingly emaciated. In 2006, 

only the San Juan and Jicarilla SJ-C water can be expected to be available (some 

10,000 acre feet, total) and continued drought in the San Juan basin over the next 

2 years would place even that source in jeopardy. Our alternatives at that point are 

faint hopes: either draconian (taking of City water, shutting down the entire 

MRGCD operation) or nonexistent, unless a deal can be struck and soon. It is not 

hyperbole to say that this is formula for a train wreck and the unresolvable crisis 

will occur during the Richardson Administration. 

Surely Congress and the Governor recognize that this is the likely scenario. Our 

leadership must realize that even if irrigation efficiencies and forbearance proceed 

on the most rapid schedule imaginable, the water may come too late. Suspending 

negotiations at this point, even for 30 days, increases the likelihood of failure. This 

scenario has been anticipated since 1996 and the future scenario cannot now be denied. All these earnest parties, Interstate Stream Commission, City of Albuquerque, 

Conservancy District, Bureau of Reclamation, the plaintiffs and perhaps the Congress itself, will be drawn into a firestorm in which everyone will be badly burned 

This is not a time to suspend negotiations that may, perhaps, resolve this critical 

issue among these parties. The intent and language of the Domenici and Wilson riders are well-known. In themselves, they do not solve the underlying challenge of a 

dry Rio Grande. In reducing the incentive to some parties to stay at the table they 

are actually unhelpful. Combined with the Bureau of Reclamation’s expressed desire 

for more time to consider what the parties have put forward, they may actually 

scuttle the quest for a local solution. I hope not. 

The final fly in the ointment is the issue of the availability of federal money to 

assist in implementing changes the parties might agree to. I submit that, while 

money alone will not solve any western water problem, the lack of money will surely 

preclude a solution. 

Over the next 10 years, leases of water rights will require some $30 million and 

creating conservation in irrigation some $50 million more. This funding will tend 

to be front end loaded. Our economically disadvantaged state can probably be persuaded to find a quarter of this amount The assistance of New Mexico’s delegation 

and of this Committee will critical if we are to avert the looming train wreck. 

[A letter submitted for the record by Hon. Patricia A. Madrid, 

Attorney General, State of New Mexico, follows:]

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1 NESARC is a broad-based coalition of over 100 member organizations, representing millions 

of individuals across the United States that is dedicated to bringing balance back to the application of the Endangered Species Act (ESA). Our membership includes farmers and ranchers, 

rural irrigators, cities, counties, electric utilities, commercial businesses and many other individuals and organizations from all walks of life that are directly affected by the ESA. 

NOTE: The brief attached to Attorney General Madrid’s letter 

submitted on behalf of the State of New Mexico to the U.S. Court 

of Appeals for the Tenth Circuit has been retained in the 

Committee’s official files. 

[A statement submitted for the record by the National 

Endangered Species Act Reform Coalition, Washington, D.C., 

follows:]

Statement of the National Endangered Species Act Reform Coalition1

The National Endangered Species Act Reform Coalition (NESARC) is deeply concerned about the effect of the Silvery Minnow decision and believes that Congress 

must take action not only to resolve the conflict created in the Rio Grande water 

allocation controversy, but also to avoid similar future conflicts. Our members are 

concerned about the effect of this decision on the sanctity of contracts with federal 

agencies and the reasonable expectations for parties holding such contracts, the destabilizing effect of such unilateral reallocation of water supplies on a community’s 

ability to plan for long term water supply needs, and the continued failure to recognize the enormous financial and societal costs that businesses, state and local governments, and individual citizens are being forced to bear to implement federal 

measures taken to protect threatened and endangered species. 

NESARC members believe that all necessary actions must be taken to override 

the Tenth Circuit Court of Appeals decision in the case of Rio Grande Silvery Minnow, et al. v. Keys, No. 02-2254 (10th Cir. June 12, 2003). This decision ruled that 

the Bureau of Reclamation (Bureau) has ‘‘discretion’’ to unilaterally disavow water 

delivery contracts with irrigators and other water users in order to provide that 

water for the benefit of the silvery minnow, a species listed as endangered under 

the federal Endangered Species Act (ESA). Further, the court held that the Bureau 

must use water acquired from a inter-basin transfer for the benefit of the minnow. 

This decision mandates that a federal agency alter the natural habitat of a species 

and places the perceived needs of the silvery minnow over human needs. 

As the House Resources Committee considers legislative options to address this 

matter, NESARC urges the Committee to address the underlying problems in the 

ESA that contributed to the Silvery Minnow decision. What is happening to the citizens and communities of New Mexico as a result of the Silvery Minnow decision is 

not an isolated case. We need ESA reform that not only ensures that the federal 

government lives up to its existing commitments to provide water to the citizens of 

New Mexico but also protects citizens and communities throughout the United 

States from having the ESA used to unilaterally reallocate resources—without respect to the effect of such actions on communities, businesses, and human needs. 

If allowed to stand, the Silvery Minnow decision would destroy the contractual relationships between the Bureau and the water users they serve. The decision also 

would usurp, throughout the West, the States’ role in allocating water rights. By 

entering into contracts with the Bureau, water users expect a reliable source of 

scarce water resources. Water users have a right to expect that the Bureau will 

honor these contractual obligations. 

NESARC members are greatly concerned with the court’s decision to reallocate an 

inter-basin transfer intended for the citizens of the City of Albuquerque to provide 

flow augmentation for the silvery minnow. Inter-basin transfers of water are typical 

in the West as a means to transfer scarce resources from areas of surplus to areas 

of need. Such transfers are essential if the needs of water users in the arid West 

are to be met. If inter-basin water can be confiscated and unilaterally reallocated 

from state water right holders to serve a federal obligation to augment flows in a 

river system that has solely acted as a delivery channel for the inter-basin transfer, 

as the majority opinion holds, inter-basin transfers will themselves become endangered. 

While this decision involved specific operations by the Bureau, NESARC also is 

concerned that this decision could have serious repercussions for parties holding federal permits, leases or contracts involving the use of federal lands. In its broadest 

terms, the Tenth Circuit’s use of the ‘‘unmistakability’’ doctrine could allow the 

modification, if not complete abrogation, of existing federal permits, leases and/or 

90

contracts. NESARC has long maintained that the ESA, as interpreted by the courts, 

has lost its equilibrium with the scales tipped in favor of taking actions for the perceived benefit of listed species without regard to the adverse consequences to the 

communities and individuals affected. Without further action to reverse this decision, the City of Albuquerque will be joined by more communities and businesses 

in facing similarly unbalanced and harmful actions under the current, unrefined 

and overly-broad Section 7 consultation process. 

NESARC does not believe that the ESA, and Section 7 in particular, was intended 

to apply the way the majority opinion has interpreted it. The dissenting opinion in 

Silvery Minnow expressed it best: ‘‘Under the court’s reasoning the ESA, like Frankenstein, despite the good intentions of its creators, has become a monster.’’

