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[Senate Hearing 107-827]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 107-827

        IMPACTS OF DROUGHT ON RECLAMATION PROJECTS IN NEW MEXICO

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

   TO EXAMINE THE IMPACTS OF DROUGHT ON RECLAMATION PROJECTS IN NEW 
       MEXICO, PARTICULARLY THE RIO GRANDE AND PECOS RIVER BASINS

                               __________

                              JULY 2, 2002

                            ALBUQUERQUE, NM

                       Printed for the use of the
               Committee on Energy and Natural Resources

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                            WASHINGTON : 2003
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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                  JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii              FRANK H. MURKOWSKI, Alaska
BYRON L. DORGAN, North Dakota        PETE V. DOMENICI, New Mexico
BOB GRAHAM, Florida                  DON NICKLES, Oklahoma
RON WYDEN, Oregon                    LARRY E. CRAIG, Idaho
TIM JOHNSON, South Dakota            BEN NIGHTHORSE CAMPBELL, Colorado
MARY L. LANDRIEU, Louisiana          CRAIG THOMAS, Wyoming
EVAN BAYH, Indiana                   RICHARD C. SHELBY, Alabama
DIANNE FEINSTEIN, California         CONRAD BURNS, Montana
CHARLES E. SCHUMER, New York         JON KYL, Arizona
MARIA CANTWELL, Washington           CHUCK HAGEL, Nebraska
THOMAS R. CARPER, Delaware           GORDON SMITH, Oregon

                    Robert M. Simon, Staff Director
                      Sam E. Fowler, Chief Counsel
               Brian P. Malnak, Republican Staff Director
               James P. Beirne, Republican Chief Counsel
                    Mike Connor, Democratic Counsel
                   Colleen Deegan, Republican Counsel

                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Armstrong, Leslie, President, Fort Sumner Irrigation District....    32
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................     1
Chavez, Martin J., Mayor, City of Albuquerque, NM................    12
Davis Tom W., Manager, Carlsbad Irrigation District, Carlsbad, NM    37
Delgado, Larry A., Mayor, City of Santa Fe, NM...................    50
Domenici, Hon. Pete V., U.S. Senator from New Mexico.............     2
Farris, Steve, Office of the New Mexico Attorney General.........    18
Gold, Rick L., Regional Director, Upper Colorado Region, Bureau 
  of Reclamation.................................................     4
Horning, John, Executive Director, Forest Guardians, Santa Fe, NM    41
Midkiff, Lt. Colonel Raymond G., District Engineer, Albuquerque 
  District, Army Corps of Engineers..............................     8
Nicholopoulos, Joy, Supervisor, New Mexico Ecological Services 
  Field Office, U.S. Fish and Wildlife Service...................     5
Quintana, Andrew, Governor, Pueblo de Cochiti....................    29
Shah, Subhas K., Chief Engineer, Middle Rio Grande Conservancy 
  District, Albuquerque..........................................    23
Sulnick, Robert H., Campaign Manager, Alliance for the Rio Grande 
  Heritage.......................................................    27
Turney, Thomas C., New Mexico State Engineer, Santa Fe, NM.......    14

 
        IMPACTS OF DROUGHT ON RECLAMATION PROJECTS IN NEW MEXICO

                              ----------                              

                         TUESDAY, JULY 2, 2002

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                   Albuquerque, NM.
    The committee met, pursuant to notice, at 2 p.m. in room 
119, U.S. Army Corps of Engineers Albuquerque District Office, 
4101 Jefferson Plaza, NE, Albuquerque, New Mexico, Hon. Jeff 
Bingaman, chairman, presiding.

           OPENING STATEMENT OF HON. JEFF BINGAMAN, 
                  U.S. SENATOR FROM NEW MEXICO

    The Chairman. Why don't we go ahead with our hearing, since 
we have got everyone's attention. This is a good time to do it.
    Let me welcome everyone. This is a hearing of the Senate 
Energy and Natural Resources Committee, which both Senator 
Domenici and I serve on, and its purpose is to examine the 
impact of this year's extreme drought on the reclamation 
projects in New Mexico. Discussion is going to focus on the 
Middle Rio Grande and also the Pecos River basins, and 
testimony will be provided by a number of expert witnesses, who 
are on the front lines trying to deal with these complicated 
issues, which have been made even more difficult this year 
because of the extreme drought that we are living with.
    I want to, first, thank Senator Domenici for attending and 
participating. I know he has got another obligation a little 
later on, which he is going to go down to a dedication of a 
facility expansion down here at the Biopark--and I think the 
mayor's going to leave for that, and a few others, as well, but 
I very much appreciate his involvement at this hearing. He's 
been very involved in these issues, and works on them on a day 
in, day out basis.
    Let me just say a few more things, that from my 
perspective, I hope the hearing will not only tell us something 
about what the current situation is and the plan to deal with 
the current situation, but also, what we can see in the future 
as far as the situation we are getting ourselves into as we 
hear about the drawdowns in the various reservoirs, as we hear 
about the calls we are making on the available water supply. 
How do we deal with the situation if the drought continues, and 
what do we do next year?
    Obviously, the Federal Government is not the total solution 
to any of this, but it has a very significant role. The State 
has also been playing a very constructive role. The creation of 
the New Mexico water trust board is one example of this, one 
example of the constructive activities the State has been 
engaged in. I know there are also very significant local 
resources and efforts going forward, and we will undoubtedly 
here about those, as well, so I hope the purpose will be served 
today. The purpose is, of course, to educate us all on the 
issues and provide us with some insights into what we need to 
be doing. I think the best chance of progress toward the goals, 
that we all probably agree upon, of developing reliable 
supplies of water, protecting traditional water uses, 
respecting the environment, rests in our ability to work 
together and find collaborative solutions to the problem. So 
let me defer to Senator Domenici for any statement he has, and 
then we will start with the witnesses.

       STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR 
                        FROM NEW MEXICO

    Senator Domenici. Thank you very much, Mr. Chairman, and it 
is good to be here with you. And I want to personally apologize 
to all of you, as I have to Senator Bingaman, about not being 
able to stay all afternoon. I actually had a full day when I 
was informed that Senator Bingaman would like to do this. He 
tried to move his around and I tried to move as much as I 
could. And we started out, this morning, in this building, 
except that the issue was the departure of the good colonel, 
but I am back here and very pleased to be.
    I would like all of you to know that I am very lucky, at 
this point, because for the last 6 years, I have served on a 
committee, Appropriations, that I have been either chairman or 
ranking member of, that funds the entire Bureau of Reclamation 
annually, and one of the inquiries by Senator Bingaman has to 
do with the impact of the drought on the Bureau of Reclamation 
and its activities here.
    I would just say, in opening remarks, Senator Bingaman, 
that anything the Bureau of Reclamation has asked for the last 
2 years, that apply to New Mexico, they have received in the 
appropriation bill, except one item, and that one item has to 
do with $4 million that we need for--which one is that for?
    Unidentified Speaker. For the water of Albuquerque.
    Senator Domenici [continuing]. For the last settlement that 
Albuquerque made with reference to the minnows, and the reason 
it is not in there is because the settlement came after the 
work was done. We will still try, Senator, to put it in the 
supplemental, and then we will have taken care of all of the 
requests. And I hope that you understand that we are permitting 
one entity to buy water from somebody else, but it is all 
short-term purchases. It is one year.
    So it is not as if we are transferring, and the precedental 
value of the one year is literally stated there, that this is 
not selling or transferring, it is a right to use the water, 
and they pay the fee for that. By moving that around, we have, 
thus far, been able to provide everyone with sufficient water 
to this point, including allocation to the minnow, the farmers, 
the city of Albuquerque and the like.
    One issue that I cannot leave this hearing without saying 
on the record that I thoroughly, thoroughly disagree with, and 
that is the decision by our Federal judge that the endangered 
species has precedence or takes precedence over the San Juan-
Chama water that was imported across the mountains by the city 
of Albuquerque and put into this basin. The year before I was 
chairman of the city commission, and I was chairman 46 years 
ago, so I think they paid for it over 50 years and brought it 
from one basin to another, and I feel very much that we must 
have an appellate court decide whether that is correct or not.
    And if that is correct, then I think things are out of 
balance. If it is not correct, I want to be optimistic. I 
believe unless we continue to have the worst droughts ever, if 
we keep the Bureau of Reclamation, the Corps of Engineers with 
us, in terms of resources, and if the other parts of our State 
work as hard as they have the last year, I will tell you, 
Senator Bingaman, in 30 years, being Senator, I have not seen 
the instrumentalities and agencies of this State be more 
proactive and do more positive things that are moving us toward 
a solution in the last year-and-a-half or two than the whole 
30, including the thing you mentioned, very exciting idea, the 
$30 million that they put in, that the legislature put in; two 
of them, one they put in increases our spending, and we can use 
it for matches with our Federal Government money.
    But many other things, in various districts, that are going 
on are positive, and I don't think everybody is quite at the 
other guy's throat as much as they were when we started this. 
They are understanding they all have to try to end up solving 
this problem, and as soon as we get everybody saying, ``What do 
I have to do,'' instead of, ``Get the hell out of here, you 
have got nothing to do with this,'' I think we will move ahead.
    Thanks for calling the hearing. I am pleased to be here.
    The Chairman. Well, thank you. Why don't we go ahead with 
our first witnesses here, and they are all sitting up here at 
this table, ready to go. Rick Gold, who is the Regional 
Director for the Bureau of Reclamation, is here; Joy 
Nicholopoulos, who is the Ecological Services Director, as I 
understand it--is that right?
    Ms. Nicholopoulos. Yes, sir.
    The Chairman. For the U.S. Fish and Wildlife Service.
    Colonel Ray Midkiff, you're here.
    Colonel Midkiff. Yes, sir.
    The Chairman. And your successor is here.
    Colonel Midkiff. Yes, sir. He is actually the boss now, 
sir.
    The Chairman. He is the boss.
    Colonel Midkiff. As of about 4 hours ago.
    The Chairman. So you are the has-been and he is the boss.
    Colonel Midkiff. Yes, sir.
    The Chairman. Why don't we go ahead. I guess maybe the 
place to start, why don't we hear from you, Mr. Gold, and then 
we will just go in the order that I announce folks.
    Mr. Gold. Thank you very much.
    The Chairman. Let me just also urge, if witnesses can, we 
will include your entire statement in the record, but would you 
please try to give us 5 or 6 minutes to make the main points 
that you think we need to be made aware of. We would appreciate 
it.
    Mr. Gold. Okay. Thank you very much. Can you hear me? Is 
this mike working?
    Ms. Miner. It doesn't seem to be. Did you turn the on 
switch?
    Ms. Nicholopoulos. It's on.
    Ms. Miner. Okay. I'll find someone to correct that.
    Mr. Gold. I'll be bold.
    The Chairman. Just speak up and we will all hear you.

 STATEMENT OF RICK L. GOLD, REGIONAL DIRECTOR, UPPER COLORADO 
                 REGION, BUREAU OF RECLAMATION

    Mr. Gold. Thank you very much. Mr. Chairman, Senator 
Domenici, and the other members of the committee, my name is 
Rick Gold and I'm the Regional Director of the Upper Colorado 
Region of the Bureau of Reclamation. I appreciate the 
opportunity to appear today to discuss Reclamation's role in 
meeting the water management challenges in New Mexico. My 
comments today will focus primarily on the Rio Grande and the 
Pecos River basins.
    From the headwaters of the Rio Grande to El Paso, water 
year runoff into reclamation reservoirs for year 2002 has 
averaged 17 percent of normal, with about 10 percent of average 
in the Pecos River basin. The forecast for the remainder of the 
year is equally dismal, and 2002 is rapidly approaching a 
record dry year. Transmountain diversions from Colorado to New 
Mexico, from the San Juan-Chama project, have been reduced to 7 
percent of normal; 7 percent. The conditions we're experiencing 
this year have been exacerbated by the fact that this is the 
third year in a row that we've had below average precipitation 
and runoff. These severe drought conditions throughout New 
Mexico are impacting all aspects of the water--of water 
resource management; however, along with these challenging 
conditions come opportunities to test the resiliency and the 
management skills of all our stakeholders.
    As Reclamation celebrates its centennial year, the present 
drought demonstrates, once again, the valuable and important 
role reclamation projects have played in these two river 
basins. The existence of reclamation storage projects in these 
basins has created significant benefits to agriculture and 
municipal use that otherwise would not exist in a 3-year 
drought of this magnitude. These projects not only have allowed 
for the ability to carry over some needed supplies, but also to 
provide some limited flexibility in managing what little water 
is available.
    Water year 2002 is shaping up to be the driest on the Rio 
Grande, making it extremely difficult and costly to meet 
contractor and environmental demands; nonetheless, we're very 
pleased to be a party to an agreement between Reclamation and 
the city of Albuquerque that allows for additional water to be 
made available for the endangered silvery minnow.
    It's also important to note that the city of Albuquerque 
reached a separate agreement with the Middle Rio Grande 
Conservancy District that assists in lengthening the irrigation 
season. These agreements are an example of the involvement and 
collaboration necessary by all parties to manage water 
efficiently.
    In spite of these efforts, the river is experiencing some 
drying below San Acacia due to the infiltration and evaporation 
rates which just simply exceed the low flows available. Despite 
the severity of the hydrologic conditions and the fact that the 
situation has been compounded by 3 years of drought, carryover 
storage has provided the flexibility for water releases that 
otherwise would not have been available. In the first 2 years 
of this drought, the district, Middle Rio Grande Water 
Conservancy District, was able to provide a full supply in 
2001, and the irrigation season was only shortened by 2 weeks 
in the year 2000.
    Current operational predictions indicate that Elephant 
Butte Reservoir's active storage will reach a 2002 low level, 
by mid October, at a little over 13 percent of full. These 
projections are the lowest since February 1979. Carryover 
storage, however, has made the difference in project deliveries 
to water users. The Rio Grande project will provide 100 percent 
of its annual supply this year with 100 percent being provided 
in both 2001 and 2000.
    The Pecos River basin also presents a bleak situation. 
Total storage in the four reservoirs on that river basin; Santa 
Rosa, Sumner, Brantley and Avalon, have dropped to about 13 
percent of normal with delivery for the Carlsbad project down 
to about 23 percent of their entitlement. Some sections of the 
river have gone intermittent. By way of contrast, the project 
delivered 63 percent of entitlement in 2001 and 89 percent of 
entitlement in 2000.
    In response to the severe situation and due to the low 
reservoir conditions, an interim operating plan was recently 
developed by the Carlsbad Irrigation District, Fort Sumner 
Irrigation District, the State Engineer and Reclamation for a 
6-week period. This collaborative effort provided for the 
establishment of a minimum pool in Sumner and set guidelines 
for bypassing Fort Sumner Irrigation District's direct flow 
right through upstream reservoirs. Next week, these parties 
will reassemble and evaluate the continuity or the continuation 
of that agreement.
    I would like to, once again, emphasize the importance of 
these kinds of cooperative efforts with all stakeholders 
sharing in shortages and pulling together to look for ways to 
stretch each drop of water. Unfortunately, because of the 
circumstances provided by Mother Nature, difficulties exist in 
meeting minimum flows for the threatened bluntnose shiner in 
the Pecos River. We are pursuing collaborative efforts with our 
partners to try to meet minimum flow targets.
    In an effort to ameliorate some of these drought effects, 
Reclamation has some funding available for drought programs 
under its drought assistance program. To date, we have five 
applications--at the time of this writing. I think we're up to, 
like, now seven, and we're working hard to stretch those 
dollars for maximum efficiency. We have a long history of 
being--providing water in good times and bad, and it is our 
pleasure to help the citizens of New Mexico in water management 
in both the Rio Grande and Pecos basins.
    Thank you and I'll be happy to answer any questions.
    The Chairman. Thank you very much.
    Next, Joy Nicholopoulos.

    STATEMENT OF JOY NICHOLOPOULOS, SUPERVISOR, NEW MEXICO 
   ECOLOGICAL SERVICES FIELD OFFICE, U.S. FISH AND WILDLIFE 
                            SERVICE

    Ms. Nicholopoulos. Mr. Chairman, members of the committee, 
I am Joy Nicholopoulos, Supervisor of the New Mexico Ecological 
Services Field Office for the U.S. Fish and Wildlife Service. 
My regional director, Dale Hall, was scheduled to be here 
today, but he was just recently announced as a permanent 
regional director and he had to return to Region 4 to take care 
of his new position, so he sends his apologies.
    Thank you for this opportunity to appear before you today, 
to provide our perspective on the impacts of drought conditions 
in the Rio Grande and Pecos River watersheds. The Southwestern 
United States is enduring one of the worst droughts in decades, 
and New Mexico has been particularly hard hit. Snowpack runoff 
is less than 25 percent of average in both the Rio Grande and 
Pecos watersheds, and there has been very little spring rain. 
The current drought conditions demand collaborative efforts in 
managing for water use while protecting threatened and 
endangered species. Much of my testimony and the testimony of 
others will focus on two species that are protected under the 
Endangered Species Act. First of all, the Rio Grande silvery 
minnow.
    The silvery minnow was listed as endangered on July 20, 
1994 and the Pecos bluntnose shiner was listed as threatened on 
February 20, 1987. Throughout much of their range, the decline 
of these species has been attributed to modification of the 
flow regime and channel drying due to impoundments, water 
diversions for agriculture and municipal use, stream 
channelization and declining water quality.
    Most of the population of the Rio Grande silvery minnow now 
occurs in a 168-mile reach of the Rio Grande, while the 
majority of Pecos bluntnose shiners is found in a 194-mile 
reach of the Pecos River. These areas encompass a small 
fraction of the historic ranges for these species. The Rio 
Grande silvery minnow is most common from the San Acacia 
diversion dam south to Elephant Butte reservoir. The Pecos 
bluntnose shiner is most abundant from Old Fort Sumner State 
Park downstream to Roswell. During the recent drought, 
significant portions of these reaches have been subject to 
intermittent flows or drying.
    The Service is committed to working with our partners to 
find creative solutions that will protect watershed-dependent 
species, including the Rio Grande silvery minnow and the Pecos 
bluntnose shiner, while ensuring that the State of New Mexico 
and its residents will have water to meet their needs, as well 
as the water compact commitments to the State of Texas. The 
Service and our partners, including the State of New Mexico, 
the U.S. Bureau of Reclamation, the U.S. Army Corps of 
Engineers, the Middle Rio Grande Conservancy District, the New 
Mexico Interstate Stream Commission, the city of Albuquerque, 
and many others share in the burdens created by the current 
drought and are prepared to deal with the drought effects, 
including river drying.
    For example, field crews are working daily to rescue 
silvery minnows as a lack of water in the Rio Grande creates 
drying conditions. I have two full crews out today rescuing 
minnows in this 100-degree heat. The Service is fortunate to 
have partners willing to work proactively and who have given 
generously of their expertise and ideas to resolve the suite of 
drought-related problems facing all of New Mexico, including 
the protection of endangered species and their habitats. I 
would like to take a moment to bring you up to date on our 
efforts to find balanced solutions.
    On June 29, 2001, the Fish and Wildlife Service issued the 
Programmatic Biological Opinion on the Effects of Actions 
Associated with the U.S. Bureau of Reclamation, the U.S. Army 
Corps of Engineers and Nonfederal Entities' Discretionary 
Actions Related to Water Management on the Middle Rio Grande in 
New Mexico. Federal agencies are required to consult with the 
Fish and Wildlife Service under section 7 of the ESA if actions 
taken, permitted or funded by that Federal agency may 
jeopardize the continued existence of a listed species. That 
consultation process led up to the June 29 biological opinion. 
That was a collaborative effort that included the city of 
Albuquerque, the New Mexico Interstate Stream Commission and 
the Middle Rio Grande Conservancy District. In addition, it is 
important to acknowledge that the pueblos in the middle Rio 
Grande have been leaders in Rio Grande habitat restoration 
efforts which benefit wildlife and their habitats.
    Concurrent with the issuance of the June 21--or of June 
2001, excuse me, biological opinion, the State of New Mexico 
helped forge a conservation water agreement that calls for 
storage of up to 100,000 acre-feet of native Rio Grande water 
and the release of that water up to 30,000 acre-feet annually 
for 3 years to augment river base flows for the silvery minnow. 
The availability of this water is dependent on snowpack runoff.
    The Bureau of Reclamation initiated formal consultation for 
water operations on the Pecos River with the Fish and Wildlife 
Service in 1991. The consultation concluded in August 1991 with 
the issuance of a biological opinion that concluded in a 
jeopardy finding with a reasonable and prudent alternative. The 
alternative called for the development of a memorandum of 
understanding between Reclamation, the Carlsbad Irrigation 
District, and the Service for the purpose of formulating annual 
plans for Pecos water operations.
    Through the collaborative planning process and with the 
help of above normal precipitation, the numbers of bluntnose 
shiners has gradually increased over the past decade. The 
bluntnose shiner population had been considered stable until 
the onset of the 3-year drought currently gripping New Mexico. 
The Service is now working with our partners to find innovative 
solutions that will protect the bluntnose shiner during this 
drought; for example, we are pursuing collaborative efforts 
with our partners to try to meet minimum flow targets.
    Partnerships have been instrumental in stabilizing the 
silvery minnow and the bluntnose shiner status. Successful 
Endangered Species Act implementation must be inclusive and the 
Service is working hard to include all stakeholders in this 
process. The Service remains deeply committed to collaborative 
processes to resolve ongoing water management and Endangered 
Species Act issues.
    Mr. Chairman, this concludes my statement, and I'm happy to 
answer any questions that you might have.
    The Chairman. Thank you very much.
    Colonel Midkiff, do you want to go right ahead?

