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84–462 PDF 2003

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

(II)

COMMITTEE ON ENERGY AND NATURAL RESOURCES

JEFF BINGAMAN, New Mexico, Chairman

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

BOB GRAHAM, Florida

RON WYDEN, Oregon

TIM JOHNSON, South Dakota

MARY L. LANDRIEU, Louisiana

EVAN BAYH, Indiana

DIANNE FEINSTEIN, California

CHARLES E. SCHUMER, New York

MARIA CANTWELL, Washington

THOMAS R. CARPER, Delaware

FRANK H. MURKOWSKI, Alaska

PETE V. DOMENICI, New Mexico

DON NICKLES, Oklahoma

LARRY E. CRAIG, Idaho

BEN NIGHTHORSE CAMPBELL, Colorado

CRAIG THOMAS, Wyoming

RICHARD C. SHELBY, Alabama

CONRAD BURNS, Montana

JON KYL, Arizona

CHUCK HAGEL, Nebraska

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

(III)

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

(1)

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

2

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 precVerDate 11-SEP-98 14:05 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 J:\DOCS\84-462 SENERGY3 PsN: SENERGY3
3

edence 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?

4

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

5

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

6

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.

7

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?

8

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 acrefeet on March 1, 2002. The storage, on July 1, 2002, is 98,000 acrefeet. 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

9

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

10

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.

11

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 propagaVerDate 11-SEP-98 14:05 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 J:\DOCS\84-462 SENERGY3 PsN: SENERGY3
12

tion. 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 suppleVerDate 11-SEP-98 14:05 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 J:\DOCS\84-462 SENERGY3 PsN: SENERGY3
13

mental 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

14

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?

15

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

16

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,

17

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.

18

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 longstanding 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.

19

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 nonFederal 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 apVerDate 11-SEP-98 14:05 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6602 J:\DOCS\84-462 SENERGY3 PsN: SENERGY3
20

pears 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 problemsolving. 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 problemsolving 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?

21

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

22

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

23

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,

24

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 JuanChama 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 concretelined 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

25

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

26

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 acrefeet. 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.

27

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.

28

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 winwin 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 balVerDate 11-SEP-98 14:05 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 J:\DOCS\84-462 SENERGY3 PsN: SENERGY3
29

anced, 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 apVerDate 11-SEP-98 14:05 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6602 J:\DOCS\84-462 SENERGY3 PsN: SENERGY3
30

proval, 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?

31

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

32

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

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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

34

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 shortterm 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

35

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.

36

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 willingbuyer-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 acrefoot 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

37

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

38

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

39

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 I25. 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

40

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 memVerDate 11-SEP-98 14:05 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6621 J:\DOCS\84-462 SENERGY3 PsN: SENERGY3
41

bers 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

42

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

43

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

44

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. § 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,

45

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.

46

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.

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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

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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 freeup 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.

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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

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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 JuanChama 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 longterm welfare of our community, if our full SJC allocation is not assured.

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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.

Æ