[The response to questions submitted for the record by The Honorable Anthony Ortiz, Governor, Pueblo of San Felipe, follows:]


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February 5, 2004

VIA FACSIMILE: (202) 226-6953

The Honorable Richard Pombo 

Chairman 

Committee on Resources 

Subcommittee on Water and Power 

1522 Longworth H.O.B 

Washington, DC, 20515

Re: Follow-up Questions: House Committee on Resources Oversight Field Hearings 

on the Silvery Minnow

Dear Chairman Pombo:

Thank you for the opportunity to testify at your Committee’s field hearing in 

Belen. I write to respond to the two questions you presented to me in your letter 

dated September 5, 2003. As general background in response to the questions, I enclose a position paper the Pueblo has sent to congressional members. See Exhibit 

A. This paper is in support of the Pueblo’s request that the senior time immemorial 

Pueblo water rights be included specifically in any legislative protections extended 

to other junior water rights holders in New Mexico regarding the endangered silvery 

minnow. 

With respect to the Committee’s questions and the Pueblo of San Felipe’s response 

to these questions: 

Question 1: The House-passed Fiscal Year 2004 Energy and Water Development Appropriations bill includes a provision that would prohibit the release of water from the San Juan Chama Project or Middle Rio Grande 

Project for the purpose of complying with the Endangered Species Act. 

What impact would the provision, if enacted, have on the Pueblos? 

Answer: If enacted, the provision would expose the Pueblo’s senior federal reserved water rights to increased risk of being taken without Pueblo permission for 

silvery minnow purposes. The Pueblo receives some water from the Middle Rio 

Grande Project (which Project receives some San Juan Chama contract water),and 

also pursuant to the Pueblo’s senior federal water rights to Rio Grande waters and 

related storage in El Vado Reservoir. If Congress prohibits the release of water from 

the San Juan Chama Project or the Middle Rio Grande Project for the purpose of 

complying with the Endangered Species Act, little water exists in the Rio Grande 

System other than the Pueblos’ senior water rights. This is water the Pueblos need 

for irrigation of lands they have farmed since time immemorial, and for other purposes. The Department of the Interior has advised us that it may have no choice 

but to use Pueblo water for the endangered silvery minnow if Congress eliminates 

San Juan Chama or Middle Rio Grande Project water as a water source for the minnow. This result would be unfair and is inconsistent with the United States trust 

responsibility to protect the Pueblo’s federal water rights. 

Question 2: Are the Pueblo’s full participants in water management and 

planning activities in the Middle Rio Grande Basin? 

Answer: The Pueblos do not waste water. We value water and the entire ecosystem. The Pueblo of San Felipe manages the lands and water of its reservation, 

including the Rio Grande River, to ensure these resources are available for future 

generations. The Pueblo is working with the United States, the State of New Mexico, and local governments to restore and protect the Rio Grande river and its surrounding habitat. 

Significantly, several of the Middle Rio Grande Pueblos were exempted from the 

federal silvery minnow critical habitat designation because the United States Fish 

& Wildlife Service recognized the Pueblo management plans and practices are superior to any that could be established as part of a federal habitat designation. Pueblo 

of San Felipe staff has participated in numerous meetings and activities of the Middle Rio Grande Endangered Species Act Collaborative Program, and many other 

river and habitat restoration initiatives. And, importantly, San Felipe representatives are taking the lead on appropriate Pueblo and Tribal provisions in the state 

water plan. 

The Pueblo of San Felipe is also working hard to assess its federal water rights 

claims so that we are prepared to participate in a comprehensive water rights solution that also benefits the minnow. The Pueblo has little resources of its own to devote to this effort. The Pueblo has sought federal funding for legal and technical assistance to finalize its water claim. It is absolutely critical that the Pueblo receive 

the federal funding it has requested. The funding is necessary for the Pueblo to continue our substantial efforts in planning and management activities, including the 

92

development of a comprehensive settlement to resolve our water rights. This type 

of resolution will provide a much greater level of certainty for all of the junior water 

users that also want to plan and manage their junior water rights. 

Thank you again for you interest in our water rights. Please let me know if you 

need anything further from the Pueblo. 

SINCERELY,

Anthony Ortiz, Governor, Pueblo of San Felipe

cc: Representative Heather Wilson 

Representative Tom Udall 

Representative Steven Pierce 

Senator Pete V. Domenici 

Senator Jeff Bingaman

Enclosure: 

PUEBLO OF SAN FELIPE

SILVERY MINNOW RIDER

POSITION PAPER

OCTOBER 1, 2003

• Pueblos have federal rights to the water of the Rio Grande with a time immemorial priority for irrigation, in-stream flows, and other needs of their homeland for the present and future generations. 

• Over twenty years ago the Pueblos negotiated the right to store part of Pueblo 

water in El Vado Reservoir. 

• The City of Albuquerque (and other municipalities with San Juan Chama delivery contracts) and the Middle Rio Grande Conservancy District (‘‘MRGCD’’) also 

store water in El Vado Reservoir and other reservoirs. 

• As of this date, the only water available for release into the Rio Grande is that 

water stored in El Vado Reservoir and other reservoirs. 

• Releases of water from El Vado and other reservoirs are necessary to restore 

the flow of the Rio Grande to a level that will ensure survival of the silvery 

minnow, in accordance with the Endangered Species Act. 

• The United States Court of Appeals for the Tenth Circuit has ruled that El 

Vado and other reservoir water stored for Albuquerque and MRGCD must be 

released in accordance with the needs of the silvery minnow. The Pueblos’ water 

rights are not at issue in this litigation. 

• Senator Domenici and Representative Wilson have each introduced language to 

protect Albuquerque and MRGCD from having their El Vado water taken for 

minnow purposes without their consent. 

• The Middle Rio Grande Pueblos also need protection of their El Vado water 

storage and other senior water rights to ensure that such water is not taken 

for minnow purposes without the consent of the Pueblos. 

• If the Pueblos are not included in the protective riders, the Pueblo water in El 

Vado Reservoir and other Pueblo water rights will be at great risk. 

• The Pueblo water rights are senior to the storage and other water rights of Albuquerque and MRGCD. 

• It is unfair to protect the junior water rights holders, but leave the most senior 

water rights holders unprotected and at risk. 

• For this reason, the Pueblo of San Felipe respectfully requests to be included 

in the protective riders. 

• Additionally, the Pueblo strongly believes that no permanent ‘‘legislative fix’’ 

should be passed as an appropriations rider until after hearings are held to determine the legal and practical effects of the proposed rider on the complex 

array of federal and New Mexico state water rights and resources. 