STATEMENT OF LT. COLONEL RAYMOND G. MIDKIFF, DISTRICT ENGINEER, 
         ALBUQUERQUE DISTRICT, ARMY CORPS OF ENGINEERS

    Colonel Midkiff. Mr. Chairman, Senator Domenici, members of 
the committee, I'm Lieutenant Colonel Ray Midkiff, and up until 
about 4 hours ago, I was the District Commander of the 
Albuquerque District. Lieutenant Colonel Hurst is now in 
command. Thank you for the opportunity to testify on the 
impacts of drought on Corps projects in New Mexico. Included in 
our written testimony is a series of graphs we will go through 
as I proceed with the testimony.
    The current drought in New Mexico is having a dramatic 
impact on the water resources available to meet the diverse 
needs within the State. To give you a historic perspective on 
how severe the drought situation is, the following graph 
compares this year's flows with that of 1977 for the Rio Grande 
at the Embudo river gauge located in north central New Mexico. 
In the graph, you can see the blue line is the flows at Embudo 
in 1977, which, previous to this year, was the drought of 
record. And then you can see on the purple line that we're well 
below that here in 2002.
    The Embudo gauge was the first river gauge installed by the 
Geological Survey, with a continuous record dating back to 
1889. The driest year on record was 1977, and as you can see, 
the snow melt runoff period of 2002 is drier than that of 1977. 
Clearly, this reduction in water supply creates many 
challenges. A map of New Mexico showing the different river 
basins is provided as an attachment in our testimony.
    Focusing on Corps of Engineer projects, I would ask your 
permission, while it's not in the Pecos or Rio Grande basins, I 
would like to talk about Conchas, which is on the Canadian 
River basin. On March 1 of this year, the storage in Conchas 
Lake was 103,000 acre-feet of water. On July 1, 2002, the 
storage is 82,000 acre-feet of water. Although this is a fair 
amount of storage remaining in the project, the reservoir 
elevation is not sufficient to enable the delivery of water 
into the Arch-Hurley Conservancy District irrigation canal.
    Moving over to the Pecos River basin, Santa Rosa Lake, on 
March 1, 2002, had a storage of 14,500 acre-feet. On July 1, 
2002, this project has 600 acre-feet in storage. There was only 
one delivery of irrigation water to Brantley Reservoir for the 
Carlsbad Irrigation District this year. With an average inflow 
this summer, the storage in Santa Rosa Lake could reach 15,000 
acre-feet by November 1, 2002. If the drought conditions 
persist, the November 1 storage could be much less.
    Moving over to the Rio Grande basin, there are three Corps 
projects that normally would have storage. One of these, Jemez 
Canyon Reservoir on the Jemez River, was completely evacuated 
in 2001, and is currently operated as a dry flood control 
facility. Abiquiu Reservoir on the Rio Chama had a storage of 
151,000 acre-feet on March 1, 2002. The storage, on July 1, 
2002, is 98,000 acre-feet. Of the water released from Abiquiu 
so far this year, 27,000 acre-feet was conservation agreement 
water that was stored in 2001. We anticipate that the storage 
in Abiquiu Reservoir would be 35,000 acre-feet on November 1, 
2002, due to a recent agreement between the city of Albuquerque 
and the Middle Rio Grande Conservancy District.
    The third major Corps reservoir project on the Rio Grande 
basin is Cochiti Lake. Cochiti is operated for flood control, 
sediment control, and also to maintain a permanent pool with a 
surface area of 1,200 acres, which is approximately 50,000 
acre-feet of water.
    I would like to note that the Corps does have limited 
authorities under Public Law 84-99 to provide drought 
assistance. This assistance would most likely be in the area of 
emergency well drilling or in the transport of water. The Corps 
can drill a well for an applicant if the Secretary of the Army 
determines an area to be drought-stressed, the applicant cannot 
obtain the water from the private sector within a reasonable 
time, and if the applicant agrees to pay for the drilling. The 
Corps can also transport water by vehicle or pipeline in cases 
where local, State and other Federal agencies' capabilities 
have been exhausted and the applicant meets other requirements.
    Mr. Chairman, this concludes my statement. I would be happy 
to answer any questions you or the other committee members may 
have.
    The Chairman. Okay. Thank you very much. Let me ask a few 
questions and then defer to Senator Domenici for his questions.
    An obvious question for both the Corps of Engineers and the 
Bureau of Reclamation is: As we look forward, what are we 
expecting with regard to carryover storage? I mean, we talked 
about how--I think all of you have testified that there has 
been reduction in these reservoirs as a result of the demands 
that exist in the drought situation and that we have been able 
to get by using up this carryover storage. Someday here, it is 
going to be gone. Mr. Gold, did you have some thoughts on that, 
and then Colonel Midkiff.
    Mr. Gold. Mr. Chairman, I think that the key element is 
basically as you described it. When you're in the third year of 
a drought, it is really tough to make choices about carrying 
over any substantial amounts of water, because to do so, 
directly cuts the amount that you can utilize this year, and of 
course, that's been happening for 3 years. We're in a situation 
where there is not much carryover in system reservoirs. My 
sense would be another drought as severe as this year's drought 
would put us in very, very serious conditions for water supply 
across both the Rio Grande and the Pecos basins.
    Lt. Colonel Midkiff. Mr. Chairman, I would concur with 
that. I think as that carryover water gets used and if you have 
another year like this next year, that there is some risk there 
in releasing that water into the system.
    The Chairman. Well, let me ask the Fish and Wildlife 
Service, as you see it, what are the prospects for long-term 
recovery both in the Pecos and in the middle Rio Grande of 
these endangered species? I mean, is this something that is 
fixable, or is this just something that, given existing uses, 
we are sort of postponing the inevitable? What's the situation, 
as you see it?
    Ms. Nicholopoulos. Mr. Chairman, I'll start with the Rio 
Grande and the Rio Grande silvery minnow--the Fish and Wildlife 
Service does believe that that problem is fixable. The species 
that are listed in the middle Rio Grande are moving towards 
recovery. We've seen great strides with the flycatcher and 
we're seeing some baby steps, if you will, with the Rio Grande 
silvery minnow. The Rio Grande silvery minnow, as everyone 
knows, was in much worse shape than the southwestern 
flycatcher. I think it's fair to say that the silvery minnow 
was on the brink of extinction.
    This year, we saw a very successful spawn. We had an 
average year last year. The river was kept wet, and this year 
we documented spawning in upper regions. This occurred for the 
first time, so we're encouraged by this news.
    The answer to recovering the silvery minnow will be to 
repopulate the silvery minnow in upper reaches, the northern 
reaches, if you will, and also outside of the Middle Rio 
Grande. We have several tools available to us under the 
Endangered Species Act, one of which is under section 10-J of 
the ESA.
    Senator Domenici. What is that?
    Ms. Nicholopoulos. It's an experimental nonessential 
population designation. That allows an extreme amount of 
flexibility in dealing with the endangered species while 
allowing them to be put back in a place where they once 
occurred and they may proliferate, and that will take the 
stress off of the lower parts of the middle Rio Grande, so that 
the area from the San Acacia diversion dam south will no longer 
be the place where most minnows are located. It's vital to move 
the minnows upstream and to move them into different watersheds 
to recover the species.
    We have a little bit of a different situation on the Pecos. 
The Pecos bluntnose shiner is restricted to certain areas of 
the Pecos. We're fortunate in that its status is much better 
than the silvery minnow, so we need to continue our efforts 
with the Pecos bluntnose shiner to continue to have them 
distributed throughout all reaches in the Pecos and to continue 
our scientific investigations into their habitat needs, their 
water needs. And for the first time, we're putting them into 
captivity, which should provide some interesting answers in the 
scientific realm.
    The Chairman. Let me ask you one more question, then I will 
defer to Senator Domenici. This biological opinion that you 
folks issued in 2001, it has certain conditions attached to it. 
If those conditions are not met as we get into 2003, is there a 
contingency plan? Could you enlighten us as to what that plan 
might be.
    Ms. Nicholopoulos. Absolutely. All biological opinions have 
a shelf life, if you will. The shelf life of the June 
biological opinion was 3 years. It was supposed to go until 
December 2003. Under the Endangered Species Act section 7 
regulations, we are allowed to reinitiate consultation. The 
Federal action agencies may contact the Fish and Wildlife 
Service and say, ``We have new information'' or ``We are no 
longer able to meet the elements of the RPA you prescribed in 
the biological opinion.''
    So what we would do is, we would take another look at the 
aspects they could not meet or the new information that was 
provided, and we would try to do our best to remain flexible 
and allow a little bit of a different prescription during this 
time of drought.
    The Chairman. Let me defer to Senator Domenici.
    Senator Domenici. First, I want to thank you very much, 
Joy. I am not sure I am as good as Senator Bingaman at saying 
your last name. Could you help me with it.
    Ms. Nicholopoulos. Nicholopoulos.
    Senator Domenici. Nicholopoulos. I may not say it as well, 
but I guarantee you that nobody appreciates what you just said 
more than I. I am not at all sure we would have heard that 
testimony last year or the year before. And I have a question. 
A permanent director has been appointed, Mr. Hall, Dale Hall. 
Does he agree, in your opinion, with the analysis you have just 
given Senator Bingaman with reference to these species in both 
rivers?
    Ms. Nicholopoulos. Yes, sir, I would say that Dale Hall, 
our new regional director, agrees with me philosophically and 
procedurally, and the Fish and Wildlife Service is moving in a 
new direction.
    Senator Domenici. Well, I would think that you all have to 
get ready for another lawsuit, but I urge that you in no way 
shirk from this based upon litigation--litigation in this area, 
as soon as anybody that can get to the courthouse disagrees, 
and you understand that.
    First of all, I want to tell you that what we agreed upon 
last year--you were not in charge--but we did put together, at 
the last minute, the 3-year agreement that my friend, Senator 
Bingaman, just alluded to. It barely got done, but I think it 
was a marvelous effort on the part of many people to do 
something positive, rather than let a crash occur, and I 
compliment you for that, and the Bureau, and the others who 
were part of it.
    Today, we have solved--for 2 years now, by making 
agreements, we have solved an issue, and I want to say the city 
of Albuquerque could not be more progressive. I will not try to 
burden putting equality on them, because I do not know whether 
they just like to be called good citizens, people who represent 
the water of the city of Albuquerque well, but in all events, 
they also have been tremendous in trying to alleviate the 
excess burdens that might have befallen this district, if they 
had not got in and lent some of their water--they did not lose 
it, they lent it, got paid for it and will again, and if they 
had not engaged in a great scientific effort in reproduction in 
the refugia, which I will go see this afternoon, Mr. Chairman.
    I also suggest that about a year and a half ago, it came to 
me that we should take the fish to the water, instead of the 
water to the fish, because it seemed to me that it's just 
natural that it should be cheaper to bring the fish to the 
water than to adjust the water consumption of this whole river 
so as to adjust the availability of water at the bottom end, to 
save the fish. You never used those words, but I believe you 
are moving toward a preferred approach that says that; am I 
correct?
    Ms. Nicholopoulos. Yes, sir, you are correct. We had to 
ensure a spawn, and unfortunately, most of the minnows were 
located in that lower stretch; however, we were pleasantly 
surprised when we saw evidence of a spawn in the upper reaches, 
as well. The captive propagation efforts that have been led by 
the city of Albuquerque, without their bio park and the 
research they have been doing, we would not be nearly as far as 
along as we have in captive propagation. The Service has been 
blessed with many, many partners, and the city of Albuquerque 
really has lent a great hand in captive propagation, and also, 
in scientific endeavors of the biology of the spawn, and now 
they're doing swimming studies so that we can study fish 
passage around the diversion dams.
    Senator Domenici. And I am quite sure the mayor will speak 
to those, so I do not want you to take his testimony.
    Ms. Nicholopoulos. You're exactly right.
    Senator Domenici. He has been looking forward to this day, 
and I am looking forward to hearing it. In any event, I want to 
say, Mr. Chairman, we are also blessed by having some very 
cooperative Indian leaders, and Mr. Sulnick here, I believe he 
represents one group in terms of the expertise. They lent us 
some other expertise, as you know, through this, and I want to 
thank you.
    Let me say because we are so short of water because of the 
drought, we are not close to a solution, but the drought will 
not last forever and we are going to be finding a solution 
pretty soon, and I thank everybody for working on it.
    Thank you.
    The Chairman. Okay. I think we have four panels, so I think 
probably in the spirit of moving the hearing along, we will 
release this panel and call the next panel. Thank you very 
much.
    The Chairman. Why don't we start with you, Mr. Mayor. Thank 
you very much for being here.

             STATEMENT OF MARTIN J. CHAVEZ, MAYOR, 
                    CITY OF ALBUQUERQUE, NM

    Mayor Chavez. Well, Mr. Chairman, members of the committee, 
I do want to welcome you to Albuquerque. Absent the smoke from 
Arizona, we've got a beautiful day for you.
    I am pleased to testify today on the effects of drought in 
the Central Rio Grande Valley and specifically in the city of 
Albuquerque. This region has experienced drought three times 
over the last 7 years, and 2002 may prove to be the driest year 
of record. This committee recognizes the obvious effect of 
long-term drought is the availability of water in upstream 
reservoirs to meet demands.
    Today, I'll focus on the long-term water supply issues 
facing the city of Albuquerque, what the city is doing during 
this year's drought, and the effect of the Endangered Species 
Act on local water supplies considering if the current goal is 
adequate for our future.
    Water conversation, by itself, will not solve the city's 
dilemma. We must transition to surface water; namely, our San 
Juan-Chama water, to preserve the aquifer for peak demands in 
times of drought. In 1965, the city signed a contract with the 
Secretary of the Interior for 48,200 acre-feet of water 
annually from the San Juan-Chama project, and I want to 
recognize and thank Commissioner Domenici for his support at 
that time.
    When the city signed the contract for the San Juan-Chama 
water, the purpose was to secure a water supply for the future, 
and that future is today. The need for supplemental water 
supplies in the Central Rio Grande was recognized in the 1930's 
when the hydrology plan documents were prepared for the Rio 
Grande Compact. The San Juan-Chama Project was intended to 
provide supplemental water, and the project history clearly 
shows that the city of Albuquerque was the primary beneficiary 
of the project.
    The San Juan-Chama project was completed in 1971 and 
provides 96,200 acre-feet of imported water from the Colorado 
River into the Rio Grande at Heron Reservoir. The city's 
contract obligation is to repay the Federal Government for the 
proportional share of the project allocated for municipal and 
industrial purposes. The total repayment, including interest, 
over the 50-year period is $56 million. In addition, the city's 
responsible for about half of the annual operation and 
maintenance costs for the facility. Annually, the city pays 
around $2 million for our share of the San Juan-Chama Project 
water and has invested more than $45 million in water to date.
    Since operations on the San Juan-Chama Project started in 
1971, the city has been generous in providing the city's San 
Juan-Chama water to help others, primarily the farmers in the 
valley. Since 1996, the city has entered into the agreements 
with the Bureau of Reclamation to provide supplemental water 
supplies for endangered species. During this year's drought, 
the city signed agreements with the
    Central Rio Grande Conservancy District, read that 
``farmers,'' and the Bureau of Reclamation, read that 
``minnows,'' for supplemental water.
    The 2002 Bureau agreement is to provide up to 40,000 acre-
feet of water to supplement current supplies such the Bureau 
can comply with the target flows for the Rio Grande silvery 
minnow established by the Fish and Wildlife Service. Since 
1996, the city has leased more than 200,000 acre-feet of water 
to the Bureau to provide supplemental water in order to meet 
endangered species responsibilities; however, the city must now 
begin to use our San Juan-Chama water or face the consequences 
of a depleted aquifer and land surface subsidence.
    The question that everyone asks the Bureau is, what are you 
going to do once the city begins diverting and using the water 
for drinking water purposes? A coalition of environmental 
groups filed a lawsuit in 1999 against the Bureau and the Corps 
of Engineers, citing failure to fully consult on the 
discretionary responsibilities and the need for continuous 
flows in the Central Rio Grande. The city intervened to protect 
our interest in the San Juan-Chama water, and ultimately our 
future viability.
    U.S. District Court Judge James Parker recently ruled the 
Bureau had the discretion to consult on water deliveries and 
ultimately to reduce water deliveries to the city and farmers 
in the central Rio Grande. Judge Parker stated in the 
memorandum opinion and order that provisions of the 1965 
contract gave the Bureau discretion to unilaterally reduce the 
amount of water to the city, depending on the needs of the 
minnow. In other words, the Bureau must look to the needs of 
the silvery minnow first, and then decide whether Albuquerque 
families get any water.
    Judge Parker also stated that--and I quote, ``It is 
certainly proper and advisable to seek water elsewhere so as 
not the damage the economy of New Mexico, and the Federal 
Government may consider compensating the contractors for 
delivering less water to them under these contracts.'' I 
emphasize the judge stated the Federal Government ``may 
consider compensating'' us for taking our water. The problem 
is, we can't drink money. The city of Albuquerque has filed an 
appeal with the Tenth Circuit Court of Appeals. The city 
contracted for the San Juan-Chama Project water and has 
invested tens of millions of dollars in the project. We have 
met all of our obligations under the contract, and we clearly 
have a serious need for the water. The long-term effect of 
reducing deliveries to the city is to drain the aquifer, 
leading toward land surface subsidence.
    As I stated previously, there is no extra water in the 
central Rio Grande, which is why the San Juan-Chama Project was 
constructed in the first place. The requirement, under the 
Endangered Species Act, that the Bureau look to needs of the 
species in deciding whether the residents of the Albuquerque or 
the farmers received water is preposterous. If the city's 
contract signed in 1965 has the provisions that allow the 
Federal Government to reallocate water as they see fit, how 
many other States, cities and irrigation districts in the 
Western United States will be affected?
    The Bureau, originally established to ensure the existence 
of humankind in the West, by court order construing the 
Endangered Species Act, is now on a mission to exclude 
humankind in favor of the silvery minnow. I understand, support 
and embrace the concepts in the Endangered Species Act; 
however, we must provide for our citizens and will be 
requesting that Congress transfer the title to the San Juan-
Chama Project back to the city of Albuquerque and the other 
contractors. This will obviate the need for future Federal 
consultation regarding our water.
    As mayor of Albuquerque, I implore you to adopt the policy 
that protects families in the central Rio Grande. Push has come 
to shove. The choice between protecting species and providing 
for our children is now before you. Albuquerque can no longer 
afford for Congress to have it both ways. I respectfully 
implore you to help the families of Albuquerque.
    And thank you very much, and I'm happy to stand for any 
questions. Thank you for your time.
    The Chairman. Thank you very much.
    Let us hear from our State engineer, Tom Turney.