• If the rider(s) move forward without hearings, please add the following language to protect the Pueblo water rights along with the other (more junior) 

water rights already protected: 

The Secretary of the Interior is prohibited from obligating funds or exercising discretion, if any, to prevent, reduce, or restrict storage, releases, 

diversions, or uses of Rio Grande Basin water by or for the benefit of any 

of the six Middle Rio Grande Pueblos (Cochiti, Santo Domingo, San 

Felipe, Santa Ana, Sandia and Isleta) in order to meet the requirements 

of Section 7 of the Endangered Species Act (16 U.S.C. § 1536). 

93

[A statement submitted for the record by the Rio Grande Water 

Rights Authority, follows:]

Statement submitted for the record by the

Rio Grande Water Rights Association 

In New Mexico, a number of plans have been advanced to provide water for the 

preservation of the silvery minnow. 

Nearly all such plans share a common fallacy: that agricultural irrigators in the 

Middle Rio Grande Valley can achieve great efficiencies at low cost and with scant 

impact on current crop production, existing riparian habitat or aquifer recharge. The 

fallacy continues that these efficiencies will allow water to be taken from the 

irrigators to serve the minnow. 

The thought is interesting; unfortunately, when the facts are known, it is no more 

than a fantasy based on flawed reasoning and misinformation. 

The mistake: 11 acre-feet 

Central to the fallacy is the mistaken notion that irrigators in the Middle Rio 

Grande Valley are taking and using 11 acre-feet of water per acre that is irrigated. 

If this were true, much of the Middle Rio Grande Valley would be laboring under 

flood conditions the better part of the year. Houses, schools, buildings and roads 

would be swamped. Crops, rather than being parched, would literally be drowning 

in water. 

As we know, this isn’t happening. How did the misunderstanding arise? What are 

the facts? 

The real number: 3.8 acre-feet 

2002 is the most recent year for which we have complete information on irrigation 

in the Middle Rio Grande Valley. 

The Middle Rio Grande Conservancy District (MRGCD) is the body that administrates the irrigation system for the area, which stretches from Cochiti Dam on the 

north to the north boundary of Bosque del Apache on the south. 

According to MRGCD gages that yield an accurate measurement of water used in 

its system, irrigators in the Middle Rio Grande Valley in 2002 used 268,000 acrefeet of water for 70,000 acres, or only 3.8 acre-feet per acre irrigated. 

Understanding the numbers 

Understanding the basis for the 3.8 acre-feet—and the 11 acre-feet—requires a 

rudimentary understanding of how the irrigation system works. 

The MRGCD irrigation system is essentially a three-step system: 

1. It diverts water from the river; 

2. It delivers the water to the irrigation canals, ditches and fields; and, then, 

3. It returns the water that isn’t used to the river. 

The water diverted in step 1 is called the gross diversion. The water returned in 

step 3 is called the return flow. When we subtract the return flow from the gross 

diversion, we arrive at the amount of water in step 2, the net diversion. That is: 

gross diversion -- return flow = net diversion. 

The net diversion is the amount actually used by the irrigation system. 

The MRGCD operates four diversion/return flow divisions. For all divisions, in 

2002, as recorded by the MRGCD’s gages, the gross diversion for the Middle Rio 

Grande Valley totaled 319,407 acre-feet of water, and return flow totaled approximately 60,000 acre-feet. Therefore, the net diversion, the amount actually used by 

the irrigation system, totaled about 268,000 acre-feet of water. Given the 70,000 

acres irrigated, this equates to approximately 3.8 acre-feet of water per acre. 

Correcting the Fallacy 

A former Office of the State Engineer official had, at some time, announced that 

the MRGCD ‘‘diverted’’ about 11 acre-feet of water per acre irrigated. Unfortunately, 

the OSE official was using the number for the gross diversion of some past year. 

It was, if you will, a simple bookkeeping error. But the number was dramatic and 

it gave rise to hopes that ‘‘new’’ water could be found through simply improving efficiencies in the MRGCD’s irrigation system. 

Efficiencies and impact 

The real numbers tell a different story about efficiencies and environmental impact, and suggest that more caution be taken in seeking efficiencies in the MRGCD 

irrigation system. 

In 2002, the water used by the MRGCD irrigators went to crops, riparian habitat 

and aquifer recharge. The MRGCD estimates consumption this way: 

94

• Crops consumed approximately 150,000 acre-feet; • Riparian habitat (trees and other vegetation along the 1,238 miles of MRGCD 

waterways) consumed approximately 11,000 acre-feet; and, • Aquifer recharge consumed 47,000 acre-feet. 

Crop Irrigation: Already Efficient 

According to irrigation engineers, efficiency of crop irrigation in the Middle Rio 

Grande Valley can be mathematically expressed as a ratio: 

water consumed by crops divided by net water diverted; or, 

150,000 acre-feet divided by 268,000 acre-feet; or, 

150,000 divided by 268,000 = .559 or .56. 

This means that the MRGCD is 56% efficient. 

In 1995, the New Mexico Office of the State Engineer reported that most irrigation systems in the state were about 50% to 55% efficient. At 56% efficiency, the 

Middle Rio Grande irrigators are at the high end of the efficiency range for irrigation systems in New Mexico. Therefore, suggesting that huge efficiencies can be reasonably achieved in crop irrigation may be misleading, especially if current crop production is maintained. 

Riparian Habitat: Efficiency vs. Environment 

The 1,238 miles of waterways that comprise the MRGCD irrigation system include delivery canals, return-flow outfalls and the Rio Grande itself. 

These return-flow outfalls are generally unlined and the consequent saturation of 

the surrounding earth has fostered a riparian habitat, which is better known as the 

bosque. 

In simple terms, this is an area where efficiencies can be gained. Canals and return-flow outfalls and, perhaps, even sections of the river can be lined with concrete. 

This would prevent seepage into the earth. 

However, it would also destroy the bosque, which is host to a variety of plant and 

animal species. Consequently, any thought of the potential benefit to efficiencies has 

to consider both the enormous dollar cost of lining canals with concrete and the environmental impact. 

Aquifer Recharge: A Critical Benefit 

In addition to surface water, the Middle Rio Grande Valley is heavily dependent 

on water from the aquifer. It is no secret that experts believe that we are pumping 

water from the aquifer at a much faster pace than we are recharging it. 

This imbalance has raised concerns of eventual depletion of the aquifer. In the 

near term, it raises concerns of subsidence—surface settling—that could have disastrous effects on infrastructure and real estate, especially in the population centers, 

such as Albuquerque. 

Currently, the 47,000 acre-feet that seeps into the ground from the MRGCD irrigation system is estimated to be the source for about half of the recharge to the 

aquifer. 

The MRGCD and the irrigators it serves consider the recharge to be a critical benefit to the Middle Rio Grande Valley. 

We urge that any plan to improve efficiencies in either conveyance of water or 

irrigation of fields should consider the effect on aquifer recharge. 