STATEMENT OF THOMAS C. TURNEY, NEW MEXICO STATE ENGINEER, SANTA 
                             FE, NM

    Mr. Turney. Thank you, Mr. Chairman, Senator.
    It seems like New Mexico is long dependent upon a 
partnership with the Federal agencies for management of many of 
the waters within the State. It appears that the Endangered 
Species Act has basically turned our partnership on its ear. 
The stream flows this year are at a record low. My office is 
getting inundated with calls from people that are flat running 
out of water. The Federal agencies, meanwhile, appear to be 
draining upstream reservoirs, trying to maintain a continuous 
flow in the river in the middle valley for endangered species 
purposes.
    It is my belief that this type of flow is not sustainable, 
and it will fail. If this current drought continues, hard 
choices are going to have to be before us. What is going to 
happen if this drought continues 1, 2, or 3 years? Will there 
be any storage left to continue the existence of the fish at 
that time?
    New Mexico has developed a policy relating to the 
conservation of endangered species. First, the water should be 
acquired by the United States and not taken, and we would like 
to thank both Senators for their help on that issue. Secondly, 
the water should be acquired in accordance with New Mexico 
water law and administration, and that is partially being 
complied with, and we'd like to see if we could see a little 
bit more compliance with New Mexico water law.
    Finally, we don't want any diminishment of New Mexico's 
ability to deliver our obligations underneath the compact, as 
well as water to downstream users. I would like to acknowledge 
all the Bureau's efforts that they have done on Pecos River in 
obtaining offsetting water rights; however, I want to turn back 
to the Rio Grande.
    The inaction of the Federal agencies are going to impact 
New Mexico's ability to deliver water into Elephant Butte. 
Today is a very, very special day. There is a compact condition 
within the Rio Grande Compact, it talks about when the water--
we call it usable water within project storage, and that's 
basically water within Elephant Butte and Caballo, drops below 
400,000 feet or 400,000 acre feet, certain things are 
triggered. What this type of an impact is going to have is on 
any reservoirs that are constructed after 1929 may not increase 
their storage. We do have Santa Fe Canyon's reservoir supplies 
and El Vado, which fit underneath this quote, ``impacted'' by 
this compact provision.
    Meanwhile, Reclamation is having a very difficult time in 
maintaining the channel running into Elephant Butte Reservoir. 
We do need a temporary channel running into Elephant Butte 
Reservoir. Without this temporary channel, the water literally 
just runs out, spreads out and evaporates. Last year, there was 
an attempt to do a channel. The design failed. And at this 
point, we have finally finished the design of the channel to 
where we wanted it to be last year, but the water, meanwhile, 
in the Elephant Butte is continuing to recede. And we 
anticipate that by the end of the irrigation season, it will be 
about 11 miles downstream. The extension of the channel, we 
understand, cannot begin until this next winter because of 
environmental law approvals have not yet been secured.
    The Federal funding we feel is inadequate. We recently 
received a letter from Federal agencies requesting that the 
State replace worn out Federal equipment, saying that it could 
double productivity. We would like to request that the 
Federal--see if we can find Federal funds to buy Federal 
equipment. The State has bought some equipment that we've 
turned it over to the Federal agencies, but we do have limited 
resources.
    Senator Domenici. Have you asked for it?
    Mr. Turney. Yes.
    Senator Domenici. Who?
    Mr. Turney. I believe we had actually sent a letter to your 
office.
    Senator Domenici. And when was that?
    Mr. Turney. And I don't want to give a time frame. It seems 
to me within the last month or so.
    Senator Domenici. Okay.
    Mr. Turney. On the city of Santa Fe, I am very, very 
concerned about the city of Santa Fe. Their reservoirs are 
getting very, very low. If we have a bad fire up there this 
summer, if they lose one of their major Buckman wells, the city 
is going to be in very, very serious position. The city has a 
proposal for a new supplemental well. Apparently, they haven't 
been able to get approval to do that because it's on Federal 
lands, and we would like to get your help in trying to see if 
we can get Santa Fe a dependable water supply.
    On the Pecos River, we are working very hard on trying to 
address Pecos River issues. The State has developed a long-term 
compliance plan. This was developed with a lot of stakeholders 
up and down the Pecos River. The State has appropriated major 
funds to address these issues. We are, however, not out of the 
woods on the Pecos River. We will--still looking at some sort 
of a limited priority call. We are in the process of developing 
rules and regulations for this priority call. We do continue to 
be very worried about some of these cities up and down the 
Pecos River that have junior water rights; for instance, 
Roswell, or on some of the tributaries like Ruidoso, Ruidoso 
Downs, the Alto Lake area. These people have senior and junior 
water rights.
    The cities do want to grow. They're going to have to get a 
new water source in the Sacramento Mountains, which is where 
Ruidoso gets its water from. There is a very, very limited 
water supply. A lot of the waters in the Ruidoso basin are 
currently being exported out of the basin for use by the people 
of the Tularosa basin. I know that, Senator Domenici, you have 
introduced a bill for desalination. In the future, if 
desalination becomes a reality, I'd like to see if there's some 
way we could do a study about returning of water originating in 
the Ruidoso area to be used in the Ruidoso area, and see if we 
can get some of the users in the Tularosa basin to get water 
coming out of a desalination plant. And thank you.
    [The prepared statement of Mr. Turney follows:]
  Prepared Statement of Thomas C. Turney, New Mexico State Engineer, 
                              Santa Fe, NM
    New Mexicans have long depended on a partnership with the water 
management agencies of the United States to develop water and operate 
federal works upon which New Mexico water supplies and flood protection 
rely.
    This historical partnership has been turned on its ear by the 
Endangered Species Act. Drought conditions this year are the worst 
ever. Stream flows are at record lows on rivers across New Mexico. Yet, 
on the Rio Grande, federal agencies are draining the remaining stored 
water from upstream reservoirs to try and maintain a continuously 
flowing river through the Middle Valley to aid endangered species. 
These actions are simply not sustainable and will fail this year. In 
future years, if the current drought continues, hard choices will hit 
us squarely.
    The policy of the Governor is that New Mexico can and will allow 
water supplies to be provided for the conservation of endangered 
species provided that three simple conditions are met:
    First, water must be acquired by the United States and not just 
taken. Thank you, Senators, for your support of this important policy 
by your insistence that federal agencies purchase water and by 
providing the necessary appropriations that they may do so.
    Second, water must be acquired and used in accordance with New 
Mexico water law and water resources administration. We need the United 
States to acquire state permits for their changed uses of water, 
including uses of water for endangered species. The Bureau of 
Reclamation has partially complied on the Rio Grande but has ignored 
this requirement on the Pecos River.
    Third, there must be no diminishment of New Mexico's ability to 
comply with interstate stream compacts and make deliveries of water 
upon which downstream water users, both in New Mexico and in other 
downstream states, rely. I acknowledge and appreciate Reclamation's 
efforts to lease water to offset their depletions of scarce Pecos River 
water associated with their changed river operations to provide 
additional water in the river for the Pecos blunt nose shiner However, 
actions, and perhaps more importantly, inactions by agencies of the 
United States in the Rio Grande have materially impacted New Mexico's 
ability to deliver water to Elephant Butte Dam.
    This is particularly important because today, for the first time in 
24 years, the amount of water in Elephant Butte and Caballo Reservoirs 
that is legally available to water users in New Mexico and Texas below 
Elephant Butte Dam, will drop to less than 400,000 acre feet. Under 
these conditions, the Rio Grande Compact requires that New Mexico not 
allow increases in native water storage in reservoirs in New Mexico 
that were built after the Compact. That storage prohibition applies to 
most of Santa Fe's canyon reservoirs and to El Vado Reservoir, which 
supplies water to the farmers and other water users in the middle Rio 
Grande.
    Meanwhile, Reclamation is having a very difficult time with their 
responsibilities to maintain the channel of the Rio Grande to convey 
flow downstream. A temporary channel is needed to connect the Rio 
Grande through the sediment delta at the head of Elephant Butte 
Reservoir to the reservoir pool. Without this channel, the water 
spreads out and evaporates. The temporary channel start was delayed for 
two years due to ESA Section 7 consultation. The originally designed 
channel was partially constructed but failed at the first high flow. 
Inappropriately designed channel construction features, which I 
understand were required through ESA Section 7 consultation to mimic 
stream channel habitat in the reservoir delta, doomed it to fail under 
any high flow condition. Today, the channel has been constructed to its 
originally planned endpoint. But in the meantime the reservoir pool has 
receded many more miles downstream and will be 11 miles downstream at 
the end of this irrigation season. Extension of the existing channel 
can't start until this winter, at the earliest, because the required 
federal environmental law approvals have not been secured.
    Endangered species issues have also caused substantial changes in 
the maintenance of the channel of the Rio Grande through the Middle Rio 
Grande.Formerly when the channel of the Rio Grande shifted to a 
location where it threatened to erode the levee, simple and cheap fixes 
were used. Now, Endangered Species Act consultation has imposed 
extremely expensive approaches. The result is a backlog of maintenance 
sites and levees that are exposed to failure at flood levels that can 
be expected from intense thunderstorms once every two years.
    Most recently we have learned that the Fish and Wildlife Service 
proposes the Elephant Butte reservoir as critical habitat for the Rio 
Grande silvery minnow, even though the reservoir is very inhospitable 
habitat for the minnow. What additional restrictions will come from 
this designation?
    Federal funding for this crucial federal responsibility is 
inadequate. Reclamation recently wrote the Interstate Stream Commission 
asking the State to pay to replace Reclamation's worn-out equipment 
used for channel construction and maintenance, saving Reclamation's 
productivity would be doubled with new equipment because their existing 
equipment is broken so much of the time. I request you arrange for 
federal funding to meet this critical need.The State of New Mexico has 
recently completed replacement of the State-owned equipment that is on 
permanent loan to Reclamation for completion of their maintenance 
responsibilities.
    Thank you, Senators, for federal funds to be used to provide 
temporary emergency wells for the City of Santa Fe for use until their 
river diversion for San Juan-Chama water can be approved, designed, and 
constructed. Your additional assistance to encourage federal agencies 
to provide timely compliance with the requirements of the National 
Environmental Policy Act is also needed, so these funds can be 
expended. As each day passes, the severity of Santa Fe water supplies 
grow more serious.
    The current situation on the Pecos River is materially different 
compared to this time last year in three very important respects:

          1. A long-term consensus solution for New Mexico's compliance 
        with the Pecos River Compact and U.S. Supreme Court decree was 
        developed by a committee of Pecos water users working with the 
        New Mexico Interstate Stream Commission and the Office of the 
        State Engineer.
          2. Due to the support and emphasis of the water users 
        committee, the New Mexico Interstate Stream Commission 
        delivered additional water across the Texas state line. New 
        Mexico remains in continuous compliance with the U.S. Supreme 
        Court 1988 decree and has a small but important accrued state 
        line delivery credit that it will need to draw on in this 
        drought year.
          3. The Legislature and Governor passed and approved 
        substantive legislation authorizing the long-term solution, 
        providing very significant funding, and setting criteria for 
        implementation of the long-term solution.

    I want to acknowledge and thank the members of the water users 
committee. They have worked hard and accomplished results that are very 
significant and valuable.
    The Legislature and Governor appropriated and approved very 
generous funding for implementation of the long-term consensus 
solution, but expenditures are contingent upon compliance with the 
Legislature's criteria. Total extraordinary appropriations to the New 
Mexico Interstate Stream Commission for this purpose, and for continued 
short-term compliance, are approximately $37 million. Rep. Joe Stell 
and Sen. Tim Jennings were instrumental in the Legislation and in 
providing the appropriations. The New Mexico Interstate Stream 
Commission thanks them both for their leadership.
    Long-term compliance with the Pecos River Compact and Decree 
require that water uses in New Mexico be reduced and that we get water 
through the last dam in New Mexico for delivery to the Texas state 
line. This will be accomplished by the State of New Mexico's purchase 
of 18,000 acres of land and the associated water rights. The 
Legislation provides that 6,000 acres of assessed land be purchased 
within Carlsbad Irrigation District and 12,000 acres of irrigated land 
be purchased upstream between Sumner Dam and Brantley Dam. Groundwater 
also will be pumped from the Roswell basin aquifer, where it trapped by 
gravity even though water levels in the aquifer are steadily 
increasing, to increase downstream supplies for Carlsbad Irrigation 
District and for compact deliveries.
    The Legislation sets two important and difficult criteria that must 
be met before state funds are expended to buy land and the associated 
water rights.

   The decades old adjudication must be settled; and
   The New Mexico Interstate Stream Commission must enter into 
        contracts with Carlsbad Irrigation District, the Pecos Valley 
        Artesian Conservancy District, and Ft. Sumner Irrigation 
        District to ensure that the State's expenditures are 
        permanently effective in providing New Mexico's compliance with 
        the Pecos River Compact and Decree.

    Both of these criteria require the participation and cooperation of 
federal agencies. We look forward to receiving their participation and 
cooperation to solve this long-standing problem.
    The State is concerned about certain communities along the front 
range of the Sacramento Mountains which have post compact water rights. 
These water rights would be subject to curtailment under a Pecos River 
priority call. Examples of junior water right holders include Ruidoso, 
Ruidoso Downs, and Alto. The physical supply of water in this area is 
limited. To serve both existing demand and projected future growth, a 
new source of water is going to have to be developed for this area. A 
major portion of the water in originating in this area is now being 
exported out of the area for water use in the Tularosa area. As I 
understand, a bill has been introduced in Congress to provide for 
desalination of the large deposits of saline water within the Tularosa 
Basin. I would request that if a desalination plant is developed to 
provide a water supplies for stakeholders in the Tularosa basin, that 
as a part of the long range planning, serious consideration be given to 
develop a plan to allow the Ruidoso area waters, now being exported out 
of the area, to instead allow them to become part of the future 
available water supply for the existing and future growth that is now 
occurring in southern Lincoln County.
    Thank you for this opportunity to brief you.

    The Chairman. Thank you very much.
    Steve, why don't you go ahead.

 STATEMENT OF STEVE FARRIS, OFFICE OF THE NEW MEXICO ATTORNEY 
                            GENERAL

    Mr. Farris. Thank you, Mr. Chairman and Senator Domenici.
    On behalf of Attorney General Patricia Madrid, I'd like to 
thank you for holding this field hearing in Albuquerque and for 
the opportunity to testify to the committee. I'd like to give 
you an update on the ongoing Endangered Species Act litigation 
on the Rio Grande, tell you about two recent decisions, one of 
which Senator Domenici has already referred to, the one in 
Federal District Court; and the other decision, a decision of 
the Tenth Circuit Court of Appeals, and tell you what I think 
this may mean for the citizens of the Middle Rio Grande and for 
the endangered species.
    Both decisions appear to require major water use and 
management changes on the Rio Grande. In July 1999, the 
Secretary of the Interior published a final rule designating 
critical habitat for the Rio Grande silvery minnow. This was 
done pursuant to a lawsuit filed by the Forest Guardians 
against the Secretary, and after the Tenth Circuit's decision 
and remand to the district court, the Secretary was ordered to 
publish a rule within 90 days.
    After the final rule was published, the State of New Mexico 
filed suit against the Fish and Wildlife Service, claiming that 
the rule was arbitrary and capricious and not in accordance 
with the law because it failed to consider the enormous 
economic impacts that would result from the designation of 
critical habitat. The Middle Rio Grande Conservancy District 
and the Forest Guardians also filed a suit on similar grounds.
    The plaintiffs in these three lawsuits prevailed and Judge 
Mechem found that the critical habitat rule was arbitrary and 
capricious. He ordered that an environmental impact statement 
be completed and that a new rule designating critical habitat 
be completed within 120 days, and in so ruling, Judge Mechem 
noted that the Fish and Wildlife has dismissed the serious 
impacts on all non-Federal entities without regard for their 
dependence and the interrelationship between the Federal and 
non-Federal actions on the river. He noted, quote, ``an 
exceptional interrelationship between Federal and non-Federal 
in the Middle Rio Grande valley.''
    In the other Endangered Species Act case, the one referred 
to earlier by Senator Domenici, Judge Parker, on April 19, 
issued his memorandum opinion and order. In that order, the 
district court affirmed the biological opinion that had been 
issued by the Fish and Wildlife Service, and which had been 
made possible by the conservation water agreement between the 
State of New Mexico and the United States that was entered into 
last year, but the order went far beyond affirming that 
biological opinion. It noted that due to this year's record 
drought, it may be necessary to reinitiate consultation this 
year, and in any event, the biological opinion and conservation 
water agreement were set to expire on December 31, 2003.
    The district court then held that when consultation is 
reinitiated, the Bureau of Reclamation must consult on 
deliveries of native Rio Grande water to the Middle Rio Grande 
Conservancy District and the delivery of San Juan-Chama Project 
water to the municipalities and farmers of the middle valley. 
While this decision has been appealed by the State of New 
Mexico, the Middle Rio Grande Conservancy District, the city of 
Albuquerque, the Rio Chama Acequia Association, then the United 
States, if it stands, it most probably will result in major 
water use and management changes.
    Just 12 days ago, the Tenth Circuit Court of Appeals 
rendered its decision in the United States' appeal of Judge 
Mechem's order in the critical habitat case. While the Tenth 
Circuit upheld Judge Mechem's decision, it makes two disturbing 
assumptions in dicta discussing the effect of critical habitat 
designation: First of all, the court of appeals assumed that 
the designation of critical habitat will require Federal 
agencies to reallocate water in a fully allocated river from 
human uses to the river; and second, the opinion appears to 
assume that the Federal agencies have the unilateral authority 
to make such a reallocation.
    While the actions of the Federal agencies may ultimately be 
found by the courts to be unilateral, as Judge Mechem noted, 
the consequences of those actions certainly are not. The Tenth 
Circuit court's opinion states that, ``Because extensive 
reaches of the Middle Rio Grande are dry under current water 
management practices . . . the designation will require the 
Federal water manager to reallocate water for the Minnow's 
use.'' While this is clearly dicta, I think it may be 
significant to note that the appeal of Judge Parker's decision 
is going to this same circuit court of appeals where at least 
one panel has made these assumptions. We strongly disagree with 
those assumptions and we'll make our argument, but it is worth 
noting what the courts have said.
    All of this makes the point that litigation in the end may 
not provide a solution. It will give us decisions. It will bind 
us all, but it cannot determine the biological needs of the 
endangered species nor the hydrologic limits on what we may do 
to meet those needs.
    Litigation may result in the involuntary opening of our 
reservoirs to release water that we have stored for future 
human needs to the silvery minnow, but such action is not 
hydrologically sustainable. Not only will it result in economic 
and cultural upheaval in the middle valley, it will also not 
serve the long-term needs of the endangered species. We have, I 
am told, enough water to keep the river wet for its length from 
Cochiti and Elephant Butte Reservoirs for one year, maybe two. 
After that, the water will be gone, the river will dry, and the 
minnow will be in far worse condition than it is now.
    The best and only solution, I believe, is collaborative 
problem-solving. We must address the real limits of hydrology, 
the real biological needs of the species, and the needs of the 
citizens of the Middle Rio Grande. The best instrument for 
collaborative problem-solving remains a Middle Rio Grande 
Endangered Species Act Collaborative Program. I'd like to thank 
Senator Domenici and you, Mr. Chairman, for your continued 
interest and strong support of this program. There was a long 
period when the program did not appear to be making any 
headway, but I believe we have turned a corner and we have 
begun to make progress. We have a long way to go yet. It's a 
daunting task in front of us, but with your continued support, 
we can get there.
    Thank you.
    The Chairman. Thank you all very much. Let me start by 
asking Mayor Chavez, the city has this surface water diversion 
project that you are engaged in. What is the time frame for 
that? When would you expect to be able to bring that San Juan 
water on line through that diversion project?
    Mayor Chavez. Mr. Chairman, the contract has been certainly 
fully funded. We anticipate breaking ground here in just a 
matter of weeks. We anticipate, unless something untoward 
occurs in the Federal--some court or otherwise--cutting the 
ribbon four years from today.
    The Chairman. Would you expect that when you do cut the 
ribbon and the project is operating, that you would use your 
full allocation of water at that time?
    Mayor Chavez. Mr. Chairman, members of the committee, no, 
we don't. It would not--it's a gradual transition. The idea is 
to take the pressure off our aquifer, to return it to a 
situation of being sustainable within its own ecosystem in 
terms of water replenishment, and so there will be ample room 
for decades to come to work with other users on this system 
within the context of our needs. Of course, nobody can dictate 
or anticipate what will happen if we have more serious droughts 
than we've had today. My principal interest is in securing our 
legal right to protect our destiny, to preserve water.
    The Chairman. Let me ask the State engineer, let me ask you 
to go over this ground once more. You talked about how--under 
the Rio Grande compact that we have--that if the amount of 
storage in Elephant Butte drops below 400,000 acre feet, that 
that triggers a prohibition on us adding additional storage in 
two other resources--you mentioned, what, Santa Fe and El Vado?
    Mr. Turney. Yes.
    The Chairman. Tell me the practical effect of that, for 
example, on Santa Fe. Is there some practical effect that you 
see from the triggering of that condition?
    Mr. Turney. There is a very serious practical impact, and 
where you'll start to see is it is in 2 or 3 years. What we'll 
try and do, in the meantime, obviously, we're going to have to 
figure out a way for Santa Fe to store their water in Santa Fe 
Canyon this winter, so we'll try and do an exchange. But we 
have run out that scenario for 2 or 3 years, and if the drought 
continues, there won't be any San Juan-Chama water in storage 
for the city anymore, and it is going to be a major impact on 
the city below levels if it continues to stay below 400,000 
acre-feet, but in the meantime, we will be able to do this San 
Juan-Chama accounting exchange.
    The Chairman. But you think that accounting exchange only 
works for another year or two?
    Mr. Turney. About 2 more years, and then we begin to have 
negative--actually conditions on storage of San Juan-Chama 
water, and so what we'll try and do is let basically--whatever 
the water that the city of Santa Fe wants to store up the 
canyon, let's say it's 3,000 acre feet, next winter, if they 
can get that kind of flow, we will release 3,000 acre water out 
of San Juan-Chama project storage so that the river is kept 
whole.
    The Chairman. Okay. Let me defer to Senator Domenici for 
questions.
    Senator Domenici. Thank you very much, Mr. Chairman. I 
assume that when we are finished, that the mayor has to go, 
too, same as I.
    First, let me say to Steve Farris, I have only worked with 
you one time in my life. It was for a very extended period of 
time with reference to the time preceding the agreement that 
was rendered to the attorney general whom you represented as 
part of that, and I want to compliment the State of New Mexico 
and the attorney general. Sometimes we wonder whether our State 
agencies, because they can't pay the high prices that lawyers 
make, whether they have good counsel, and I want to tell you 
the people of New Mexico, as far as water counsel is concerned, 
they have a very good one for the salary they pay you, and I 
thank you for your hard work.
    Mr. Water Engineer, two things: We have not had an 
appropriation bill, and won't for another 3 months. We'll try 
to take care of your equipment issue. And so everyone will 
understand about Santa Fe, we have been trying as hard as we 
can to get this piece of land, Senator Bingaman, three or four 
of them that they can drill on. We've got the money ready, but 
we are told that since this is Bureau of Land Management 
property--and I hope you disassociate our government from us, 
and Mr. Mayor, we're not--Senator Bingaman and I are not on the 
side of taking Albuquerque's water--but what I want to tell you 
is, the BLM claims there's a rule that we have to go through an 
impact statement in order to drill those wells. Now we're 
trying very hard to just apply common sense and see if we can 
get that done. If we do, you'll have the money--Santa Fe will 
have the money very soon.
    Now, let me, while I'm at it, because I'm going to have to 
leave, let me say to the Middle Rio Grande Conservancy 
District, I know we are referring to you as the farmers now, 
that's all right by me and that's all right by you, but I want 
to say that I'm very pleased that we've come to the time when 
you are professionally recognized, and that was not the case 
years ago. You have adequate, good staff and, you know, I don't 
know where all the counsel that's so qualified is coming from, 
but they have great legal counsel on water issues, Mr. 
Chairman, so we don't have to worry about their rights, and I 
thank you for your cooperation.
    Now, Mr. Mayor, I want you to know that to say to two 
Senators that you want the government to quit having it both 
ways is not quite the way to say it, though I agree you can say 
it however you like. You see, the Endangered Species Act has 
been in existence for all the time he was in the Senate and I 
was in the Senate. No Senator has been able to change that law. 
Now, we think we're going to change all that.
    First of all, we have a Department of Fish and Wildlife 
that is talking differently, and we thank them profusely, 
because that may be the big difference in terms of endangered 
species. Did you hear of the Klamath case? That was the one 
that rendered agricultural land totally, totally dry; whereas, 
for many, many years, a number of thousands of acres were 
planted. That's because the Endangered Species Act won. Nobody 
can change it, at least not yet, but lo and behold, that was 
changed when it was too late, when it was found that the 
professional opinion was inadequate in determining the 
endangered species, so we're all loaded with all of this, but 
I'm speaking for myself and I'm hoping that whenever I call on 
Senator Bingaman, he agrees we cannot let the endangered 
species take water from Albuquerque and take the future of the 
water from Albuquerque, but we can expect that we all might 
work together and you might be assured of your water, but you 
might use it, in the meantime, in a legally binding approach 
that helps solve a problem if there's a victory at the other 
end, and I think that's what you are looking at.
    But we're going to help you and our people here, I am, and 
the Endangered Species Act doesn't make any sense to me in 
terms of taking that water, and I happen to be on both sides. 
$50 million was put on the burden of these people to pay for, 
and so you all know it isn't just a piece of water, it's about 
50,000 acre-feet. The State of New Mexico, Senator Bingaman, 
only got this, that 50,000 acre-feet out of the monstrous 
agreement that sent all the water from the San Juan and the 
Colorado to the State of Colorado and California. It made them 
not the green of today but the green of agriculture and growth; 
and what we got was this, our Senator succeeded in getting us 
this.
    It was measured very carefully as to how much they may 
need, and that's how it came across the mountains, as a tail 
end victory for New Mexico of the water that it might be able 
to get, out of the billions of dollars of projects that took 
the water to our sister States, so it is important that we not 
lose it.
    Senator Bingaman, I was a little doubtful today, on such 
short notice, that we would have much here, but it's pretty 
obvious to me that we now know where the issues are and have a 
plentiful supply of New Mexicans that are concerned and are 
professional, and I think there's one exception, perhaps, the 
endangered species spokesmen, but they all seem willing to see 
if we can't solve this problem, and I think that was a 
worthwhile afternoon. I thank you for it.
    The Chairman. Thank you for participating.
    Are you going to have to leave at this point? I think you 
are ready, or not?
    Mayor Chavez. Can I respond very briefly?
    The Chairman. Please, go right ahead.
    Mayor Chavez. Because here's where I find myself as mayor 
of Albuquerque, I'm not a legal expert in the areas that are in 
litigation, that's not what I went to law school for, but one 
of the concerns I have is that the Federal courts may, in fact, 
be directly construing both the Federal law and the regulatory 
aftermath of that law, which--and if that is the case, and they 
certainly seem to be consistently saying that they are, that 
leaves me with no recourse, as mayor of the city, but to turn 
to the body that writes the underlying law, and that's why I 
thought we may be at that point. But I am the first to 
recognize the hurdles that one would have to overcome sitting 
in the U.S. Senate or the House of Representatives when it 
comes to this legislation. I don't know where else to turn. You 
all are the ones. Thank you.
    The Chairman. All right. Well, thank you very much and 
thank this entire panel for your good testimony. We appreciate 
it.
    Why don't we go ahead with the third panel.
    Mr. Shah, why don't you go ahead. Thank you very much for 
being here.

STATEMENT OF SUBHAS K. SHAH, CHIEF ENGINEER, MIDDLE RIO GRANDE 
             CONSERVANCY DISTRICT, ALBUQUERQUE, NM

    Mr. Shah. Senator Bingaman and members of the staff, I 
would like, first, to thank all of you for coming to New Mexico 
and address these important issues of drought. I would like to 
also note that the title of this hearing refers to impacts on 
Federal projects. The MRGCD has been impacted greatly, but I 
need to clarify that it is not a Federal project. When the 
district was forming in 1925, we tried to become a reclamation 
project, which was turned down. As a result, it was financed by 
the locals, private and bonds.
    It was not until the 1950's when the United States, through 
the MRG project, elected to provide a loan to the district to 
pay off its bonds, and agreed, for a promise of full repayment, 
to do rehabilitation work on MRGCD dams, diversion dams, and 
other facilities. So far, right now, we have paid off both the 
projects, the Middle Rio Grande project and San Juan-Chama 
project. All water diverted for MRGCD farmers is held under 
State law, the United States holds no such rights, and with the 
exception of San Juan-Chama water, the United States delivers 
no water to MRGCD farmers.
    The district was formed in 1925. It has about 834 miles of 
canals and ditches, about 404 miles of drains, and we have 
several cities and towns along the Rio Grande and six middle 
Rio Grande pueblos. We have four different diversion dams we 
can use for our farmers.
    To conserve our precious water, the district has, for the 
last several years, been upgrading the metering system, to the 
point where now all the diversions are metered and return flows 
are also automatically metered. This improved system has 
allowed us to reduce diversions from the Rio Grande by as much 
as 15 percent. The farmers have also laser-leveled their fields 
and provided concrete-lined ditches. They use a piping system 
and several water conservation tactics they've begun to use.
    The district itself has a new rotational scheduling plan, 
by which, this year, the farmers get their water at certain 
scheduled times on this rotation schedule, so we have delivery 
of the water to the farmers as they need it.
    Drought recognizes no distinction between water rights. 
Mother Nature does not respect priorities. When she decides to 
create a drought, we all suffer. Fortunately, in the Western 
United States, we have had the wisdom to build reservoirs to 
guard against drought, and we have managed those reservoirs to 
guard against the possibility of drought.
    The drought we have this time is similar to one in the 
1950's. During that time, miles of the river went dry for 
months at a time. That was because the drought was extended and 
there was insufficient reservoir storage to cover an extended 
drought. Had this drought occurred in 1907, the river would 
have been dry from Albuquerque to El Paso because there was no 
storage whatsoever. This year, a provision of the Rio Grande 
Compact will also come into play. Like Tom Turney, State 
engineer, says, if we go to the point of usable water at 
Elephant Butte, El Vado will be affected and we may not be able 
to store water in El Vado. That means we may not be able to 
provide water to our farmers.
    However, because of our upstream storage and the 
importation of San Juan-Chama water, the district has been able 
to reach an agreement with the city of Albuquerque to receive 
70,000 acre-feet of water, which will last--we are hoping to 
last until the end of the season. And this water combined with 
the agreement which the city has with the Bureau of 
Reclamation, 40,000 acre feet, we can provide for the minnows 
also. The minnow water will be carried on top of the district 
water. We are hoping that we will have enough for the rest of 
the season. If this dryness continues, then we may have some 
troubles in the later part of the season.
    The ability to meet this year's needs should not be viewed 
as a solution to the problem of the drought. To the contrary, a 
host of factors have placed the MRGCD farmers at peril. The 
first of this is an Endangered Species Act.
    The Endangered Species Act has been interpreted as trumping 
all other needs, even though we now know from the Klamath 
Falls, Oregon experience, the biology supporting decisions 
under that Act can be flawed. A similar error occurred here. In 
the year 2000, the Federal biological consensus was that the 
minnow needs a constant flow the entire Rio Grande stretch, 
amounting to some 300 cfs at Isleta Dam. As a result, more than 
200,000 acre-feet of water was released from upstream to the 
Rio Grande in the year 2000.
    As a result of a reevaluation of the biology, the amount of 
water required by the minnow was reduced to 100 cfs for 2002, 
and intermittency of flow was allowed. Even though an 
additional 40,000 acre-feet of water has been acquired from the 
City--acquired from the city for the minnow, this may not be 
enough for this year.
    In short, because of Federal court interpretations of ESA 
mandates, we have used up our storage. Without major inflows 
next year, there will be no water for the silvery minnows and 
none for the farmers. We have not chosen to manage for drought, 
we have chosen to manage for the ESA. While the MRGCD is happy 
to receive water for irrigation this year, by ignoring drought 
and managing for the species, we may not--we may have done a 
great disservice to both ESA and the farmers.
    Another factor is the amount of vegetation which consumes 
the water in the Rio Grande.
    In closing, the MRGCD and silvery minnow will make it 
through this year, but if this year is followed by another 
drought year similar in scope, we will all pay for our failure 
to recognize that Mother Nature is neutral in allocation of 
water. She is not subject to Federal courts' jurisdiction or 
injunction, and without properly utilizing available storage, 
all the Federal laws in the world will not make water for the 
downstream users.
    Thank you, Mr. Chairman. I'll be happy to answer any 
questions. If you have any questions, we have our legal 
counsel, Chuck DuMars, here to answer your questions. Thank 
you.
    [The prepared statement of Mr. Shah follows:]

Prepared Statement of Subhas K. Shah, Chief Engineer, Middle Rio Grande 
                 Conservancy District, Albuquerque, NM

    Senator's Bingaman, and Domenici, members of the staff. I would 
first like to thank all of you for coming to New Mexico to address the 
important issues of drought effects on water users in New Mexico, on 
rivers such as the Rio Grande with highly variable flows. I note the 
title of this hearing refers to impacts on ``Federal projects''. The 
Middle Rio Grande Conservancy District has been impacted greatly, but I 
need to clarify that it is not a Federal project. When the MRGCD was 
formed in 1925, it attempted to become a Reclamation project and was 
turned down. As a result it was financed with state and private capital 
and bonds.
    It was not until the 1950's that the United States, through the 
Middle Rio Grande Project, elected to provide a loan to the MRGCD to 
pay off its bonds and agreed, for a promise of full re-payment, to do 
rehabilitation work on MRGCD diversion dams and other facilities. All 
obligations for the loan and the rehabilitation for the Middle Rio 
Grande Project and the MRGCD's share of San Juan/Chama repayment 
obligations have been fully re paid. All water diverted for middle Rio 
Grande farmers is held under state law, the United Sates holds no such 
rights, and with the exception of San Juan/Chama water, the United 
States delivers no water to MRGCD farmers.
    The Middle Rio Grande Conservancy District was created in 1925 to 
provide river flood control, drainage, and irrigation water to the 
middle Rio Grande valley. Today, the MRGCD extends from Cochiti Dam 
south for approximately 150 miles to the northern boundary of the 
Bosque del Apache National Wildlife Refuge. MRGCD encompasses 
approximately 278,000 acres in four counties. At present, some 11,000 
irrigators on approximately 73,000 acres are using irrigation water. 
Within the District's boundaries are thousands of property owners and 
many towns and villages, six Indian pueblos, and much of the City of 
Albuquerque. MRGCD owns and manages El Vado storage dam on the Chama 
River, three diversion dams on the Rio Grande, 834 miles of canals and 
ditches, and 404 miles of riverside drains that are capable of 
delivering water for irrigation and a variety of other purposes.
    The value of crops grown by farmers in the MRGCD exceeds $30 
million annually, and with a standard economic multiplier that economic 
value easily exceeds $75 million. Migratory birds using the Rio Grande 
flyway also take advantage of the thousands of acres of farmland as a 
rich source of food, and many other species of wildlife use the 
hundreds of miles of riparian habitat that is supported by the MRGCD's 
facilities. The middle Rio Grande bosque, which is the largest 
contiguous riparian forest in the southwest, is largely a product of 
the MRGCD's flood control facilities, and is to a great extent 
supported by the irrigation water delivery system.
    To conserve our precious water, the MRGCD has for the last several 
years been upgrading the water metering system, to the point where now 
all diversions from the river and most return flows are now 
automatically metered. This improved system has allowed MRGCD to reduce 
diversions from the Rio Grande by as much as 15% without adversely 
affecting our water users. Farmers themselves have also stepped up to 
the plate, instituting laser leveling on most of the irrigated land in 
the MRGCD, and lining many irrigation canals to prevent seepage. In 
cooperation with the Natural Resources Conservation Service and the 
MRGCD, a farmer in Socorro County has installed a experimental 4-acre 
drip irrigation system to water an alfalfa field. To date, he has been 
able to increase production while reducing water consumption by as much 
as 30%.
    Drought recognizes no distinction between water rights. Mother 
nature does not respect priorities. When she decides to create a 
drought, all suffer. Fortunately, in the western United States we have 
had the wisdom to build reservoirs to guard against drought. And, we 
have managed those reservoirs to guard against the possibility of 
drought.
    The only drought of record similar to this one was that of the 
1950's. During that time miles of the river were dry for months at a 
time. That was because the drought was extended and there was 
insufficient reservoir storage to cover an extended drought. Had this 
drought occurred in 1907, the river would have been dry from 
Albuquerque to almost El Paso because there was no storage whatsoever. 
This year, a provision of the Rio Grande Compact will come into play 
next week, whereby the quantity of water stored at Elephant Butte 
Reservoir will drop below 400,000 acre-feet. One result of that will be 
that MRGCD and other entities will be unable to store water in upstream 
reservoirs until the storage at Elephant Butte exceeds 400,000 acre-
feet. That means that if the current drought persists, neither the 
farmers of the MRGCD nor the endangered silvery minnow will have the 
benefit of water stored upstream.
    However, because of our upstream storage and the importation and 
storage of San Juan/Chama water, the MRGCD has been able to reach an 
agreement with the City of Albuquerque and the Bureau of Reclamation 
for supplemental water supplies to augment the virtual absence of 
native flows and the MRGCD's San Juan/Chama entitlement. The Pueblos 
likewise will have a full supply.
    The ability to minimally meet this year's needs should not be 
viewed as a solution to the problem of drought. To the contrary, a host 
of factors have placed the MRGCD farmers at peril. The first of these 
is the Endangered Species Act.
    The Endangered Species Act has been interpreted as trumping all 
other needs, even though we now know from the Klamath Falls, Oregon 
experience, the biology supporting decisions under that Act can be 
flawed. A similar error occurred here. In the year 2000, the Federal 
biological consensus was that the silvery minnow required a constant 
flow the entire middle reach of the Rio Grande, amounting to some 300 
cfs at Isleta dam. As a result, more than 200 thousand acre-feet of 
water was released from upstream drought storage and run down the river 
in the year 2000.
    As a result of a re-evaluation of the biology, the amount of water 
``required'' by the minnow was reduced to 100 cfs for 2002, and 
intermittency of flow is now allowed. Even so, an additional 40 
thousand acre-feet of water has been released from drought storage for 
the silvery minnow so far this year, and that may not be enough.
    In short, because of Federal court interpretations of ESA mandates, 
we have used up our storage. Without major inflows next year, there 
will be no water for the silvery minnow and none for the farmers. We 
have not chosen to manage for drought; we have chosen to manage for the 
ESA While the MRGCD is happy to receive the water for irrigation this 
year, by ignoring drought and managing for the species, we may have 
done a great disservice to both the ESA and the farmers.
    Another major factor limiting the ability of farmers to cope with 
drought is the emergence of water thieves in the form of non-native 
vegetation such as Russian olives and salt cedars. We now know that in 
times of severe drought these phreatophytes are served first before 
native species, before Pueblos, and before farmers. Without an 
extensive program to eradicate this vegetation our river will serve 
these invaders instead of those that really need the water.
    In closing, the MRGCD and the silvery minnow will make it through 
this year, but if this year is followed by another drought year, 
similar in scope, we will all pay for our failure to recognize that 
mother nature is neutral in allocation of water. She is not subject to 
Federal court injunction, and without properly utilizing available 
storage, all the Federal laws in the world will not make water for the 
downstream users.
    Thank you very much for the opportunity to speak. I will stand for 
questions, and if there are any legal questions, the MRGCD legal 
counsel, Mr. Charles DuMars will answer them.

    The Chairman. Very good. Let me go ahead and hear from Mr. 
Sulnick right now. Thank you very much for being here.