Dangerous misinformation 

Given the very real dangers—potential destruction of the bosque, failure to recharge the aquifer, reduced crop production—that would arise from attempts to take 

water from the irrigators in the Middle Rio Grande Conservancy District, we cannot 

allow the mistaken notion that they are taking and using 11 acre-feet per acre to 

persist. It can only be viewed as dangerous misinformation and needs to be corrected before any further planning can take place. 

And, we also need to dispel the notion that the irrigators themselves are not seeking efficiencies on their own. 

Ongoing improvements 

Since 1996, the MRGCD has been improving the efficiency of its water conveyance 

system. New gages have been installed to accurately measure diversions and return 

flows. New automated water gates have been installed at several critical points and 

plans are underway to install more automated gates at 40-plus locations. The 

MRGCD is also investigating how scheduling and rotation of irrigation water deliveries to farms can be improved. 

The improvements in efficiency so far have been dramatic. Gross diversions have 

steadily decreased, dropping from 475,835 acre-feet in 1997 to the 319,407 diverted 

in 2002. The MRGCD is projecting a gross diversion of 275,149 acre-feet for 2003. 

95

Other considerations 

Other considerations are involved in the potential taking of water from the agricultural irrigators of the Middle Rio Grande Valley, but they are outside the scope 

of this testimony. However, it should be briefly noted that the taking of water, held 

by individual water rights, is the same as taking other personal property and should 

be subject to the same process and protection. And, any scheme to provide water 

for the silvery minnow should distribute the burden equally among irrigators, municipalities and pueblos alike. No one should be exempt. No one should be asked 

to bear the whole burden. And water should never be taken by fiat. 

[A statement submitted for the record by Subhas Shah, Chief 

Engineer, Middle Rio Grande Conservancy District, Albuquerque, 

New Mexico, follows:]

Statement submitted for the record by Subhas Shah, Chief Engineer,

Middle Rio Grande Conservancy District 

Chairman Pombo: Thank you for the opportunity to have Dr. Thomas A. Wesche 

provide oral testimony to the Committee on September 6. The Conservancy District 

also offers the following written testimony for consideration by the Committee. 

1. Contrary to the claim made by Alletta Belin at the hearing on September 6, 

the Middle Rio Grande Conservancy District has never consumptively used ‘‘eleven 

acre-feet of water per acre of irrigated land.’’ That claim is based on a distortion 

of reports from the U.S. Bureau of Reclamation. Gages along the Rio Grande that 

measure water in the river and water diverted from the river for irrigation show 

that in 2002 the Conservancy District diverted from the Rio Grande a total of 

268,000 acre-feet of water. That is a ‘‘net’’ number, arrived at by subtracting from 

the total or ‘‘gross’’ amount diverted, the amount of water returned to the river as 

‘‘return flow.’’ Approximately 60,000 acre-feet of diverted water went back to the 

river as return flows at various points along 160 miles of the middle Rio Grande 

valley. Approximately 3.8 acre-feet of water were diverted from the river in 2002 

for each of the 70,000 acres of irrigated land in the middle Rio Grande valley. In 

2002, crops consumptively used about 150,000 acre-feet of water, or about 2.2 acrefeet of water for every acre of irrigated land in the Conservancy District. About 

11,000 acre-feet of water was consumed by the trees and other ‘‘riparian’’ vegetation 

along the 1,238 miles of Conservancy District canals and drains (an estimate based 

on field surveys and published estimates of vegetation water use). Approximately 

47,000 acre-feet of water seeped into the ground to recharge the aquifer. In addition 

to supporting valuable wildlife habitat along the canals, seepage from unlined canals is the source of about half the recharge to the aquifer in the middle Rio Grande 

valley, and is a direct benefit of the Conservancy District’s water conveyance system. The gage numbers are available to the public on gage readings from various 

parts of the system, which can be found at: 

http://usbr.gov/pmts/rivers/awards/Nm/rg/RioG/gage/schematic/

SCHEMATICnorth.html 

http://usbr.gov/pmts/rivers/awards/Nm/rg/RioG/gage/schematic/

SCHEMATICsouth.html 

http://waterdata.usgs.gov/nwis 

http://www.spa.usace.army.mil/wc/adbb/riogrt.htm 

The amounts of water consumed by crops and riparian vegetation along the canals 

are estimated based on the area of irrigated land and by calculating differences in 

gage numbers as water moves through the complex system that includes the river, 

the canals, the return flows, and the shallow aquifer. Seepage and recharge estimates from the 1997 Middle Rio Grande Water Assessment. Experts from Federal 

and State agencies, private consulting firms and universities have examined the 

Conservancy District’s system, and most agree with the picture of Conservancy District water use portrayed here. Regarding efficiency and conservation, 

Conservancy District ‘‘efficiency’’ refers to the relationship between the amount of 

water diverted from the river (in 2002 that was 268,000 acre-feet), and the amount 

of water consumed by crops (in 2002 that was about 150,000 acre-feet): 150,000 divided by 268,000 = 0.559, or 56%. In 1995, the New Mexico State Engineer reported 

that most irrigation systems in New Mexico were about 50% efficient, so the Conservancy District is in that way similar to other irrigation systems in the state. It may 

be possible to make the Conservancy District more efficient, but there are economic 

as well as ecological costs, and as several experts have repeatedly pointed out, efficiency does not create ‘‘new’’ water. Some of the planning, engineering, and conVerDate 0ct 09 2002 09:11 Feb 06, 2004 Jkt 088533 PO 00000 Frm 00099 Fmt 6633 Sfmt 6621 J:\DOCS\89218.TXT HRESOUR1 PsN: KATHY
96

struction required to increase the efficiency of the Conservancy District is already 

done, and additional work will be expensive. The ecological costs of a more ‘‘efficient’’ Conservancy District, with miles of cement-lined canals, would result from reduced diversions which would produce smaller return flows to the river, less water 

for riparian vegetation along the canals, less seepage from the canals, less recharge 

to the aquifer, and less water available in the river for the endangered Rio Grande 

silvery minnow. The results of Conservancy District efficiency improvements to date 

are dramatic, as illustrated below in an analysis of Conservancy District diversions 

from the Rio Grande, between March and August, from 1997 to the present.

Year

2003

2002

2001

1997

Gross Diversion 

(in acre-feet, without subtracting return flows) 

March through August Only

275,149

319,407

372,387

453,835

NOTE: ‘‘Gross’’ diversions are used in this analysis because they best illustrate 

the kinds of efficiency improvements made to date by the Conservancy District, 

most of which have focused on reducing the volume of water diverted from the Rio 

Grande. We estimate that, while ‘‘gross’’ diversions have been dramatically reduced, 

it is unlikely that ‘‘net’’ diversions (that is, ‘‘gross’’ diversions less return flows) have 

changed as much. This is because ‘‘net’’ diversions are more closely tied to crop consumptive use, seepage, and canal surface evaporation, none of which have changed 

much over the last few years.

The result: Gross diversions from the Rio Grande (without considering return 

flows) have been reduced by 39%, or approximately 179,000 acre-feet annually. 

2. The issue raised by the decision of the U.S.10th Circuit Court of Appeals in 

Minnow v. Keys is the most basic issue of federalism. When the drafters of our Constitution prepared the document that allocates power between the Federal government and the States, one issue was abundantly clear: Allocation of property between 

private parties, power to assess local taxes and sustain State government, and the 

zoning and development of communities, were all left to the States. While overall 

regulation of interstate commerce was within the purview of the Federal government, the rights of individuals to hold property were to be governed by the States, 

consistent with the 10th Amendment to the Constitution. To promote equal protection of the laws, Congress may choose to regulate State actions that result in discrimination. To protect privacy or freedom of religion the Federal government has 

a clear role. The Endangered Species Act, as interpreted by the environmental 

plaintiffs in Minnow v. Keys, would take Congress role beyond the protection of 

Constitutional rights and use Federal legislation as a sword to impose Federal values on State entities, even going so far as to take property without compensation, 

in violation of the 5th Amendment to the Constitution. As interpreted by the environmental groups in Minnow v. Keys, the Endangered Species Act, by its own force, 

and without benefit of any Constitutional basis, would provide that the property 

rights of individual farmers under State law could be negated without compensation, if the Congress deems this necessary. Likewise, the regulatory rights of the 

States to allocate property could be nullified if Congress so chooses. This principle 

has no limits. Suppose Congress decided that municipalities should have no less 

than 30% open space and should all have a certain level of public transportation 

and should plant certain kinds of trees. To achieve this result, a Federal agency 

would simply have to order municipal governments to alter their zoning laws and 

those who have constructed buildings to the contrary to tear them down. Thus, 

while the context of the basic dispute on which the Committee is holding hearings 

involves Federal nullification of State water law and rights in water by the federal 

Endangered Species Act, the principle is without limits. This Committee should 

adopt the view that there is no place within our Constitutional framework for laws 

that use adoption of Federal policy to take property rights of individuals or nullify 

State choices as to the allocation of these rights: The principle promoted by the environmental plaintiffs yields the exact opposite result. The Committee should find 

that the intent of Congress was to allow jurisdiction to change regimes of water flow 

only where there is an express deferral by the States for this result and only if there 

is compensation for those who have relied upon their property rights under state 

97

law to create farming communities and invest their capital. There is a model for 

this result. It is the Federal reserved water rights doctrine adopted and applied by 

the U.S. Supreme Court for fifty years. It holds that Congress can reserve water 

for a species only if a) this was the express intent of Congress, and b) only to the 

degree it does not preclude the use of senior water rights in the stream system. See 

Cappaert v. United States, 426 U.S. 128 (1976). I would urge you to consider this 

methodology in your deliberations. 

3. The recent ruling of the U.S. 10th Circuit Court of Appeals in the case of Minnow v. Keys, permits the Bureau of Reclamation to reduce contract deliveries of native Rio Grande water, and non-native San Juan-Chama water, for the benefit of 

endangered species, including the Rio Grande silvery minnow. This ruling supports 

the notion that more water is necessary to conserve the silvery minnow, and that 

by simply releasing more from storage, no matter the source or the probability of 

future supply, the species will be protected. However, history does not support the 

assertion that intermittency, river drying, and reduced flows are the principal 

causes for the current status of the silvery minnow. For example, Rio Grande 

stream gage records show that mean monthly flows have been substantially higher 

and the occurrence of zero-flow days substantially lower during the recent period 

when minnow numbers have apparently declined sharply. While the numbers of silvery minnow have apparently declined, river flows have been substantially augmented and the number of zero-flow days reduced. These and other hydrologic facts 

show that the strategy of simply releasing copious amounts of water down the middle Rio Grande channel to benefit the silvery minnow has failed. Moreover, critically 

low water supply levels in upstream reservoirs dictate that such wasteful practices 

be discontinued in favor of the more holistic approach that is incorporated in the 

March 17, 2003, Biological Opinion of the U.S. Fish and Wildlife Service. That Opinion’s single Reasonable and Prudent Alternative recognizes the hydrologic reality of 

the middle Rio Grande by differentiating stream flow prescriptions between dry, 

normal and wet years, acknowledges that river drying has occurred historically and 

will continue in the future, and places the priority for management in those river 

reaches (such as the Albuquerque reach) where flow can be provided most effectively 

and efficiently, while maintaining other necessary, and legitimate, water uses. Furthermore, the Opinion effectively supports the necessity, at least in the short term, 

for refugia, hatcheries, and other types of sanctuaries to protect and conserve the 

species while wild habitat is being enhanced. Such a strategy will allow all parties 

to move past the single, divisive issue of keeping the river wet at all costs and on 

to the important business of recovering the Rio Grande silvery minnow. 

4. The Middle Rio Grande Endangered Species Act Collaborative Program (the 

‘‘Collaborative Program’’), while still in the formative stages of what will be at least 

a 10-year effort, is an effective and useful approach to the complex issues of water 

and endangered species in the middle Rio Grande valley. This collaborative process 

is attempting to define complex phenomena with incomplete data, test hypotheses 

that are still incompletely defined, and adaptively manage under conditions of an 

extreme, multi-year drought. To date, we have been unable to draw firm conclusions 

because the data is either missing or equivocal. However, complex problems such 

as those faced here in the middle Rio Grande typically require complex solutions 

that cannot please everyone. Nevertheless, the collaborative approach now in place 

in the middle Rio Grande provides a reasonable forum from which realistic solutions 

can evolve. 

5. The condition of silvery minnow habitat in the reach of the Rio Grande designated as ‘‘critical habitat’’ is severely degraded. Therefore, recovery of the silvery 

minnow is unlikely unless habitat enhancement measures, such as those being developed by the Collaborative Program, are implemented. In its present condition, 

much of the river is narrower, deeper, and swifter than it was historically. Habitat 

diversity has been substantially reduced, secondary channels have been cut-off from 

the main channel and lost, substrate coarsening has occurred with gravels and 

cobbles replacing silts and sands in many locations, and important elements of 

structural complexity, such as large woody debris, have been flushed from the system without replacement. The result is a substantial reduction in habitat quantity 

and quality for the silvery minnow. Solutions that focus on enhanced flow alone will 

not return habitat for the silvery minnow to the middle Rio Grande. Well-conceived, 

carefully-designed, and properly-implemented habitat enhancement measures, such 

as those prescribed in the Biological Opinion and now being implemented through 

the Collaborative Program, are needed to re-connect the Rio Grande with its floodplain, widen the channel to promote habitat diversity, and increase overall complexity. These high-priority measures must have the funding necessary for them to 

proceed, if the silvery minnow is be recovered. 