STATEMENT OF ROBERT H. SULNICK, CAMPAIGN MANAGER, ALLIANCE FOR 
                    THE RIO GRANDE HERITAGE

    Mr. Sulnick. Thank you.
    Mr. Chairman, members of the committee, my name is Robert 
H. Sulnick. I'm the campaign manager for the Alliance for Rio 
Grande Heritage, the alliance--coalition of environmental 
organizations working to preserve and restore the Rio Grande in 
its upper basin. Members include Amigos Bravos, Audubon, 
Defenders of Wildlife, Forest Guardians, Land and Water Fund of 
the Rockies, New Mexico PIRG, Rio Grande/Rio Bravo Basin 
Coalition, Rio Grande Restoration, Sierra Club, Southwest 
Environmental Center, and the World Wildlife Fund.
    New Mexico's in the midst of a 100-year drought. The 
drought threatens Rio Grande acequias, pueblos, farmers, cites 
and endangered species alike. I would like to add that when we 
talk about the silvery minnow being endangered, we're talking 
it as a signal that the entire ecosystem is, in fact, 
endangered or the species would not be endangered.
    Throughout the entire Rio Grande basin, all segments of 
society are attempting to understand the implications of 
decreased watershed runoff and declining wells and aquifers. 
Today responses to the drought have been either reactive or 
insular. Santa Fe is seeking emergency permission from the 
State Engineer, as you just heard, to drill additional wells in 
the Buckner Field. Albuquerque, the Middle Rio Grande 
Conservancy District, and the Bureau of Reclamation, subsequent 
to Judge Parker's decision on the minnow litigation, have 
worked out an interim response which will provide water for 
both farmers and the minnow.
    I would like to add that both the city of Albuquerque and 
the Bureau are to be commended on the way they worked out that 
response.
    Other constituencies, including our own, are hunkered down 
trying to protect their own interests, whether it be farming, 
economic or environmental. Neither a reactive or insular 
approach can solve the water problem facing the basin. Reactive 
approaches are, by definition, not solutions. They simply 
ensure that contention will reemerge during the next inevitable 
drought cycle.
    It's also important to stress that fighting over a scarce 
resource makes no sense at all, because such cannot possibly 
solve the problem. Problem-solving in the context of drought in 
a desert landscape can only be done through cooperation and 
mutual compassion, and I would stress the word ``compassion.''
    The basin needs regional water plans which accept that we 
live in a desert, drought is periodically inevitable, global 
climate change is affecting us, and that all of us in the Rio 
Grande basin are interconnected by such things as an over-
appropriated river, senior water rights, compact obligations, 
and laws which protect endangered species. Indeed, all of these 
things are simply manifestations of the fact that societies 
living along rivers can only flourish if they learn to 
cooperate. The alternative, contention, leads only to 
litigation, acrimony and wasted energy.
    I believe that solving our problems require that we take 
advantage of all available techniques and technologies. Some of 
these include forbearance, conservation, metering, aquifer 
recharge, bosque restoration, water storage for both economic 
and environmental interests, and leadership from the top down. 
Forbearance is a win-win approach to drought. In water-starved 
years, holders can voluntarily lease their water to provide 
instant help for the river, endangered species are protected, 
unwise and costly litigation is avoided and water holders 
receive compensation in lieu of a crop. Nothing is lost, a lot 
is gained.
    Conservation, both urban and rural, must become standard 
operating procedure. If Federal economic assistance is needed, 
conservation should, in my view, become a first priority item. 
All new buildings should be required to use water conservation 
devices. These devices are not new products. They're being used 
all over the world, and have been for years. Urban centers 
should not be watering medians, public places can be 
xeriscaped, fines should be levied for excessive water use. 
Planners must take into account the availability of water 
before issuing permits.
    Conservation should not necessarily be used to fuel new 
development. Those who save water should be allowed to choose 
where they want it used, including used for Rio Grande 
restoration. Rural water users, likewise, should employ 
conversation techniques. As Subhas Shah just said, fields are 
being lasered, which is excellent. Water should be carefully 
monitored, and so on.
    As an aside, I would like to add that, in my view, there is 
a large reservoir of support for water conservation both 
amongst urban and rural constituencies, and that we should 
begin tapping them. Aquifer recharge is something cities should 
consider. It's being done successfully in California and 
Arizona. Water technology clean can clean waste water. Offset 
considerations will have to be balanced, but aquifers have to 
be recharged. Salt cedar and Russian olive and other exotics 
should be removed from the bosque. Thereafter, the bosque 
should be restored lest the exotics become reestablished. Such 
restoration would not only provide additional water, it would 
begin restoring the Rio Grande as a living river, and it is a 
living river that we are after, both economically and 
aesthetically.
    Many of the constituencies along the Rio Grande are 
interested in additional water storage. I think this should be 
facilitated both for economic and environmental reasons. 
Obviously, I'm proposing a doctrine wherein all river cultures 
learn to live together within the biological means and 
limitations of a desert community; to a degree, that involves 
``equal misery.'' I would also like to add that when 
considering the drought policy, the Alliance considers pueblos, 
acequias and farmers an integral part of the river's ecosystem 
which must be preserved along with species and riparian 
habitat.
    In closing, I would like to acknowledge your leadership and 
say that the Alliance would very much like to help in achieving 
some sort of regional cooperative approach to drought 
management.
    The Chairman. Thank you very much.
    Governor Quintana.

            STATEMENT OF ANDREW QUINTANA, GOVERNOR, 
                       PUEBLO DE COCHITI

    Governor Quintana. Good afternoon, Chairman Bingaman. And 
Senator Domenici was here, but he's gone.
    I am Governor Andrew Quintana of Pueblo de Cochiti. I 
welcome the opportunity to address the committee on the issue 
of Pueblo de Cochiti's relationship with Cochiti Dam, which has 
taken on new importance because of the drought.
    The Pueblo has continually faced such critical issues since 
the dam was first built on Pueblo land in the mid-1960's. The 
dam's operations directly affect our community, as well as 
others' downstream. We also feel that construction of the dam 
has directly contributed to the decline of the silvery minnow. 
There was a thriving silvery minnow population in the Rio 
Grande on our Pueblo when the dam and the reservoir was 
constructed, severely disrupting their historic river habitat 
here. The Pueblo did not create this situation, yet we live 
with the consequences. Please be aware that the Pueblo does not 
realize any economic benefit from the operation of the dam, but 
has to deal with its problems on a daily basis.
    The Pueblo's opposition to construction of the dam is well 
known to the Senators. The Pueblo did reluctantly accept a 
token payment of $145,000 for a perpetual easement to the 
United States for the dam; otherwise, the site would have been 
condemned. In 1965, our most profoundly sacred shrine that we 
share with other tribes was blown up by the Corps of Engineers 
to make way for the Cochiti Dam. Traditional family farms, 
homes and other shrines were flooded or destroyed. Our dead 
were unearthed, our religious practices were disrupted. Other 
tribes unjustly criticized the Pueblo for the loss of their 
shrines. After the dam was built, our remaining farm lands were 
ruined by seepage as the reservoir filled up.
    In 1995, after several years of litigation over the seepage 
issue, the Pueblo and the Corps settled the lawsuit with 
congressional approval, and the Pueblo began to resume its 
traditional agricultural practices. A provision in the pending 
Indian Technical Amendments bill would allow us to use part of 
the operations and maintenance fund created by the settlement 
to help revive our farming tradition.
    Today, the Pueblo has an excellent working relationship 
with the Corps. Earlier this summer, the Corps and the 
congressional delegation supported the Pueblo's opposition to 
BOR's proposal to drain Cochiti reservoir to provide water for 
the silvery minnow. In its original presentation to the Pueblo, 
BOR said that it would be willing to ignore Federal law and 
study the effects of drainage later. There was no consideration 
of the effect of the drainage on the Pueblo, but as the Corps 
discovered when it drained the Jemez Canyon Dam, reservoir 
drainage can have many unexpected impacts.
    Under the Corps' easement for the dam and the controlling 
legislation, the dam's operations are limited to flood and 
sediment control, recreation, and for the enhancement of fish 
and wildlife in the reservoir area. In addition, the Pueblo has 
a contract and statutory right for a permanent reservoir pool 
of 1,200 surface acres, but now the drought has raised 
questions of how Cochiti Dam can best be managed.
    The Pueblo hereby proposes that Congress authorize and 
adequately fund a joint study by the Corps and the Pueblo of 
options for future management of Cochiti Dam. We emphasize that 
this should be a conceptual study and not a full EIS, because 
the Corps and the Pueblo would be free to develop and analyze 
options that are not permitted under statute in the easement 
for the dam. The findings of such study could not be appealed 
and litigated like an EIS probably would be, although it would 
serve as the foundation of a subsequent EIS--as the 
foundation--I'm sorry, as the foundation of a subsequent EIS. 
This would, therefore, be a very cost effective approach.
    The Corps supports this proposal. The Pueblo is currently 
working with other Federal agencies, such as the USGS and DOE, 
on dam-related studies. One of our current studies focuses on 
radioactive contamination in the reservoir sediment. The 
potential effects of any new management options should be 
considered in the study. Our hope is to incorporate lessons 
learned and to avoid the mistakes of the past.
    This concludes my oral testimony. The Pueblo and other 
tribes may be submitting written testimony in the next few 
days. Thank you, sir.
    The Chairman. Well, thank you very much.
    Governor Quintana. I'm available for any questions.
    The Chairman. Thanks to all of you, and if there are others 
that wish to submit written statements, we are glad to receive 
those.
    Mr. Shah, let me ask you, if I understand the thrust of 
your testimony, your concern with the Federal court decisions 
interpreting the Endangered Species Act or applying it, are not 
just that they've got the priorities on use wrong, but you're 
also very concerned that the Federal Court is ordering a 
certain minimum amount of flow at a time when you believe there 
should not be any additional releases. Is that what I'm 
understanding?
    Mr. Shah. Chairman Bingaman, the Federal court has not told 
us as to how much flow we need, but the U.S. Bureau of 
Reclamation, Fish and Wildlife, and Federal agencies have 
requested a certain amount of flow is needed in the river, and 
they have tried to acquire the necessary water for the minnows, 
but the results are vicious. Quite often, the district has to 
allow this water to run down the river, and which has caused 
some impact on the district farmers.
    The Chairman. But your thought is that the Federal court 
interpretation of the Endangered Species Act mandates, are what 
have caused us to use up our storage?
    Mr. Shah. Yes.
    The Chairman. And that is--you are talking about the Middle 
Rio Grande Conservancy District storage.
    Mr. Shah. Yes, we have San Juan-Chama water and native 
water.
    The Chairman. And you believe that storage would still be 
there and usable in the next year, were it not for these 
Federal court interpretations?
    Mr. Shah. That is true.
    The Chairman. Okay.
    Mr. Sulnick, did you have any recommendation for what those 
of us in Congress ought to be doing at this stage? We seem to 
have a very adverse situation here where one course of action 
is sort of pray for rain, which we are all engaged in, and 
another is to try to continue the cooperative efforts to get 
through this very difficult drought period, but essentially 
recognize that the laws and regulations in place are fairly 
much what they should be. And a third position, which I have 
heard expressed here today, and in many other places, as well, 
many other times, is that we should have a pretty dramatic 
change in Federal law and Federal regulation so as to avoid 
getting into the circumstance we find ourselves in. What is 
your position as to those options?
    Mr. Sulnick. Well, Senator, the changes in law that I would 
be in favor of would be the enactment of a forbearance program, 
enactment of measures that assist in conservation being 
implemented on the ground, and changes in State law that would 
allow for water to be held for future use. And I would think 
that that kind of leadership coming from Washington would be 
most welcome in our region, because the parties, in my view, at 
the moment, are all kind of in their own positions, kind of 
contending with each other, rather than cooperating with each 
other, and I don't think that we can have a solution to our 
problem any other way than through a cooperative approach. And 
I think that leadership from yourself and Senator Domenici in 
that regard would be most welcome.
    The Chairman. Okay.
    Mr. Sulnick. I'd also like to add that, from my point of 
view, I think that to make the Endangered Species Act a 
scapegoat is not really a realistic conversation. The real 
conversation is how best to manage our water that we have, 
acknowledging that the Rio Grande, as a living system, is 
valuable economically to the State, is valuable spiritually to 
the State, and that we don't want the river to die, and that 
should become part of the equation, the same way we don't want 
the cultures of the Rio Grande to die, so it seems to me that 
it's all the same conversation. And then what's required at the 
moment is some kind of leadership to bring us all together to 
face that reality.
    The Chairman. All right. Governor Quintana, you refer in 
your testimony here to the resumption of your traditional 
agricultural practices.
    Governor Quintana. Yes, sir.
    The Chairman. I notice a few years ago, you did make a 
request to us in Congress for assistance with dealing with this 
seepage problem, and I believe funds were appropriated.
    Governor Quintana. Yes, sir.
    The Chairman. Has that problem been resolved to the 
satisfaction of the Pueblo?
    Governor Quintana. Yes, sir. The drainage system is working 
very well. As a matter of fact, too well in some places. It's 
drying up the land. But it's working, yes.
    The Chairman. Good. All right.
    Well, I appreciate the testimony of all three of you, and I 
will go ahead with the final panel here. Thank you all.
    Okay. Why don't we go ahead with this final panel. I 
appreciate everybody's patience here. We have a lot of 
witnesses today, but we wanted to give everyone a chance to 
speak.
    Mr. Armstrong, president of the Fort Sumner Irrigation 
District, why don't you start. Go ahead, please.

           STATEMENT OF LESLIE ARMSTRONG, PRESIDENT, 
                FORT SUMNER IRRIGATION DISTRICT

    Mr. Armstrong. Okay. Thank you, Mr. Chairman. I'm Leslie 
Armstrong, president of the Fort Sumner Irrigation District.
    The Chairman. Do you have that microphone on, or do you 
want one there?
    Mr. Armstrong. Is it working?
    The Chairman. It is working like a charm.
    Mr. Armstrong. I'm Leslie Armstrong, chairman of the Fort 
Sumner Irrigation District, and on behalf of the district and 
our board and our farmers, I'd like to thank you for the 
opportunity to come here today.
    First of all, our district is owned and operated by the 
farmers. They're private water rights; they're not really part 
of a reclamation project as some are. We became involved 
through a loan program, which was necessitated by failure of 
diversions several times in a row, and unable to borrow money 
from private enterprise, we borrowed money from the Bureau, 
which we have, over the years have been making repayments and 
operating and managing our system.
    And anyway, our board members serve on a volunteer basis, 
and I'd like to give a brief description of our district and 
then describe problems we are facing due to the drought in the 
Pecos, and so I'd like to include a recent lawsuit that seeks 
to take water from us to provide downstream flow for the minnow 
and the bluntnose shiner.
    Okay. Fort Sumner Irrigation District's irrigation there 
began in the Fort Sumner Valley, as it more or less is known 
now, in the 1860's. There's one historian has documented that 
there was irrigation existing there as early as the 1400's.
    In 1919, the farmers got together and created the Fort 
Sumner Irrigation District to help carry out the farming and 
the rotation over their water. We're located on the Pecos River 
in De Baca County, and we comprise approximately 6,500 acres, 
and about 586 farm population is involved. We operate, 
currently, under the Hope Decree with a water right of a direct 
diversion right from the river of 100 cubic feet per second, 
not to exceed that; whatever the river flow is, not to exceed 
100 cubic feet. This goes through March through October with 
two 2-week periods during the winter months to maintain the 
viability of the crops in dry periods.
    And as I said a while ago, in 1941, 1942, the floods came 
several times. The diversions were washed out more than one 
time and that necessitated us trying to borrow money to 
construct a more permanent type diversion, which we did, 
through the Pecos River Compact, which was passed by 
legislators, and we borrowed money from the Bureau and rebuilt 
our diversion, which was completed in 1951.
    Since that time, we've made semiannual payments. We've 
always operated and and maintained our structures, and we 
still, at this time, owe about 1.3 million, which we hope to 
someday pay off.
    Let's see, now to go on to the effects of the drought 
that's hitting us, we are--as surface water diverters, of 
course, we're dependent on the natural flow of the Pecos River, 
and with virtually no snowpack or runoff from snowpack this 
year, it has proven to be very tough on our farmers that the 
water flow is very low. We've restricted our farmers to 30 
minutes per acre for irrigation on--per rotation, which means 
that only the fields in the best condition and have the best 
ditches are able to irrigate in that length of time, so many 
fields are being left unirrigated due to a lack of time to get 
them irrigated, just in an attempt to try to keep the water 
moving and keep as many of the crops alive as we can.
    In a way, it's our outlook that if we do not receive some 
rains to increase the river flow, then so much of the river, 
like above Santa Rosa Dam, has been dry for some time, and the 
only water flow we have at this time, really, is the spring 
flows from the Puerta de Luna, below Santa Rosa, to flow 
through the Sumner Reservoir to our diversion, and they've 
dropped very low and we're somewhere around 60 cfs is all 
they're producing. They've been down, I think, as low as 
probably 45, 47, but they're fluctuating back and forth with 
little showers, but without rain, we figure within the next 
month that we'll probably be running out of water for both the 
farmers and the fish.
    Another deal compounding our problems is--the effects of 
the drought, we are concerned with the downstream flow demands 
mandated by the Pecos River Compact and by the Endangered 
Species Act that will put pressure on the Fort Sumner 
Irrigation District to forego irrigation, and any forbearance 
of this type or to--could undermine the viability of the 
district itself; the farmers in the valley, without their 
crops, will go bankrupt, as well. If they go under, this is the 
largest portion of the income for the county. We have one town 
in De Baca County, which is Fort Sumner, which they depend on 
the farming community for their income, so without the farming 
income, the village of Fort Sumner goes under, as well as the 
county; could put both put out of business.
    And our farmers have to have water rights for one purpose, 
and that is to farm; however, they have been willing to enter 
into short-term water leases, you know, as demands require, to 
try to keep everything going.
    Now, to go onto the Pecos River Compact, we feel that one 
of the problems with it is the way it was developed, the 
changes that have come about since that time, which I'll get 
into later, that we support the State's long-term policy of 
purchasing and retiring water rights on the Pecos Valley to try 
to come up with enough water to supply State line delivery; 
however, we don't believe that this is for the short-term 
immediate, and the fairly long-term, but not the actual answer 
to our problem. And we think that this should--also, that the 
legislature's recent passing of the water banking legislation, 
which, they're working on regulations for, that we hope they'll 
label this for, which would give districts and those that have 
water a chance to put water into the water bank to be purchased 
by those needing the water.
    The Endangered Species Act comes in to demanding that--it 
was 2 years ago, they demanded that the Bureau wanted to cut 
our diversion off on behalf of the endangered species and take 
our water. Well, then, the most recent lawsuit, as of last 
week, has named our diversion again for the Bureau to take over 
control of our diversion and to make our water available for 
the minnow, which is taking of private rights, and we feel that 
if they want water, it should be paid for and it's not to be 
taken.
    I'd like to get on to what I feel is two more problems with 
the endangered species and the State line delivery of water. 
One thing is that New Mexico takes the full brunt of the water 
released for the Pecos bluntnose shiner. Any water that's 
released from the reservoirs down the river for the shiner adds 
to the debt that we have on the compact to Texas, and we feel 
that we should get credit for this water; it should not be 
counted against our debt to Texas, New Mexico shouldn't. Texas 
should share in the expense.
    And the last thing I have to consider is long-term 
solution, is that the major cause of a shortage of water in the 
Pecos River is water users that have been allowed to increase 
over the years virtually unchecked. These are not people with 
legitimate water rights, but woody plants and species: Pinon 
juniper in the upper watersheds, and mesquite in the lower 
watersheds, and the salt cedar in the tributaries to the Pecos 
River. Over the years, PJ has invaded our grassy meadows and 
rolling hills; and mesquite has invaded our grassy plains; and 
salt cedar our streams and tributaries to the Pecos River, as 
well as the main river channel itself.
    Being higher water users than the climax vegetation, such 
as grass, they have dried up springs and streams that feed the 
Pecos River. They not only dry up surface water, but they are 
plants with long tap roots that take deep groundwater, as well, 
thus reducing the underground recharge of the wells in the 
Pecos Valley. This problem is compounded in times of drought; 
because they're up in the watershed, they get their water 
first. It was not a problem that happened overnight, and it 
won't be fixed in a day, and we need to start immediately to 
work on it. It'll be a long-term project, but we feel that 
since the majority of the upper watershed is Federally owned 
lands, that directives and funds should be given to these 
agencies to treat and recover the watersheds. Funds also need 
to be made available to private landowners to treat their parts 
of the watershed. The recent farm bill allows a 50 to 60 
percent cost share, but with the economics the way it is today, 
that is not enough for the ranchers to afford to do it.
    And with this, I appreciate your efforts to protect our 
water rights and to enhance stream flows in the Pecos River, 
and on behalf of the Fort Sumner Irrigation District, I thank 
you for this opportunity.
    [The prepared statement of Mr. Armstrong follows:]
          Prepared Statement of Leslie Armstrong, President, 
                    Fort Sumner Irrigation District
    Mr. Chairman, I am Leslie Armstrong, President of the Fort Sumner 
Irrigation District. On behalf of the FSID Board and farmers, I 
appreciate the opportunity to provide the following remarks regarding 
the effects of drought on our District. I would like to give you a 
brief description of our District and then describe the problems we are 
facing because of drought on the Pecos River, including the recent 
lawsuit that seeks to take water from us to provide instream flows for 
the Pecos bluntnose shiner.