98

1 In Rio Grande Silvery Minnow, et al. v. John W. Keyes et al. (Decision 10th Cir., June 12, 

2003) at 44. 2 Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (10th Cir. 1981) 

6. At the present time, there is no river-wide, representative, statistically-valid 

sampling program to yield a quantitative description of the silvery minnow population, illuminate the temporal and spatial distribution of the endangered species 

as well as the other members of the fish community, measure the successes and failures of the Collaborative Program, and chart progress toward the (yet-to-be-established) recovery targets. Such a population sampling program must be initiated immediately, and it must: 1) Sample habitats throughout the middle Rio Grande in 

proportion to their availability; 2) Use appropriate fish collection methods, procedures and gear for all habitat types present within the river; 3) Establish a sampling frequency sufficient to detect seasonal distribution shifts but not so repetitive 

that undue sampling mortality and species behavior modifications occur; 4) Be thoroughly documented and reproducible; and 5) Produce quantitative results of sufficient statistical rigor to allow valid temporal and spatial comparisons to be made 

and progress toward recovery to be documented. Over the past year, the Science 

Subcommittee of the Collaborative Program has spent considerable time debating 

this matter, and that debate must conclude over the next few months in the development of a silvery minnow population monitoring effort that will meet the requirements outlined above. 

[A statement submitted for the record by Dr. William M. Turner, 

Trustee, Lion’s Gate Water follows:]

Statement of Dr. William M. Turner, Trustee, Lion’s Gate Water 

Mr. Chairman and Members of the Committee, I appreciate your holding the 

record open for 10 days to allow Supplemental Written Testimony to be entered into 

the record. concerning the decision of the U.S. Court of Appeals for the Tenth Circuit in Rio Grande Silvery Minnow v. John W. Keys 1, and its impacts on New 

Mexico. 

I am Dr. William M. Turner, Trustee of Lion’s Gate Water which does business 

in New Mexico. I have been a consulting hydrologist in New Mexico for nearly 35 

years and I was the expert witness in The Jicarilla Apache Tribe v. The United 

States et al. 2that was cited so frequently with approbation in the Silvery Minnow 

decision. As the Natural Resource Trustee for the State of New Mexico under Governor Johnson, I was directly responsible for Governor Johnson’s creation of the 

Governor’s Blue Ribbon Task Force on Water on which I served for six years. I am 

also the Trustee of the WaterBank Trust, a not-for-profit organization that seeks to 

find news ways of dealing with water and environmental issues. 

First let me apologize for not having been with you at your hearing. I have read 

all of the printed statements and find no real solutions presented by Committee 

Members or invited presenters. I agree with comments made by the Committee that 

we require a reliable, long term water supply that will eliminate the contentious 

struggle now in progress. The San Juan-Chama Project water is an unreliable 

source for many reasons. 

I agree with Chairman Pombo (R. Ca.) that there is no long-term certainty in our 

present water supply picture. Our future growth requires a stable and reliable 

water supply for all users including the environment and economic development. 

The lack of certainty will discourage investment in New Mexico. 

As Natural Resources Trustee for New Mexico charged with replacing damaged 

water resources of New Mexico, I hosted an international conference in Albuquerque 

in cooperation with Sandia National Laboratory on October 29, 2002. The conference 

explored the use of new tools for allocating limited water resources including game 

theory, complexity theory and systems analysis. These technologies have never been 

integrated. And, with the exception of systems analysis they have only rarely been 

used to solve closed-system water allocation problems. These efforts came to an end 

when Governor Richardson replaced me as the Trustee. Under the WaterBank 

Trust, these efforts can continue with adequate funding which I estimate at $5 million over a five year period. 

The water contretemps now playing itself out in the Rio Grande is has not been 

caused by the silvery minnow and environmentalists. The blame rests squarely on 

the shoulders of the U.S. Bureau of Reclamation and the acquiescence of State and 

other Federal agencies in their mismanagement of the water and it is the silvery 

99

3State v. Meyers et al. 64 N.M. 186, 326 Pd 1075

4 ‘‘The beneficial use of water shall be the basis, the measure and the right to the use of 

water.’’ 5Opinion Re Threshold Legal Issue No. 3 in State of New Mexico ex rel. State Engineer and 

Pecos Valley Artesian Conservancy District v. L.T. Lewis, et al., United States of America, Nos. 

20294 & 22600 Consolidated filed with the Fifth Judicial District Court on November 4, 1997 

at 8:35 AM 

minnow they have singled out as the scapegoat. There is no water shortage in New 

Mexico. 

The Four ‘‘Cs’’ of President Bush’s Water 2025 Plan, namely, Cooperation, Communication, Collaboration for the Conservation of water are the new buzzwords. The 

Water 2025 Plan is not going to find any real solutions because the struggle is 

among multiple hydrohegemons for control the same drops of water no matter how 

politely they behave. As long as stakeholders continue to think inside the box, so 

to speak, no new solutions will be found. We must face realty. We are dealing with 

a finite resource and all of the suggestions to date are zero sum games. That is, 

there are winners and there are losers. There is really nothing new on the table. 

I think we must take our lead from Mark Twain who said that the solution to 

water problems is more rain. No, I am not advocating cloud seeding. I would rather 

paraphrase Mark Twain by saying that the solution to our present water problems 

is conservation and less evaporation. And, if we do not learn the lesson of recent 

history and read the message now on the wall, we will repeat our errors far in the 

future. 

In the Jicarilla case, Albuquerque proposed to store its San Juan-Chama water 

in Elephant Butte Reservoir until it was needed; then, it would recover it by bookkeeping exchanges with the Elephant Butte Irrigation District. The trial was in 

1979 and I modeled the surface water system of the Rio Grande on an Apple II+ 

computer including the surface area-volume relationship of Elephant Butte Reservoir. I simulated the various scenarios presented by the government and the City 

of Albuquerque and I was able to show that by the time Albuquerque recovered its 

stored water a minimum of 93 percent would have been lost to evaporation. 

It is widely recognized by the State Engineer, New Mexico Interstate Stream 

Commission, U.S. Bureau of Reclamation, U.S. Army Corps of Engineers and water 

scientists that open reservoir consumptive evaporation in New Mexico from reservoirs containing more than 5,000 acre feet of storage is up to 591,000 acre feet 

per year. This must be compared to total municipal and industrial usage of 195,000 

acre feet per year and total silvery minnow usage of say 20,000 acre feet per year. 

My calculations using current published data and some of the data that supported 

the decision in the Jicarilla case suggest that, at reservoir full conditions, evaporation from Cochiti, Elephant Butte and Caballo alone is about 392,000 acre feet 

annually. Of course, it is less now that these reservoirs are at about 10 percent capacity. 

There is no water shortage along the Rio Grande in New Mexico now nor 

has there ever been and those agencies that have led the public to believe 

this have done a wonderful job establishing a fiction to cover up their own 

mismanagement. 