                   I. SID'S WATER RIGHT AND WATER USE

    The first irrigation in the Fort Sumner valley began in the 1860s. 
In 1919, local farmers created FSID to help carry out farming in the 
valley. Located on the east bank of the Pecos River in De Baca County, 
FSID encompasses approximately 6,500 acres of irrigable land, of which 
approximately 6,300 acres are currently under irrigation. The principal 
crops are alfalfa, hay, corn, grain sorghum, wheat, vegetables and 
melons. FSID serves 282 farms with a farm population of 586. Under the 
Hope Community Ditch Decree, FSID and its landowners have a right to 
divert 100 cubic feet per second (cfs) of water from the Pecos River 
during the months of March through October, and two eight-day periods 
during the winter months.
    In 1941 and 1942, floods necessitated costly repairs, which were 
only temporary, and by 1946 the system needed complete rehabilitation. 
FSID could not secure private funding, so it requested assistance from 
the U.S. Bureau of Reclamation (BOR). In 1948 and 1949, after 
ratification of the Pecos River Compact, Congress passed authorizing 
legislation for the Fort Sumner Project. Pursuant to a 1949 repayment 
contract between FSID and BOR, BOR completed rehabilitation of the 
irrigation works in 1951. In order to secure the loan, FSID used the 
dam as collateral. Once FSID pays off the remaining balance of $1.3 
million and Congress relinquishes its lien, the District will own the 
dam free and clear.

               II. THE EFFECTS OF DROUGHT ON OUR DISTRICT

    As a surface water diverter with no storage, FSID is highly 
dependent on the natural flows of the Pecos River. With virtually no 
run-off from snow pack, the 2002 irrigation season is proving to be 
tough on FSID farmers. Currently, our diversion amount is just over 
half of our natural flow water right and prospects for the remainder of 
the season do not look good. In addition, poor water quality is 
reducing crop productivity. Unless the Summer monsoons provide 
substantial relief, we expect to have to make do with less and less 
water.
    The low amount of water stored in Sumner Reservoir has harmed our 
river diversions. Because of FSID's prior right, when Sumner Reservoir 
was constructed the State Engineer required that a minimum pool be left 
in the reservoir to protect water quality and to allow natural 
bypasses. During this drought those requirements have not always been 
met.
    Compounding our problems are the effects of drought generally on 
the Pecos.We are concerned that downstream flow demands mandated by the 
Pecos River Compact and by the Endangered Species Act may put pressure 
on FSID farmers to forgo irrigation. Any extended forbearance of this 
type could undermine the viability of the District itself, as well as 
De Baca County and the Village of Fort Sumner.
    FSID is not in business to be a water marketer. Its farmers have 
water rights for one purpose and that is to farm. Nonetheless, if other 
demands on the river require it, FSID is willing to enter into short-
term water leases.
    A. Pecos River Compact. A shortfall in New Mexico's Pecos 
deliveries to the Texas state line will require New Mexico water 
diverters to reduce their uses. FSID has one of the most senior water 
rights on the river, but because it is one of the few large surface 
water users, its supply is one of the only sources of water readily 
available for downstream use. This is so because the vast majority of 
junior water rights holders are groundwater users whose pumping effects 
on the river are delayed. In other words, even if such groundwater 
users are promptly shut off, there would be no immediate benefit to the 
river in most instances.
    Because of the difficulty of priority administration, and the 
severe economic consequences that could come with it, FSID believes the 
State's long-standing policy of purchasing and retiring water rights 
over time is a prudent solution. In the long run, this strategy should 
prove effective. In the short run, however, this approach may be 
insufficient to make state-line deliveries, particularly in years such 
as this. One encouraging development is the New Mexico Legislature's 
passage this year of water banking legislation, which will allow water 
districts such as FSID to offer a market for surface water as demands 
require. FSID supports this form of willing-buyer-willing-seller water 
leasing and is prepared to charter its own water bank once the State 
Engineer has issued water bank rules and regulations for the Pecos 
River. By contrast, we oppose any buy-out programs that permanently 
acquire and retire or transfer water rights. We see such an approach as 
a threat to the livelihood of our District and we far prefer more 
flexible, short-term programs, such as water banking.
    B. Endangered Species Act. Exacerbating the drought conditions for 
our farmers are potential ESA requirements. Of great concern to our 
District is the water need of the threatened Pecos bluntnose shiner, 
whose critical habitat begins on the Pecos below Fort Summer. We have 
made our position clear that our District is amenable to providing 
water for instream conservation flows, but only on a willing-buyer-
willing-seller basis. Our farmers have valid private real property 
rights in their water, and nobody has the right to simply regulate our 
water away.
    We understand the Bureau of Reclamation's policy is to compensate 
fully for water needed for shiner conservation. However, we remain 
vigilant, given the BOR's statements only two years ago. On June 29, 
2000, BOR ordered FSID to ``re-operate'' its diversion dam to reduce 
its diversion amount by 30 percent due to water shortages. The BOR 
cited as its authority Section 7(a) of the Endangered Species Act. 
Section 7(a)(2) in particular provides:

          Each federal agency shall, in consultation with the 
        Secretary, insure that any action authorized, funded, or 
        carried out by such agency is not likely to jeopardize the 
        continued existence of any endangered or threatened species or 
        result in destruction or adverse modification of habitat of 
        such species which is determined . . . to be critical (emphasis 
        added).

    Because of the 1949 repayment contract, BOR's order asserted that 
it has an ownership interest in the diversion dam that necessitated the 
action in order to comply with the Endangered Species Act and that, 
pursuant to a provision in the repayment contract, BOR would take over 
operation of the dam if FSID failed to comply with the order. FSID 
could not remain viable if it had to give up one-third of its water 
right. FSID simply has no excess water that it can give up without 
causing crop damage or requiring fallowing of fields.
    Fortunately, in the fall of 2000 BOR thought better of its takeover 
threat and offered to lease water from FSID farmers. As a result, FSID 
entered into a forbearance contract with the BOR to compensate farmers 
for the fallowing of 1,738 acres of farmland during the months of 
September and October, 2000. This program put more water in the river.
    Nevertheless, the BOR threat to takeover our diversion dam still 
hangs over us, even though the BOR has stated that it does not intend 
to implement its takeover notice ``at this time.'' In addition. only 
two weeks ago, BOR bypassed water from Sumner Reservoir for shiner 
conservation at a time the river was wet. That water came from FSID 
supplies without the consent of and without any payment to FSID. Under 
a temporary reservoir operations agreement among FSID, Carlsbad 
Irrigation District, BOR and the State, FSID has responsibility to 
maintain a 500 acre-foot pool in Sumner Reservoir, and, as a result, 
BOR's releases directly reduced the water available for FSID farmers.
    Only last week the Forest Guardians filed a lawsuit against BOR and 
the Corps of Engineers, alleging that those agencies are not using 
their discretion to appropriate water from irrigation districts for the 
benefit of the bluntnose shiner. The suit calls upon BOR to carry 
through on its threat to take control of the FSID diversion dam and to 
use FSID water for the bluntnose shiner.
    We are willing to cooperate to help the shiner until long-term 
solutions are in place, but we believe such cooperation must recognize 
the constitutional protection afforded our water right, in the form of 
consensual agreements, and must not be induced by threat of a federal 
take over.
    As discussed earlier, we intend to charter a water bank as soon as 
this fall. In the meantime our board has implemented the FSID Interim 
Water Conservation Program. The purpose of this program is to establish 
``a mechanism and procedures for the conservation of FSID water to 
augment flows of the Pecos River below Fort Sumner, New Mexico.'' The 
program implements a process by which any party seeking to augment 
river flows may lease water from the District.
    In the long-term, FSID believes it is important to assess the 
feasibility of a conservation pool for recovery and conservation 
purposes. If a conservation pool is established and funds are 
appropriated for purchase of water, it should alleviate river drying 
would serve as an insurance policy for survival of the bluntnose 
shiner.
    C. Watershed. A major cause of the shortage of water on the Pecos 
River is water users that have been allowed to increase over the years 
virtually unchecked. These are not people using the water legitimately 
but woody plant species--pinon juniper on the upper water sheds, 
mesquite on the lower watershed, and salt cedar on the tributaries to 
the Pecos River. Over the years, pinon juniper have invaded our grassy 
meadows and rolling hills; mesquite has invaded our grassy plains; and 
salt cedar has invaded our streams and tributaries to the Pecos as well 
as the main river channel. Being higher water users than the climax 
vegetation (grass), they have dried up springs and streams that feed 
the Pecos River. They not only dry up surface water, but are plants 
with long tap roots that take deeper ground water as well thus reducing 
the under ground recharge to wells in the Pecos Valley.
    This problem is compounded in times of drought. They get their 
water first. This problem did not develop over night and will not be 
fixed in a day. If we do not start working on this problem immediately, 
it will only get worse and larger.
    The majority of the upper watershed is on federally owned lands. 
Directives and funds need to be given to these agencies to treat and 
recover the watersheds. Funds also need to be made available to the 
private land owners. Fifty percent or less provided by the farm bill is 
great, but does not give the incentive that is needed--especially when 
agriculture's economy is unstable.

                            III. CONCLUSION

    Mr. Chairman, FSID's board and farmers greatly appreciate your 
efforts to protect water right holders and to enhance stream flows in 
the Pecos river system. As long as our rights are respected. FSID is 
willing to cooperate with others to alleviate the drought conditions we 
face on the Pecos.
    On behalf of Fort Sumner Irrigation District, I thank you for the 
opportunity to talk with you today. I thank you for your help and we 
certainly will appreciate any additional assistance that the federal 
government can provide.

    The Chairman. Thank you very much.
    Why don't we go to you, Mr. Davis, next, on behalf of the 
Carlsbad Irrigation District.

              STATEMENT OF TOM W. DAVIS, MANAGER, 
           CARLSBAD IRRIGATION DISTRICT, CARLSBAD, NM

    Mr. Davis. I'm Tom Davis, and I'm the manager of Carlsbad 
Irrigation District. I want to thank you, Senator Bingaman, on 
behalf of my board and my members for holding this field 
hearing here in New Mexico and hearing from the citizens of New 
Mexico; particularly in light of this drought situation and 
that--I think that, in my opinion, this drought, and it's 
probably in the 10th or 11th year in the lower basin of the 
Pecos River in New Mexico, and probably the entire Pecos basin 
in Texas. We've been experiencing this drought for at least 10 
years.
    The full impact hasn't hit us until this year. We began to 
feel the impacts last year, and the reason for that is we've 
had unusually high snow melt in the Pecos headwaters. The Pecos 
is normally known for a flood-generated river, thunderstorm-
generated flows, but we've had some unusually high snow melts 
during the late 1990's, and we've had reservoirs in place to 
take advantage of that, to capture that storage, to carry it 
over from year to year, and so we're just now feeling the 
impact of the drought. We didn't have any water, at all, 
captured from snow melt this year. So what we operated on this 
year was carryover water from Santa Rosa Reservoir and Sumner 
Reservoir that we moved downstream to Brantley Reservoir the 
first of March.
    Ideally, our allotments are 3.5 acre-feet per acre, to our 
farmers. This year we began with .8 acre-feet per acre. We've 
had a couple of small flash flood type situations in the 
Roswell area that we've been able to store that water in 
Brantley Dam, so we've been able to allocate, just a couple of 
weeks ago, another two-tenths of an acre-foot per acre. During 
the course of my talk, I'll be referring to different places on 
the river, and if you have a copy of my testimony, on the back 
page is a map of the basin.
    I might compliment you, also, Senator. I think you've been 
successful in one thing: that John Horning and I are sitting 
this close proximity to one another; no blows have been thrown 
yet, so we've accomplished one major thing.
    The Chairman. We hope that continues.
    Mr. Horning. I'll do my best.
    Mr. Davis. Most of what I have left to say will be fairly 
repetitious of what you've heard from other speakers, but I 
wanted to point out the Carlsbad Irrigation District is 
actually the entity that carries out the authorized purposes of 
the Carlsbad project. The Carlsbad project is one of the two 
Bureau--major Bureau of Reclamation projects in the State of 
New Mexico; the other one being Elephant Butte Irrigation 
District, so we have a special relationship that we maintain 
with the Bureau of Reclamation, and it has served our needs 
well. And we store water in four reservoirs on the Pecos; one 
being a Corps of Engineer reservoir, which is at Santa Rosa. 
The other three reservoirs, Sumner, Brantley and Avalon, are 
Bureau of Reclamation reservoirs. We have the right to fill and 
refill these reservoirs capped at 176,500 acre-feet total; 
that's set forth in the compact.
    There are often four major competing demands for surface 
water in the Pecos. One is the needs for the project, the 
authorized purposes of the project in our storage. The other is 
the direct flow diversion right that Fort Sumner area's 
district has, that Mr. Armstrong just described. Also, two new 
major players that don't have a permitted water right by the 
State of New Mexico, but nevertheless, have maybe senior 
demands on Fort Sumner and CID, at least some believe that is 
the case, and one is the compact of New Mexico and Texas on the 
Pecos River. A recent Supreme Court amended decree on that 
compact has forced New Mexico into making its annual deliveries 
every year, to that compact.
    The amended decree also allowed New Mexico to accrue 
credits to go against years of shortfall. This year we had to 
draw from that credit. We still have a credit left. What the 
conditions will be at the end of this calendar year could be 
significantly different. The other impact is, of course, the 
endangered species that was mentioned and the demands that Fish 
and Wildlife have set forth, or the requirements--I should use 
a better word--requirements Fish and Wildlife have set forth 
for the threatened bluntnose shiner, and that is certain flows 
through the critical habitat.
    I wanted to mention other--when I'm talking about the 
storage, and I want to follow up--Subhas Shah mentioned this, 
also without those reservoirs being in place, we would have 
felt the impact of this drought 4 or 5 years ago. That snow 
melt water that come in every year would have went through the 
system in a matter of weeks and been gone, so not only have our 
farmers benefited from the storage, so has the endangered 
species and all of the habitat along the river. We've been able 
to keep the river wet much longer than we would have without 
the reservoirs.
    I see I'm out of time. I'm going to wrap this up with a 
couple or three more comments concerning the future. One of the 
things that is being planned, I think, for the Rio Grande 
silvery minnow is reintroduction on the Pecos. I would advise 
that not to be done today because those reaches of the Pecos 
are dry, so if you take the minnow over there today, it's going 
to be a dry river, so don't take him today. And the fact of the 
matter is that drying condition could just be worse.
    If these conditions persist on the Pecos, I predict that 
not only have we been dry from Roswell to Yeso Creek, but that 
drying condition could extend all the way up to the lower end 
of Fort Sumner Irrigation District.
    We also are dry today from Santa Rosa Reservoir upstream 
past Anton Chico. That drying condition could well move to 
Villanueva State Park, or even further up the river than that, 
maybe on to I-25. And of course, overshadowing this bleak 
scenario I've just described is this requirement that the State 
meet its compact deliveries.
    Now, what do we do? One of the things the New Mexico 
legislature has tried to do is infuse some money into this 
process so that water rights could be purchased and retired 
both in Carlsbad Irrigation District and in Pecos Valley 
Artesian Conservancy Districts. Rights of artesian flows could 
be pumped; artesian aquifer rights could be pumped into the 
river to supplement surface flows. Before the settlement of 
European man, the artesian and shallow aquifers in the reach of 
the Roswell and Artesian basin contributed about 300 cubic feet 
a second of the flow of the river. With the development of well 
fields, that source of water is gone, so that has impacted the 
lower basin. And part of this money, the State legislature is 
trying to somehow resupply that original source of water.
    Also, I would like to mention the Federal agencies could 
consider compensating FSID members to forego or bypass some of 
their water rights or diversion rights to supply of flows of 
the minnow. And hopefully--Senator, this is where you could 
have a big influence, I think we need to turn to new 
technology. I think mankind has always been saved by technology 
married with economics, and we need to look at--we're under--
the State--parts of the State of New Mexico are underlain by 
millions of acre-feet of brackish water. We need to find an 
economical way, something beyond membranes, something beyond 
our--some new technology to utilize that water, to upgrade it 
to a certain standard, to use it for ag use or maybe raise it 
to a higher standard for municipal use, but we've got a good 
water supply there. We just don't have the technology to 
economically use that water. We need to look at that, I think, 
in the future. And of course, our universities can look at 
developing plants that require less water or can grow in salt 
water, but the short term is what bothers me. I don't know what 
we're going to do in the short term.
    Without some tremendous natural flows in the Pecos, I think 
the State's going to have difficulty meeting its compact 
deliveries. I think many of our farmers will have difficulties 
staying in business. A farmer can't go without income for 2 
years back to back. I think the farmers maybe can go to the 
cities and find work, but I don't know where the shiner's going 
to go.
    Thank you again, Senator, for this opportunity, and I'll be 
glad to try to answer any questions that might arise.
    [The prepared statement of Mr. Davis follows:]

Prepared Statement of Tom Davis, Manager, Carlsbad Irrigation District, 
                              Carlsbad, NM

    My name is Tom Davis. I am the manager of the Carlsbad Irrigation 
District located in Carlsbad, New Mexico. On behalf of the Carlsbad 
Irrigation District Board and its farmer members, I want to thank both 
Senator Bingaman and Senator Domenici, committee members and staff for 
the opportunity to describe the impacts of the current drought on the 
Pecos River and the Carlsbad Project in particular.
    In my opinion, this drought is in its tenth year in the lower Pecos 
basin in New Mexico and the entire Pecos Basin in Texas. Due to the 
adequate Project storage capacity and unusually high snow melt runoff 
during the late 1990's, the District enjoyed adequate water supplies 
through the first seven to eight years of the drought. However, the 
unusually high snow runoff eventually failed and the drought caught up 
to us in 2001 with a 2.3 acre feet per acre allotment and 2002 with a 
1.0 acre foot per acre allotment. An optimal allotment is 3.5 acre feet 
per acre.
    There are four often competing demands for the surface waters of 
the Pecos River in New Mexico: 1) the right to store, transport and 
divert the waters of the Pecos River to the Carlsbad Project; 2) the 
diversion rights of the FSID; 3) the requirement that New Mexico must 
comply with the U.S. Supreme Court Amended Pecos River Company; and 4) 
U.S. Fish and Wildlife demands for certain flows for the threatened 
Pecos blunt nose shiner.
    The Carlsbad Project is authorized to store waters in four 
reservoirs in the Pecos River. These are: Santa Rosa, Sumner, Brantley 
and Avalon Reservoirs. The attached map shows the location of these 
reservoirs and location of the irrigated lands in the Carlsbad 
Irrigation District.
    These four reservoirs are operated in a manner to minimize 
evaporation and transport losses. Simply stated, the maximum amount of 
water is stored in the reservoir in the uppermost reservoirs for as 
long as possible and then transported to downstream reservoirs in large 
blocks at high discharge rates, e.g. transporting 30,000 acre feet from 
Santa Rosa to Sumner in 14 days at the rate of 1,200 cubic feet per 
second or about 2,400 acre feet every 24 hours.
    This operation according to U.S. Fish and Wildlife Service is 
detrimental to the habitat of the threatened Pecos blunt nose shiner. 
The theory is that these extended, large flows transport the young 
shiners downstream into less desirable habitat. The service prefers 
much lower flows for longer periods of time, e.g. 300 cfs from mid-May 
through August, except when flood flows are passing through the 
critical habitat. However, in most years this scenario would deplete 
our stored water in the upper two reservoirs by mid-summer and would 
result in twice the transportation loss resulting in only half the 
normal amount of water being available for application to the farms.
    The effects of the drought are painfully obvious this year. We 
received no inflow to storage from snow melt and we transported all the 
stored water in Santa Rosa and Sumner down to Brantley Reservoir in 
March, resulting in 22,000 acre feet being available to allot to our 
members. This resulted in an eight-tenths acre feet per acre foot 
allotment. Carlsbad Irrigation District's ideal allotment is 3.5 acre 
feet per acre. Since the initial allotment made in March, some small 
flood flows have been stored in Brantley which have increased the 
allotment to 1.00 acre foot per acre. It is anticipated there will be 
no more water in storage available to our members after August first. 
This will be especially disastrous for the Pecos growers. The alfalfa 
growers will lose the last three cutting and will not be able to plant 
a new crop of alfalfa on their fallow ground.
    At Sumner Dam, Cadsbad Irrigation District releases water for Fort 
Sumner Irrigation District. FSID water right is the flow of the river 
above Santa Rosa Dam plus the flow of the river at Puerto de Luna, not 
to exceed 100 cfs. Normally, we divert about 46,000 acre feet per 
season to FSID. This season, FSID's diversions have been short by 25-30 
percent. The return flows from FSID provides much of the base flow 
through the critical habitat for the shiner.
    The combined factors of the drought, reduced FSID diversions and no 
stored water to be moved downstream has resulted in the Pecos River 
being dry from Roswell north to Yeso Creek, well into the critical 
habitat. The Pecos is also dry from Santa Rosa Reservoir to well above 
Anton Chico. If these weather conditions persist the remainder of the 
summer, I predict both Santa Rosa and Sumner reservoirs will be dry and 
the Pecos will have no flow from Villanueva State Park to Roswell by 
late September, with the exception of the reach of the river between 
the springs at Santa Rosa and FSID's diversion dam.
    Overshadowing this bleak scenario is New Mexico's obligation to 
meet its compact deliveries to the Texas state line. The formula that 
determines the delivery amount consist of the average flow condition of 
the past three years, two of which are very low water supply years. The 
year 2000 was an adequate supply year because of snow melt. However, 
this will work against New Mexico in the delivery calculation by 
requiring more water to be delivered. If current conditions persist, 
New Mexico will be in a significant shortfall in compact deliveries at 
the send of this year.
    Just last week the Forest Guardians filed a complaint for 
Declaratory and Injunctive Relief against the Bureau of Reclamation and 
Army Corps of Engineers. This suit accuses the Bureau of Reclamation 
and Army Corps of Engineers of failure to comply with their mandatory 
procedural and substantive duties under the Endangered Species Act. The 
suit alleges the two government agencies have operated the dams to the 
benefit of the irrigators and to the detriment of the threatened Pecos 
blunt nose shiner. In my opinion, the Pecos River would be in this 
current condition or worse with this drought even if Santa Rosa and 
Sumner dams and the Bureau of Reclamation and Army Corps of Engineers 
did not exist.
    There are some long-term solutions possible. The New Mexico state 
legislature has provided funding for a consensus plan conceived by the 
major water users in the lower Pecos in New Mexico and the Interstate 
Stream Commission aimed at resolving the compact delivery problem and 
stabilizing Carlsbad Irrigation District's supply. The core of this 
plan is to pump water from the Artesian aquifer to supplement surface 
supplies. Before 1900, much of the base flow of the lower Pecos river 
was provided by spring flows from underground aquifers. Expenditure of 
this funding requires certain agreements particularly between Pecos 
Valley Artesian Conservancy District and Carlsbad Irrigation District. 
These negotiations are underway.
    Federal agencies could consider compensating FSID to forego or 
bypass a percentage of their diversion right which would flow 
downstream for the threatened shiner.
    In the not too distant future, hopefully new technology and 
economics will provide an economical method to utilize some of the 
millions of acre feet of brackish water that lies under New Mexico and 
crop plants will be genetically engineered to require less water to 
grow.
    So what can we do in the short term? Without some tremendous 
natural flows on the Pecos this year, a substantial portion of which 
must cross the state line, the short term is very bleak or those that 
depend on surface water. The U.S. Supreme Court and Federal judges 
rulings cannot break a drought. If conditions persist, the outlook for 
next year is grim. The State will not meet its delivery obligations to 
Texas, many of our farmers will have difficulties staying in business 
and will go to the cities to find work, and who knows where the shiner 
will go.

    The Chairman. Okay. Thank you very much.
    Mr. Horning, you are the clean-up batter here. Go right 
ahead.

     STATEMENT OF JOHN HORNING, EXECUTIVE DIRECTOR, FOREST 
                    GUARDIANS, SANTA FE, NM

    Mr. Horning. Good afternoon. Thank you, Senator Bingaman. 
My name is John Horning. I am the executive director of Forest 
Guardians, and I'm here on behalf of Forest Guardians and our 
2,500 members, most of whom reside in either the Rio Grande or 
the Pecos basins. I'm also here on behalf of the Alliance for 
the Rio Grande Heritage.
    The question of how to sustain the Rio Grande and the Pecos 
Rivers, especially during a time of intense drought, will not 
be resolved easily. If we look around the Southwest we can 
readily see the legacy of communities that did not care to ask 
the question, much less answer it in an ecologically sane 
manner. The Gila and the Verde Rivers through Phoenix, the 
Santa Cruz River through Tucson, the Los Angeles River through 
Los Angeles are the most obvious examples of once-beautiful 
rivers that did not make it to the 21st century. These 
communities chose not to recognize the intrinsic value of a 
living river.
    Part of the reason we are here today is that water managers 
ignore the region's defining characteristic; scarcity. Drought 
is a certainty in an arid landscape, thus the challenge of 
today and the future is to embrace and plan for scarcity and to 
learn to accept the limits that it imposes upon us.
    My written comments focus on both the Rio Grande and the 
Pecos, but for purposes of brevity, I will focus my oral 
testimony just on issues surrounding the Pecos River.
    Management of the Pecos River has been in the hands of the 
Federal Government since the beginning of the 20th century, 
when Congress authorized the Carlsbad project back in 1905. 
Over the years, the U.S. Government has spent literally 
hundreds of millions of dollars investing in water management 
in the Pecos basin. The Pecos bluntnose shiner was listed under 
the Endangered Species Act in 1987. It's the sole mainstem fish 
in the Pecos basin that has been afforded protection under the 
Endangered Species Act.
    Despite the fact that the continued survival of the shiner 
depends on Reclamation's operations of the Pecos River dams and 
reservoirs in a way that assures the existence of habitat for 
the species, it is our belief that Reclamation continues to 
take actions that jeopardize the species. Specifically, 
Reclamation operates the Pecos River dams and reservoirs in 
such a way that the flow of the Pecos River is characterized by 
extremely irregular and unnatural--by an extremely regular and 
unnatural hydrography with short periods of very high, large-
volume flows, followed by extended periods of lower flows. 
These block releases are conducted primarily for the benefit of 
the Carlsbad Irrigation District and are, in part, the major 
obstacle to recovery of the species in the basin.
    Notwithstanding this, the fact that the block releases are 
a major obstacle, very little has changed since the Fish and 
Wildlife Service issued its first jeopardy biological opinion 
in 1991. For example--and this is a recent update here. There 
was a May 29, 2002 briefing statement from the Fish and 
Wildlife Service, in which they found that ``Reclamation has 
only made minor changes to water operations in the last decade, 
and as a result, these operations continue to threaten the 
existence of the Pecos bluntnose shiner.''
    Over the last few years, the Bureau has made promises to 
sustain a minimum flow within the Pecos River to provide 
habitat for the Pecos bluntnose shiner. These promises have not 
been kept, and as Tom mentioned, much of the river is dry 
today.
    One of our concerns in the way in which the Bureau of 
Reclamation manages the Pecos River and the four Federal 
reservoirs in the basin is that they've taken a very piecemeal 
approach to their ESA obligations. They consult during the 
winter, then they consult during the summer. This pattern of 
piecemeal and fragmented consultation efforts actually was a 
similar--was similar to the way that the Fish and Wildlife 
Service was conducting consultations in the Rio Grande seven or 
eight years ago, just after the silvery minnow was listed.
    It's our belief that the Fish and Wildlife Service and the 
Bureau should take a step back and plan on a multi-year basis 
and not solely look at individual irrigation seasons, both 
winter and summer. There are real practical biological reasons 
that make this significant. For example, the Bureau allowed for 
a block release just at the beginning of this irrigation season 
that it did not consider, and did not plan for the rest of the 
summer, and so it's our contention that if there were a more 
holistic, comprehensive approach to the needs of endangered 
species, that we wouldn't be facing a dry river today.
    So from our perspective, it is clear that ecologically 
sound water management has not guided the Bureau's management 
in the Pecos River basin; however, we believe that there are 
three very attainable solutions, that are critical to long-term 
management, that restores the Pecos River such that it can 
sustain, not only the Pecos bluntnose minnow, but also, 
hopefully, a reintroduced population of the silvery minnow, 
which would take some pressure off the middle Rio Grande.
    First of all, as was alluded to earlier, forbearance 
agreements between the Fort Sumner Irrigation District and the 
Bureau should be a part of any planning that's conducted and 
any consultation efforts. FSID has been in communications with 
the Bureau. They wrote a letter, most recently, last month, in 
June; Fort Sumner Irrigation District actually established a 
payment structure for forbearance, so it's very clear that 
they're willing to work with the Bureau on this. What we need 
is Federal dollars to ensure that this becomes a foundational 
part of efforts to recover the species.
    Secondly, we believe that block releases need to be 
modified, they need to be shortened; and finally, the third 
element of a conservation strategy entails the establishment of 
a conservation pool in the upstream reservoirs, both Fort 
Sumner and Santa Rosa. Models indicate that somewhere between 
5,000 and 8,000 acre-feet of water are needed to ensure minimum 
flows for the Pecos bluntnose shiner.
    As I said, my written comments address some other issues 
about the Rio Grande and the Pecos. I'll submit those, and for 
now, I'd be happy to take any questions.
    [The prepared statement of Mr. Horning follows:]

        Prepared Statement of John Horning, Executive Director, 
                     Forest Guardians, Santa Fe, NM

    Good morning. My name is John Horning, and I am the Executive 
Director of Forest Guardians. I am here on behalf of Forest Guardians 
more than 2,500 members, most of whom reside in the Rio Grande or Pecos 
watersheds. I am also here on behalf of the Alliance for the Rio Grande 
Heritage. The Alliance is a unique coalition of local, regional and 
national environmental groups that have come together around one common 
objective--to restore the Rio Grande. Thank you, Mr. Chairman, and the 
other members of this Committee for inviting me to testify today on the 
``Drought and Endangered Species Concerns in the Rio Grande and Pecos 
River basins.'' Forest Guardians and the Alliance are both committed to 
restoring the health and functioning of the Rio Grande throughout its 
upper basin.
    The question of how to sustain the viability of the Rio Grande and 
the Pecos River, especially during a time of intense drought, will not 
be answered easily. If we look around the Southwest, we can readily see 
the legacy of communities that did not care to ask the question, much 
less answer it in an ecologically sane manner. The Gila and Verde 
Rivers through Phoenix, the Santa Cruz through Tucson and the Los 
Angles River through Los Angeles are the most obvious examples of once 
beautiful desert rivers that did not make it to the 21th century. These 
communities chose not to recognize the intrinsic value of a living 
river. Further, we need look only 250 miles south to El Paso and Las 
Cruces to see the ghost of the Rio Grande future. We stand firm in our 
belief that fate of the Rio Grande--a river that is the economic and 
cultural lifeblood of our region--will be a fate different from that of 
other Southwestern Rivers.
    Part of the reason that we are here today is that water managers 
ignore the Region's defining characteristic--scarcity. Drought is a 
certainty in an and land. Thus, the challenge of today and the future 
is to embrace and plan for scarcity and learn to accept the limits that 
it imposes upon us. Water management in the West is easy in times of 
plenty. It is in times of scarcityan increasingly common occurrence--
that our resolve to establish a society to match the scenery is tested.
    Although I present this statement on the behalf of Forest Guardians 
and the Alliance for the Rio Grande Heritage, elements of the problems 
and solutions identified herein have been discussed with many of the 
member groups of the Alliance including Defenders of Wildlife, the 
National Audubon Society, World Wildlife Fund, the Sierra Club and 
numerous other groups. The campaign for the Rio Grande has brought 
together a full range of conservation and environmental organizations 
committed to preserving and protecting this Great River.

                             I. PECOS RIVER

    Management of the Pecos River has been in federal hands since the 
beginning of the 20th century when Congress authorized the Carlsbad 
Project to benefit irrigators in the Carlsbad area. Over the years, the 
United States government has invested hundreds of millions of dollars 
in the construction and maintenance of the various dams and reservoirs 
that now constitute the Pecos River Project. Today, the Bureau of 
Reclamation (Reclamation) and the U.S. Army Corps of Engineers (Corps) 
own and operate a series of four dams and three reservoirs that permit 
almost total flow control in the Pecos River.
    The Pecos bluntnose shiner, a species listed under the Endangered 
Species Act in 1987, is the sole mainstem fish in the Pecos River that 
has been afforded protection under the Act. In the Federal Register 
notice listing the shiner as a threatened species, the USFWS stated 
that ``[t]he most important factor in the species' decline is reduced 
flow in the main channel of the [Pecos] river due to water storage, 
irrigation, and water diversion.'' 52 Fed. Reg. 5295. The Pecos in New 
Mexico provides the only habitat for the shiner.
    In 1992, the USFWS prepared a Recovery Plan for the Pecos bluntnose 
shiner pursuant to the requirements of Section 4(f) of the ESA. 16 
U.S.C. Sec. 1533(f). According to the Recovery Plan, ``[l]oss of 
permanent flow and degradation of river reaches having permanent flow 
are the primary known threats to the Pecos bluntnose shiner.'' The 
Recovery Plan notes that the frequency and severity of river drying 
events increased dramatically after Reclamation's Pecos River dams and 
reservoirs were constructed: ``Although intermittent conditions in 
downstream reaches occurred historically, they were exacerbated greatly 
following construction of dams on the Pecos River.''
    Despite the fact that the continued survival of the Pecos bluntnose 
shiner depends on Reclamation's operations of the Pecos River dams and 
reservoirs in a way that assures the existence of habitat for the 
species, Reclamation continues to take actions that jeopardize the 
continued existence of the Pecos bluntnose shiner.
    Specifically, Reclamation operates the Pecos River dams and 
reservoirs in such a way that the flow of the Pecos River is 
characterized by an extremely irregular and unnatural hydrograph with 
short periods of very high flows that occur during ``block releases''--
made for the benefit of downstream irrigators--that alternate with long 
periods of critically low flows and river drying. The USFWS has 
determined that both the block releases and the critically low flows 
that are hallmarks of Reclamation's operations of the Pecos River dams 
and reservoirs are jeopardizing the species and therefore, inhibiting 
its recovery.
    Reclamation operates its Pecos River dams and reservoirs by making 
``block releases'' from Santa Rosa Lake and Sumner Lake downstream to 
Brantley Lake, which is some 225 miles downstream from Sumner Lake and 
immediately upstream from the irrigated lands within the Carlsbad 
Irrigation District (``CID''). ``Block releases'' are releases of large 
volumes or ``blocks'' of water in a concentrated period of time. Water 
that is released from Santa Rosa Lake and Sumner Lake in block releases 
is stored in Brantley Lake before it is used by irrigators in CID. 
Reclamation's Pecos River operations create a cycle of brief, large-
volume block releases and long dry periods, both of which imperil the 
continued existence of the Pecos bluntnose shiner.
    Reclamation's operations on the Pecos River changed dramatically in 
1989 in a way that exacerbated the adverse effect of Pecos River 
operations on the Pecos bluntnose shiner. In 1989, construction of the 
Reclamation's Brantley Dam and Lake was completed. Brantley Dam 
replaced the McMillan Dam that was smaller and supported a smaller 
reservoir. In 1989 and 1990, the Bureau of Reclamation conducted water 
operations with the sole goal of filling Brantley Reservoir. As a 
result of these new operations, large stretches of the Pecos went dry.
    Notwithstanding the fact that the block releases are the major 
obstacle to the recovery of the Pecos bluntnose shiner, very little has 
changed since the U.S. Fish and Wildlife service issued a jeopardy 
Biological Opinion in 1991. For example, according to a May 29, 2002 
briefing statement from the FWS, ``Reclamation has only made minor 
changes to water operations in the last decade, as a result water 
operations continue to threaten the existence of the Pecos bluntnose 
shiner.''
    Over the last two years, the Bureau has made promises to manage the 
Pecos River to meet a flow of 35 cfs at the Acme gauge, a key measuring 
point at which to ensure adequate flows throughout habitats occupied by 
the Pecos bluntnose shiner. In each of the last two years these 
promises have been broken. For example, last year a multi-day river 
drying event occurred for the first time since 1991. Moreover, the 
Bureau on numerous days failed to come close to the target flow of 35 
cfs, with an average flow of one of the months being less than 10 cfs.
    Since the 2002 irrigation season commenced on March 1, 2002, the 
Pecos River has gone dry at the Acme Gauge. In addition, approximately 
30-40 miles of river have been dry for more than three weeks, resulting 
in the death of thousands of Pecos bluntnose shiner.
    One final concern is the failure of Reclamation to complete a 
timely consultation pursuant to Section 7 of the ESA. Indeed, 
Reclamation has never once completed a Section 7 consultation prior to 
the commencement of an irrigation season, and likewise has never once 
completed a Section 7 consultation prior to commencement of a winter 
operations season. Here we are on July 1st--literally more than half 
way through the irrigation season--and Reclamation and the FWS have 
failed to complete consultation on operations for this year's 
irrigation season. Reclamation's recent history with Section 7 
consultations demonstrates conclusively that it is impractical and/or 
impossible for Reclamation to undertake Section 7 consultations on a 
season-by-season basis.
    Beyond the practical, there are biological reasons that make 
season-by-season Section 7 consultations impractical. For example, in 
dry years, such as the current year, Reclamation needs to begin 
consulting on the effects of its irrigation season operations during 
the preceding winter in order to assure that adequate water is 
conserved in Santa Rosa Lake and Sumner Lake to provide for a base flow 
in the Pecos River. By segmenting Section 7 consultations into seasonal 
consultations, Reclamation makes it impossible to adequately develop a 
strategy that protects the Pecos bluntnose shiner.
    It is clear that ecologically sound water management in the Pecos 
River basin is still lacking. As a result, more than fifteen years 
after its listing as a threatened species, the Pecos bluntnose shiner 
is no closer to recovery and de-listing because Reclamation has failed 
to use its full authority to conserve the species. Instead, the species 
remains threatened with extinction because Reclamation does not comply 
with its mandatory duty to use its authorities to assist in the 
conservation and recovery of the shiner.