The State Engineer has long held that there is no unappropriated water on the 

Rio Grande in New Mexico. Even the New Mexico Supreme Court, relying on a stipulation of the State Engineer, said as much in State v. Meyers 3, a 1956 case. However, former State Engineer Tom Turney, though he continued the mantra that 

there was no unappropriated water sent letters to the BOR and the Middle Rio 

Grande Conservancy District (MRGCD) on March 21, 2001 requiring them to provide him proof of their beneficial use of water. They have not complied with his request nor can they. 

Mr. Turney recognized that both the BOR and the MRGCD are only authorized 

by the State Engineer to store and convey water to the owners of the water rights. 

Any applications these agencies have filed for unappropriated water are nul tiel because, under New Mexico law, it is the Applicant that must use the water for a beneficial purpose and these agencies do not use the water. They simply serve as an 

intermediary in delivering a more reliable supply to the ultimate beneficial users 

whose rights originated many years prior to the creation of these agencies. The ownership of the water rights belongs to the person placing the water to beneficial use 

pursuant to N.M. Const. Art. XVI § 3 4and the opinion of Judge Harl D. Byrd 5 that, 

to draw a parallel, it is the farmers in the Carlsbad Irrigation District (CID) who 

own the water rights and not the BOR or the CID. Finally, in 1953, the MRGCD 

itself, as Appellee in Middle Rio Grande Water Users Assn. V. The Middle Rio 

100

6Middle Rio Grande Water Users Ass’n v. Middle Rio Grande Conservancy Dist., 57 N.M. 

287,293, 258 P.2d 391 (N.M. 05/11/1953) 

‘‘E. That said contract and legislation under which appellee purports to act offends against 

the Tenth Amendment to the Constitution of the United States in that appellant is a public 

corporation vested with governmental function, including the power to tax and levy assessments, 

and that the appellee [MRGCD] is now trustee of the irrigable waters of the Rio Grande in the 

District for the purpose of distributing the same to the owners of water rights and has no title 

to the water; that the title to the water is appurtenant to the land and belongs to the landowners, and said contract attempts to transfer title to the water of the river and the taxing 

power of the appellee to an executive of the federal government, to-wit, the Secretary of the Interior 

Grande Conservancy District 6, recognized this and the New Mexico Supreme Court 

agreed. 

So, I am in particular agreement with the testimony given by Governor Ortiz of 

the Pueblo of San Felipe in his opening statement: ‘‘Because the United States has 

seriously over-engineered the Rio Grande with many dams and reservoirs, the natural ecosystem is in crisis and the silvery minnow is on the brink of extinction. At 

the same time, federal mismanagement of the river and water delivery systems has 

made it very difficult for the Middle Rio Grande Pueblos to continue our ancient 

customs and traditions that depend upon our precious water.’’ I would only add that 

the New Mexico State Engineer and the Interstate Stream Commission as well as 

the Rio Grande Compact Commissioners are equally as culpable for having stood by 

for almost 100 years while our precious water just evaporated away. 

However, the myth of a water shortage has led to salutatory water conservation 

programs that continue today in our communities and under the leadership of Anne 

Watkins in the State Engineer’s Office and Jim Baca, my successor as Natural Resources Trustee. Trustee. 

The shortage of water is a product of antiquated water use and water management technology. It is also the product of government management that precludes 

the involvement of private enterprise. The U.S. Bureau of Reclamation (BOR) is certainly part of our problem. An agency that was borne in the late 1800’s as a department within the U.S. Geological Survey upon the great oxymoronic purpose of 

wresting control over water in the west to ‘‘reclaim’’ desert land that was never irrigated. The agency leadership has not a new paradigm in view at a time when new 

paradigms are desperately needed.. This is unfortunate because agency employees 

are intelligent and dedicated people who, given the chance, could solve our new 

problems with new concepts and technology. 

It is extremely disturbing that after the court overturned the ill conceived plan 

of Albuquerque to store its San Juan-Chama water in Elephant Butte that no one 

learned from that decision that the evaporation losses were an egregious waste of 

our precious water resources. The Jicarilla case should have been an explosive wake 

up call to water managers in the West. It was not. Institutional inertia was just 

too much or maybe our backs were not close enough to the wall. For the past six 

years I had periodically brought the evaporation issue before the Governor’s Blue 

Ribbon Task Force on Water but it never caught fire. I think the matter was just 

to large for them to grasp or grapple with because it involved too many sacred cows 

and entrenched shibboleths. 

In fact, open, man-made reservoirs have been disastrous both to man and nature 

alike. They allow the unconscionable waste of water and destroy natural habitat. 

In 1999, the Edwards Dam on the Kennebec River in Maine was breached. The Four 

dams on the Snake River in Idaho are under pressure for removal to preserve the 

wild Snake River Salmon from extinction. In May 2003, Federal Judge James Redden ruled that a government plan for saving the salmon with measures short of dam 

breachings on the Snake was inadequate. A Bill now in the U.S. Congress 

(H.R. 1097) sponsored by Jim McDermott (D. WA 7th) with 85 co-sponsors, introduced on March 5, 2003, would give the approval of Congress to breach the dams. 

Removal or Cochiti Dam was advocated at the 47th Annual New Mexico Water Conference. On July 30, 2003, the KRQE Channel 13 Evening News ran a story on the 

Rio Grande bosque restoration that briefly mentioned removal of dams in New 

Mexico. 

On June 16, 2003, followed by subsequent amendments and applications ending 

on September 5, 2003, Lion’s Gate Water filed its application under N.M. Stat. Ann. 

§ 72-1-1 et seq. for all of the unappropriated and wasted water that evaporates from 

the surfaces of Cochiti, Elephant Butte, and Caballo Reservoirs. Our proposal will 

divert the waters of the Rio Grande at points to be determined and to place the 

water associated with and that gives rise to the evaporation surface and the evaporation into ground-water storage and retrieval projects or to store the water in upstream reservoirs even into Colorado. Cochiti and Elephant Butte reservoirs would 

101

7Sporhase v. Nebraska Ex Rel. Douglas, 458 U.S. 941 (1982) 

serve as sedimentation and temporary storage basins. The ground water storage and 

retrieval projects will be carried out either privately or in public private partnerships within the Santa Fe Group aquifer from Espanola to Las Cruces and within 

the Hueco and Mesilla Bolsons of southern New Mexico, and the Republic of Mexico. 

The water salvaged will be used for environmental restoration, endangered species 

preservation, agriculture stabilization, and future municipal and industrial beneficial uses within the Upper and Lower Rio Grande and possibly Mexico. I have long 

believed that the Rio Grande should be actively managed from its headwaters to the 

Gulf of Mexico. And, I believe the powerful Powersim model of the Rio Grande 

Basin, now under development by Sandia National Laboratory, should be used to 

evaluate water management rules. 