How To Conduct Pecos River Water Operations To Address Environmental 
        and Economic Concerns
    From a legal perspective it is clear to us that seasonal 
consultations on a twice per year basis that are currently being 
conducted by Reclamation are both impractical and insufficient to 
address Reclamation's and the Corps' substantive obligation to comply 
with the conservation mandate under the Endangered Species Act. We 
strongly recommend that you urge Reclamation to consult on a 
comprehensive water management plan of at least three years and 
preferably five to ten years that will enable the agency to prepare for 
drought.
    Further, we believe, just as was held by Judge Parker in the 
litigation over Middle Rio Grande Project and San Juan/Chama Project 
waters, that the Bureau of Reclamation has greater discretion to modify 
deliveries and therefore must consult with the U.S. Fish over the full 
scope of its authorities. Storage, the timing and extent of releases 
from Fort Sumner and Santa Rosa Dams and diversions from the FSID 
diversion dam should all be the subject of a federal consultation.
    We believe there are three attainable solutions that are critical 
to long term management that restores the Pecos river such that it can 
sustain not only, the Pecos bluntnose shiner, but also restore a long-
lost member of the native aquatic fauna of the Pecos--the Rio Grande 
silvery minnow.
    First of all, we believe that forbearance agreements between the 
Fort Sumner Irrigation District must become a routine part of the 
operation of the Pecos River system. As you will hear today, the ``FSID 
is willing to cooperate to provide water for the benefit of the Pecos 
bluntnose shiner.'' In fact, the Bureau and FSID met in December 2001 
to discuss a possible lease of water for the 2002 irrigation season. 
The FSID followed up that meeting with a January 28, 2002 letter 
confirming its interest in providing water on a ``willing-seller-
willing-buyer basis.'' Earlier last month, the FSID board even 
developed a payment structure that identifies how much it would cost 
for water to be leased for the 2002 irrigation season. Notwithstanding 
this commitment from FSID, the Bureau of Reclamation failed to secure 
the financial resources necessary to enter into forbearance agreements. 
Senators, I urge you to provide multi-year funding that is specifically 
targeted for agricultural forbearance agreements with the Fort Sumner 
Irrigation District.
    Secondly, we believe that the ``block releases'' conducted for the 
benefit of the Carlsbad Irrigation District should be further modified 
to ensure minimum flows above and beyond what might be provided by the 
Fort Sumner Irrigation District. Since 1989, when Brantley Reservoir 
became operational, the Bureau's water operations in the Pecos River 
have been conducted in a manner that provides greater benefit to CID at 
a significant cost to the health of the river system. For example, this 
year before Reclamation even initiated consultation with the FWS, a 
block release was conducted to provide water Brantley Reservoir. This 
release was clearly an ``irreversible and irretrievable commitment of 
resources'' in violation of the ESA and furthermore, severely 
restricted water management operations for the rest of this year. Yet 
this same pattern has guided water management for the last 11 years. 
This cycle of famine and feast must change if we are to recover this 
species.
    The third element of a conservation strategy entails establishment 
of a conservation pool in upstream reservoirs. According to models 
established by the Bureau and the FWS, about 8,000 acre-feet is needed 
each year to maintain minimum base flows of 35 cfs at the Acme Gage. 
Again, federal monies should be brought to bear to establish this 
conservation pool.
    These three elements, or portions thereof in combination are all 
feasible and could help restore the Pecos to the point that ESA 
protections are no longer necessary for either the Pecos bluntnose 
shiner or hopefully, a soon-to-be-reintroduced population of Rio Grande 
silvery minnow.

                             II. RIO GRANDE

    Nearly ten years ago, on June 30, 1993 as a result of concern about 
the fate of the Rio Grande Bosque, a team of federal and state wildlife 
biologists and water managers completed a report that came to be known 
as the Bosque Biological Management Plan. One of that report's primary 
conclusions was that without fundamental changes in water and land 
management, the Rio Grande Bosque would continue on a downward 
ecological spiral. That report was written by the Rio Grande Bosque 
Conservation Committee, appointed by Senator Pete Domenici.
    The report's authors made a series of 21 recommendations to 
facilitate restoration of the Middle Rio Grande Bosque--a system that 
by all accounts is dying a slow but certain death. Notwithstanding the 
weight of that group, many of its recommendations languished until 
three critical events catalyzed change.
    First of all, in July 1994 the Rio Grande silvery minnow, the last 
and the heartiest of five species of minnow native to the Rio Grande 
not yet driven into the dark night of extinction was listed under the 
Endangered Species Act. Then, in June 1995 the minnow's terrestrial 
partner, the Southwestern willow flycatcher was listed under the Act. 
Finally, in a year not as a dry as this one, 1996, the Middle Rio 
Grande Conservancy District diverted nearly the entire river's flow 
killing more than 10,000 silvery minnows. That final event catalyzed 
the environmental community into action and the listing of the two 
endangered species provided real leverage to protect and restore the 
Rio Grande.
    However, if we return to 1993 and the recognized community-wide 
concern about the fate of the Bosque, we would see that the vision of 
that team of the Rio Grande of ``a perennial [river] whose flows mimic 
the natural hydrograph to the maximum extent possible, and a river 
channel that is permitted maximum freedom within the floodway,'' is the 
same vision of the Alliance for the Rio Grande Heritage.
    My point in sharing this information is that despite a clear 
vision, the support of Senator Domenici and the best of intentions real 
change did not begin to happen in the i4tiddle Rio Grande until the 
drought of 1996 and the Endangered Species Act catalyzed change. Limits 
that are imposed upon use by drought and the needs of endangered 
species also provide us with another opportunity to confront the fact 
that our rivers are over-appropriated and over-allocated. As was stated 
by the Bosque Biological Management Plan and restated and that 
fundamental changes are necessary if we are to restore the Bosque and 
the more than 400 species of wildlife that are dependent upon it.
    A recently released report from the New Mexico Department of Game 
and Fish highlights the ecological urgency that exits--not just for the 
silvery minnow, but also for a host of other species. According to the 
report, at least thirty of the more than 400 species of wildlife that 
were once native to the Middle Rio Grande Valley in New Mexico are 
either extirpated or in trouble and 43 percent of the native fish 
species have been extirpated according to a recently released report. 
The report, entitled ``Status of Native Wildlife in the Middle Rio 
Grande Valley of New Mexico'' concludes that local extirpations are 
continuing. Reinforcing the importance of the Rio Grande, the report 
finds that almost half of all the state's wildlife once occurred in a 
land area along the river that comprises less than 5% of the state. 
Species extinct or extirpated from the Middle Rio Grande include, the 
shovelnose sturgeon, American eel, the phantom shiner, the jaguar and 
river otter.
    The report is critical of single species management and asserts, 
``there is a need to recognize the full complement of native species 
that are at risk in riverine and riparian habitats of the Middle Rio 
Grande Valley of New Mexico.'' The report criticizes state and federal 
water managers for focusing on one or two species--namely the silvery 
minnow and the southwestern willow flycatcher--concluding that approach 
``diverts attention from the immense natural heritage that is at risk 
in the Middle Rio Grande Valley of New Mexico.''

How To Re-Vitalize the Bosque and the River and Recover the Endangered 
        Species That Depend on Both
    As was stated at the outset, the task of restoring the vitality of 
the Rio Grande and recovering the silvery minnow, the Southwestern 
willow flycatcher and the other imperiled fish and wildlife that depend 
on the river will not be easy. However, the crisis that is created by 
drought clearly can be a catalyst propelling us towards solutions that 
otherwise we might have ignored.
    In the interest of demonstrating that viable solutions to the Rio 
Grande's ecological crisis exist, the Alliance for the Rio Grande 
Heritage would like to put forth a few of these solutions now.

   First of all, as a principle, the Alliance believes that a 
        basin-wide approach to problem solving is critical if creative 
        approaches so necessary to river restoration, are to be 
        implemented. Piecemeal, fragmented thinking have contributed to 
        the current state of the river and it will be holistic basin-
        wide thinking that facilitates true restoration. For example, 
        one of the greatest uses of water in the upper Basin is 
        evaporation from Elephant Butte and Caballo Reservoirs--at over 
        160,000 acre-feet per year, more water than the City of 
        Albuquerque currently uses. The Bureau of Reclamation and the 
        Corps of Engineers, along with the Rio Grande Compact 
        Commission should analyze how upstream storage space could be 
        used to store Rio Grande Project waters in a way to reduce 
        these huge evaporation losses while at the same time meeting 
        the needs of Rio Grande Project contractors. Water stored 
        upstream would significantly enhance environmental restoration 
        opportunities within the Middle Rio Grande.
   Taking the basin wide holistic approach should also help to 
        ensure that all species recovery efforts meet maximum 
        ecological value. For example, the City of Albuquerque and the 
        Interstate Stream Commission will soon announce the completion 
        of an off-channel ``refugia'' for the Rio Grande silvery 
        minnow. This project, while touted by some as ensuring the 
        salvation of the species, does nothing to restore ecosystem 
        process and function, the real threats to the silvery minnow. 
        If these monies had instead been spent on, for example, taking 
        steps to reintroduce the species elsewhere in the Basin, in my 
        opinion, we would be much closer to meeting the goal of species 
        recovery.
   A more comprehensive critical habitat designation for the 
        silvery minnow could reinforce the need for basin wide 
        approaches and bring more resources to the recovery effort, 
        especially from the state of Texas. If you ask water managers 
        and water rights owners what one of their biggest frustrations 
        about the silvery minnow is, it is that New Mexico is the sole 
        state responsible for restoring a species that once existed in 
        more than 1,500 miles of river.
   The Reclamation Reform Act of 1982 requires irrigation 
        districts which have entered into repayment contracts with the 
        federal government in return for receiving water from federal 
        Bureau of Reclamation water projects develop water conservation 
        plans. The law also requires the Secretary of Interior to 
        ``encourage the consideration and incorporation of prudent and 
        responsible water conservation measures in the operation of 
        non-federal recipients of irrigation water . . . where such 
        measures are shown to be economically feasible.''

    Although the Bureau's implementing regulations require Districts to 
develop and submit conservation plans, they do not require the district 
to adopt the plans and they do not provide any enforcement mechanism to 
assure that plans are followed. Moreover, the MRGCD has not developed a 
meaningful water conservation plan in a decade. Although metering, a 
necessary precursor to any meaningful conservation efforts, is now in 
place on nearly all the main MRGCD ditches, much more can be done to 
reduce diversions. As Judge Parker recently concluded, the MRGCD's 
current water management is likely to be in violation of the Project's 
authorizing legislation.
    Clearly, the time is ripe to bring conservation and efficiency to 
the Middle Rio Grande just as it has been done in many other places 
elsewhere in the West to free-up water for environmental purposes. We 
urge you to provide the political will and economic resources to ensure 
that conservation and efficiency of the MRGCD irrigation and conveyance 
system become a high priority.

   Sharing shortages in times of drought is also a recognized 
        principle that must be implemented in the Rio Grande. Each of 
        the contracts between San Juan/Chama contractors and the 
        federal government is explicit in embracing this principle. To 
        implement this as a viable alternative the federal government 
        could reduce payments from contractors who would then tithe a 
        percentage of their contracted water. This water could be 
        stored in upstream reservoirs and released on an as needed 
        basis during droughts.
   As is the case in the Pecos, agricultural forbearance is an 
        essential element of any long-term conservation strategy. A 
        1997 report funded by the Bureau of Reclamation, on ``The 
        Efficacy of Forbearance as a Means of Providing Supplemental 
        Stream-Flow in the Middle Rio Grande Basin in New Mexico,'' 
        concluded that forbearance was a viable tool to provide 
        instream flows. The report represented an important first step 
        in implementing a water management strategy to help sustain the 
        river ecosystem. Unfortunately, more than five years after the 
        reports' publication, with fewer obstacles in place, we are 
        still no closer to implementing a program of agricultural 
        forbearance. We strongly suggest that you convene a task force 
        of state, federal, and tribal water interests charged with 
        devising a viable agricultural water forbearance plan within a 
        six-month time frame.
   But ultimately, sane water management policies will continue 
        to be hamstrung by the fact that the Middle Rio Grande 
        Conservancy District has failed to conduct its ``Proof of 
        Beneficial Use'', now nearly 80 years after its creation. 
        Absent a state approved consumptive use right, the MRGCD has no 
        incentive to conserve and no incentive to become more 
        efficient. Without addressing agricultural waste, inefficiency 
        and illegal diversions the job of restoring the Rio Grande is 
        not possible.
   The Alliance has serious concerns about the deal recently 
        struck between the Middle Rio Grande Conservancy District and 
        the City of Albuquerque to provide water stored in Abiquiu 
        Reservoir to MRGCD irrigators and to the Bureau of Reclamation 
        to manage for environmental purposes. While we are still 
        analyzing the agreement, I can say that we are concerned that 
        the agreement appropriates water that is likely not owned by 
        either the city or the state and may, in fact, be water that is 
        the ``prior and paramount'' water of the Pueblos.

                               CONCLUSION

    Forest Guardians and the Alliance for the Rio Grande Heritage 
believe there are many opportunities to continue to restore the river. 
We are committed to working with state. federal and tribal agencies to 
ensure that all existing and future water development activities are 
grounded in the principle that a living, vital Rio Grande is an 
essential part of the future of New Mexico and throughout the Basin. 
There is much difficult work to be done, but the drought offers us an 
opportunity to establish limits--limits that include the needs of the 
river.

    The Chairman. Okay. Thanks to all of you. Let me ask a few 
questions.
    Mr. Armstrong, the Fort Sumner Irrigation District, have 
you folks been--has there been a proposal to acquire water 
rights from the Fort Sumner Irrigation District similar to what 
the State's talking about retiring water rights or acquiring 
water rights further down in the Pecos?
    Mr. Armstrong. The way it was set up, it was set up that on 
this, acquiring those rights, and Tom and I were both on this 
ad hoc committee for the last year, trying to develop this 
consensus plan that the legislature can use for a basis. It was 
set up that certain amount of acres are to be bought from CID, 
and then the remaining acres are to be bought above CID, you 
know, above Brantley. Maybe from CID, from anywhere that's 
willing buyer, willing seller.
    But you know, they're looking at what's going to give them 
the most bang for their buck when they go to purchase it, 
because they're looking at not just location, but how much of 
the water can get to the river, how far down the river it would 
reach, and this type of thing, so in that respect, Fort Sumner 
Irrigation District is within the bounds that they could look 
at to purchase water rights, purchase or lease.
    The Chairman. Did you have an opinion on this suggestion 
about a conservation pool being established in upstream 
reservoirs? Does that make sense from your perspective, or not?
    Mr. Armstrong. Well, we've been proposing this for some 
time, that--several years--well, like he was talking about, 
it's our proposal to the Bureau, that if they'd apply for and 
get a conservation pool, that there's certain times of year we 
could sell water to them, you know, under certain conditions, 
that they could put in a conservation pool to be used in the 
stress of the summer months, instead of waiting until 
everybody's out of water and there's a shortage, and then 
coming and wanting to get water from the farmers when they're 
in short supply already, especially where we have no reservoir; 
ours is strictly whatever the river flow is. If it's only 
flowing 20 cfs, that's all we get to try to keep people alive. 
And so this has been our contention that a conservation pool 
would be beneficial, especially for water banking, or whatever.
    The Chairman. Mr. Davis, did you have a thought on this 
conversation pool idea?
    Mr. Davis. Yes, I've kicked this around for a number of 
years. All the water that's authorized to be stored in New 
Mexico is either for minimum pool conditions to keep fisheries 
alive or for the Carlsbad project. Any additional storage in 
these four reservoirs would have to be agreed to by the State 
of Texas under the compact. All the water that's authorized to 
be stored in New Mexico is already earmarked for use, so we'd 
have to go into the compact and get some approval from the 
State of Texas to store additional water.
    The fact of the matter is, though, and in times of drought 
like this, there wouldn't be any water stored. I mean, we're 
beyond that point. Had we even had this in place five years 
ago, we would have used that water by now, and we would be in a 
same situation as we're in today with the prolonged drought, 
and my concern is how drastic is this going to get next year.
    The Chairman. Mr. Horning, let me ask, to be just clear on 
your position here, the Forest Guardian position, do you 
believe that the bluntnose shiner can be protected and existing 
water users also protected there in the Pecos? I mean, can we 
restore that species and still protect the existing water users 
there in the Pecos?
    Mr. Horning. I think we can, and I think, in part, the 
reason that we can is that Fort Sumner Irrigation District has 
demonstrated a willingness to engage in forbearance agreements 
with the Bureau. I think, again, we need some leadership, we 
need financial resources, and we need them on a sustained basis 
early enough in the process that we can all plan for that.
    I think there's some other modifications, beyond the 
forbearance agreements, that I'd like to see, but I think it's 
an excellent foundation from which serious recovery is 
possible.
    The Chairman. Okay. Well, I think all of this testimony has 
been very useful. We have a good record of information here. We 
will try to study it and figure out what we can do to be of 
help.
    Thank you all very much, and that will conclude the 
hearing.
    [Whereupon, at 4:22 p.m., the hearing was adjourned.]

    [Subsequent to the hearing, the following statement was 
received for the record:]

  Prepared Statement of Larry A. Delgado, Mayor, City of Santa Fe, NM

    On behalf of the City of Santa Fe, I am pleased to submit the 
following testimony.
    The City of Santa Fe is extremely concerned about how the current 
and future drought conditions could affect the availability and 
reliability of its full San Juan-Chama Project allocation. The City and 
County of Santa Fe jointly have contracted for 5605 acre-feet per year 
of San Juan-Chama project water. Due to this community's current 
extreme vulnerability to water shortage emergencies, the City and 
County are working feverishly to bring SIC water on-line as quickly as 
possible.
    In the context of near-term drought protection, the City's existing 
limited water supplies necessitate that Santa Fe's full SIC allocation 
be available to restore system reliability to our existing customers, 
as well as assuring sufficient supply to future customers of our 
system. Historic and continued heavy reliance on our groundwater wells 
has resulted in significant water table declines in both of the City's 
well fields.Our community is clear that continued mining of the aquifer 
is not prudent and that we must shift to a more sustainable water 
management program. The renewable SIC surface water will be utilized to 
replace substantial groundwater withdrawals, allowing the aquifer to 
rest and to be used on a limited basis in times of drought or other 
emergencies. Much of our SJC allocation is dedicated to realizing our 
Sustainable water management objectives. Ground water modeling has 
indicated that ground water levels may return to pre-pumping conditions 
after 30+ years of maintenance of such a strategy.
    In addition to the need to halt groundwater depletions, the City 
must eliminate its current vulnerability to severe water shortage 
emergencies. Santa Fe River surface water currently makes up 40% of our 
supply. A single dry winter results in the declaration of a water 
shortage emergency, as was experienced in 1996, 2000, and this year. 
Water shortage emergencies, including strict water use restrictions, 
create enormous hardships on our citizens and businesses and negatively 
impact our economy. SIC water will be used to buffer the City against 
frequent severe water shortages by reducing our reliance on the 
increasingly unreliable Santa Fe River supply.
    Most of our SJC allocation, therefore, is dedicated to moving from 
depletion-based to sustainable water management and to reducing our 
susceptibility to drought emergencies. The City has already made 
significant expenditures preparing for SJC implementation and expects 
that all aspects of the project will cost in excess of $100 million. 
The City can ill afford to make such expenditures and plan for the 
long-term welfare of our community, if our full SJC allocation is not 
assured.
    The City recognizes the significant environmental issues, under the 
Endangered Species Act, that exist on the Rio Grande system. We stress, 
however, that all involved parties including federal agencies can 
arrive at a workable solution that does not involve compromising the 
municipalities' SJC allocations.
    One final concern regarding the drought and federal agency 
involvement. The City is pursuing emergency water supply enhancement 
projects that axe on federal lands, and, therefore, involve federal 
agency permitting and approvals (e.g., the NEPA process). Many other 
water users in New Mexico are pursuing similar remedies on federal 
lands. The City has concerns that the involved federal agencies lack 
sufficient staff and other resources to keep the review/approval 
processes moving in a manner consistent with the emergency nature of 
the projects. We urge those involved federal agencies (e.g. Bureau of 
Reclamation, Bureau of Land Management, U.S. Forest Service, etc.) to 
dedicate necessary staff and/or contract consultant resources to ensure 
that the process is in no way delayed. The citizens of New Mexico are 
relying on, governmental entities at all levels to work cooperatively 
to address and resolve our current water crisis as quickly as possible.
    Once again, thank you for the opportunity to comment.
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