Ground-water storage and retrieval projects are not rocket science. The 

Nabateans used a variant of them 2000 years ago in the Negev desert of Israel. Two 

years ago by the New Mexico Legislature enacted legislation that allows owners of 

such projects to maintain ownership of the water harvested. The legislation, however, does not permit private participation. We believe this is both unfortunate and 

illegal both because both federal and state government in our post 9/11 world lack 

the funding and because it represents an illegal attempt to protect a public monopoly to the exclusion of private enterprise and the commercialization of the resource. 

Certainly private enterprise is more innovative and flexible than government institutions in swiftly implementing solutions when government does not erect illegal, 

administrative, legal, financial, environmental and technical barriers to project implementation. 

Our Application does not impair any existing or yet to be adjudicated historical 

water rights of either Indian or non-Indian water users anywhere. The water for 

which we are applying has never been used consumptively by man. For the water 

to evaporate from Elephant Butte and Caballo at all, it was first used by upstream 

users and then flowed downstream. Prior to construction of Elephant Butte dam historical water use was limited and unreliable in the Lower Rio Grande; however, our 

Application will provide additional water and stabilize agricultural uncertainty. It 

will be the only commodity sold to farmers wholesale rather than the retail prices 

they pay for everything else. 

It is our intention that contractees for the water we have applied for will be required to purchase water for the environment in amounts that will be determined 

by biological opinion. This model is presently used by the Environment Agency in 

the United Kingdom where the government is struggling to facilitate the free marketing of Abstraction Licences, while enhancing environmental restoration and 

water quality. Indeed our Application will improve overall water quality by significantly reducing the increased concentration of solutes that results from evaporation. 

Our initial applications have already been rejected by the State Engineer after 

consultation with the highest levels of the Executive and Legislative branches of 

government. Their reason in their August 25, 2003 letter (a copy of which is appended) states: ‘‘In fact, the evaporation loss from Elephant Butte Reservoir is accounted for and charged against accrued credits and/or debits.’’ Such accounting 

would, in other circles, be called ENRON accounting. Accountants cannot hide the 

fact that the evaporative losses are ‘‘real water’’ and an egregious loss of our precious water resources which is a sustenance to the environment and mankind. 

The rejection and policies that we think the State Engineer will use in furtherance of Executive policy to frustrate our Application will be discriminatory to the 

rights of the private citizen granted under Article XVI of the New Mexico Constitution and the clear language of State Law and the U.S. Supreme Court decision in 

Sporhase v.. Nebraska 7 that recognized water as a commercial trade good and an 

article of interstate commerce. Rather than working with Lion’s Gate, we believe 

that State Government will set up a long and protracted legal battle to protect the 

public water monopoly rather than allowing Lion’s Gate Water to get on with conserving water and restoring the environment all of which are clearly in the public 

interest. State water law is already filled with numerous examples of legal barriers 

to private investment and participation. Some laws violate the Equal Protection 

Clause of the Constitution by granting rights and privileges to government entities 

that they deny to private entities. Contumacious behavior by the Executive and 

quite possible the Legislative Branch of government to implement illegal policy for 

which they may be held liable is clearly not in the public interest but perpetuates 

the water problems we now face. 

Without permits in place and certainty, Lion’s Gate Water is, of course, without 

the ability to raise investment capital to put its projects into place and free markets 

102

will not develop, a theme that was touched on by Mr. D’Antonio, our State Engineer, 

and Ms. Grevey Hillson in their testimony. 

For the complete information of the Committee, Lion’s Gate Water submits herewith a copy of its final Application and amendment dated September 5, 2003. Our 

Application can be viewed on the Internet at (http://www.waterbank.com/

PDF%20Files/APPLICATION%20FOR%20PERMIT%20TO%20APPROPRIATE6.pdf) 

It is our purpose in presenting this testimony to seek a workable political, legal, 

and institutional framework within which Lion’s Gate Water can operate commercially to conserve the 100s of thousands of acre feet of wasted water as a present 

and future sustenance to man and nature. 

For example, we require legislation that will help us provide long-term, predictable and reliable supplies to the environment and other Rio Grande water users 

rather than frustrate the lawful objectives of our Application by creating discriminatory barriers and at least allows: 

Private enterprise to pursue solutions to public water supply problems on an 

equal footing with public institutions as a lawful commercial enterprise which is a 

beneficial use of water under New Mexico law. 

Active basin management by private enterprise subject to state and federal oversight while respecting free market pricing and the marketing and sale of water as 

a commodity and trade good. 

Re-negotiation of the U.S.-Mexican Treaty for the transboundary storage, salvage, 

delivery, and sale of water to Mexico to alleviate the water shortages faced by 

Juarez. 

Storage of Rio Grande Basin water in Colorado as part of overall basin-water 

management. 

I have often marveled that the principles by which we order society and regulate 

our lives have changed little over the millennia thus I am reminded of the words 

of Justice McGhee in Middle Rio Grand Water Users Association who stated ‘‘In this 

connection two legal maxims, worn threadbare by time yet still functioning with as 

much vigor as ever with the added leaven of age, come to mind. They are: ‘‘Salus 

populi est suprema lex’’, literally translated meaning—‘‘The health of the people is 

the supreme law’’ but often translated as ‘‘The safety of the people is the supreme 

law;’’ and ‘‘Sic utere tuo ut alienum non laedas,’’ meaning ‘‘So use your own as not 

to injure another’s property.’’ which the BOR seems to have neglected these many 

years. 

To conclude, I am sure you will agree that our Application is clearly in the public 

interest and, together with conservation and best water use practices, is the only 

large scale, comprehensive solution to our immediate water problems. 

Should you wish, I am at your disposal to present testimony on this topic in 

Washington or elsewhere as the Bureau of Reclamation operates, I believe, some 

348 reservoirs elsewhere in the West. 

NOTE: An enclosure, ‘‘Application and Sixth Amendment to Appropriate the Public Surface Water of the State of New Mexico, August 25, 2003 rejection of 

Applications filed June 16, 2003 et seq.’’ has been retained in the Committee’s 

official files. 

NOTE: The following information has been retained in the 

Committee’s official files: 

• A report entitled ‘‘Taking Charge of Our Water Destiny: A 

Water Management Policy Guide for New Mexico in the 21st 

Century’’ by Alletta Belin, Consuelo Bokum, and Frank Titus. 

It is also available on the Internet at www.1000friends-nm.org. 

• A report entitled ‘‘Summary of the Biology of Rio Grande 

Silvery Minnow, An Endangered Species in the Middle Rio 

Grande, New Mexico’’ by Steven P. Platania and Robert K. 

Dudley. 

• A report entitled ‘‘Economic Costs and Benefits of Instream 

Flow Protection for Endangered Species in an International 

Basin’’ by Frank A. Ward and James F. Booker. • A packet of information submitted by Pena Blanca/Site 

Irrigation Working Group.

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