The News-Bulletin: Testimony tells story of farmers vs. fish

Wednesday, September 10, 2003

Testimony tells story of farmers vs. fish

Congressional committee hears testimony about Endangered Species Act's impact on valley

Jane Moorman News-Bulletin Staff Writer; jmoorman@news-bulletin.com

Belen The good, bad and ugly of the Endangered Species Act's impact on the Rio Grande silvery minnow and availability of water for the residents of the Rio Grande Valley were discussed during a special congressional hearing in Belen on Saturday.

Witness testimony ranged from the impact on farmers in the valley and the survival of traditional Pueblo life to the impact on economic development and the state's efforts to establish a water-management plan to the need of a habitat for the silvery minnows and what that habitat should look like.

All spoken and written testimony was entered into the Congressional Record.

Jessica Sanchez of Red Doc Farms in Bosque, representing the New Mexico Cattle Growers, New Mexico Farm and Livestock Bureau and the Rio Grande Water Rights Association, opened with a greeting in Spanish and told about her family's roots going back 400 years to Juan de Oñate in the Rio Grande Valley.

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"My family established the rules of the water and land with Spain, Mexico and then with the United States with the Treaty of Guadalupe-Hidalgo," Sanchez said. "And now they say that there is a danger of us losing these rights and our water that is like the blood that runs through our veins."

In her testimony, Sanchez explained the impact of the decision of the 10th U.S. Circuit Court of Appeals on the lives of the farmers in the valley.

"There is probably no single segment of society that is more concerned with or more instrumental in conserving wildlife and the environment than those of us involved in agriculture. We love the land and work it every day," she said.

"I am neither an attorney nor a biologist. I am a graduate of agriculture in animal science from New Mexico State University, but the information tells me that there is not enough science to base sweeping decisions that can not only destroy families and economies but animals as well.

"We are told that the minnow must have a constant water supply to survive. If there is one major thing that could be done to increase the water supply along the Rio Grande, it is to remove the non-native salt cedar that guzzles the water from the river. Great, let's go eliminate salt cedar. We have the technology to do that," she said.

"But, wait a minute. We can't do that. The flycatcher may need that salt cedar for its nesting habitat. Are we trying to protect minnows or flycatchers? This situation clearly points out a glaring flaw in the Endangered Species Act."

Sanchez explained that if the agricultural community does not get its water promised under contract, "my family and others will lose our fields, which results in a loss of feed for our cattle, which can only be replaced by the purchase of alternative feed, at an added cost.

"Independent of our loss, we still have to pay the same water taxes whether we receive the full amount of water or not. These double standards are unfair, but also why are only a few Americans being forced to bear the burden of the Endangered Species Act?"

Anthony Ortiz, governor of San Felipe Pueblo, explained that the silvery minnow's water needs and related federal actions threaten the survival of traditional pueblo life.

"For the first time in history, the silvery minnow water crisis and the current drought will require the federal and state governments to enforce senior water rights in accordance with the prior appropriation system," Ortiz said. "Because the United States has seriously over-engineered the Rio Grande with many dams and reservoirs, the natural ecosystem is in crisis and the silvery minnow is on the brink of extinction.

"At the same time, federal mismanagement of the river and water delivery systems has made it very difficult for the Middle Rio Grande pueblos to continue our ancient customs and traditions that depend upon our precious water."

Ortiz said that his people's water and their entire way of life are bound together through their traditional farming practices.

His points of argument included:

The Bureau of Reclamation must use water otherwise contracted to municipalities and non-Indian farmers to ensure survival of the silvery minnow.

Permanent solutions will require significant federal funding and resources to allow a settlement of pueblo water rights.

The current El Vado Reservoir storage and release policies and procedures are an important part of the problem.

Federal law imposes trust duties of the highest standard on the United States that require the Department of the Interior to take all actions necessary to protect and maintain pueblo water rights.

Eileen Grevey Hillson of AguaVida Resources, representing the Albuquerque Business Water Task Force, said: "Busi-nesses need certainty to stay here, to expand here and to locate here. To the extent that decisions about how to protect and recover the silvery minnow create uncertainty about the amount and reliability of water supplies available for human uses in the states, the impact of this fish is decidedly negative."

Hillson told of the good that is coming out of the awakening of the state to the scarcity of water.

"In wet years, we had barely made ends meet in terms of our supplies keeping up with our demands. Now, in dry years, with increased populations and the same interstate compact obligations, we just might not have enough to go around if we don't take action."

Those actions include:

Getting the state's water house in order.

Minnow recovery spuring regional collaboration.

Albuquerque has begun action to sustain a healthy river environment and educate its people about the scarcity and value of water.

The business community is getting involved in forming water policy.

The U.S. Fish and Wildlife Service is attempting to develop innovative ways to work cooperatively with the stakeholders to make the Endangered Species Act work better.

When questioned by Rep. Joe Baca, D-Calif., about what the monetary impact of the 10th Circuit Court decision would be on the federal government, Hillson said just to "replace the 48,200 acre feet of San Juan Chama water (used for the silvery minnow) at today's cost of approximately $4,500 per acre feet for water rights, including transaction costs, could cost the City of Albuquerque more than $300 million."

State Engineer John R. D'Antonio, speaking as Gov. Bill Richardson's designee, said the impact of the 10th Circuit Court's ruling has been profound and confounding.

"Prior to the ruling, there was a sense among the affected parties of a real need to collaborate and reach a viable long-term solution that balanced the needs of water users and the minnow," D'Antonio said. "With the ruling, my impression is that there is a sense of frustration, hopelessness and attitude of 'what's the point? The U.S. will take the water as needed, when needed, anyway.'"

Regarding the court's ruling, D'Antonio said: "It is clear that this ruling goes far beyond previous cases because it allows the U.S. to seize water promised to others under perpetual contracts, contracts executed decades ago, which have been consistently honored up to now and upon which the users are critically dependent.

"Even the 9th Circuit Court of Appeals says the U.S. can't simply invalidate contracts unless the U.S. retains some discretion to act, such as re-negotiation of the terms of a renewal contract. No such discretionary action occurred here — the court simply said that the Endangered Species Act needs prevail over the contract terms, and that's wrong."

Alletta Belin, New Mexico counsel for the Western Resource Advocates and attorney for the plaintiff in the Rio Grande Silvery Minnow vs. Keys lawsuit before the 10th Circuit Court, addressed the following points:

The valuable but declining state of the Middle Rio Grande ecosystem, and the perilous status of the silvery minnow, which she said is on the brink of extinction.

The failure of agencies and water users to address what she called the urgent problems in the Middle Rio Grande that led to a crisis and ultimately to the filing of the lawsuit.

The meaning and implications of the 10th Circuit opinion, which she said still allows flexibility in how the problems are solved.

Rep. Steve Pearce, R-N.M., asked: "In your testimony, you said the federal government has the right to be involved because it built the dams, reservoirs, irrigation ditches and levees throughout the Rio Grande. Is there some default that exists to justify this intrusion by the federal government? Is it not a case of default that just the lending or participation is the bases of the federal government's presence."

Belin responded by saying "the 10th circuit decision is fundamentally an interruption of federal contracts, and those federal contracts were entered into by bargain basically between the water users and the federal government.

"The water users got a lot of benefits and, in return, they gave some things up. Fundamentally, the court's decision is the reading of a contract and saying 'what does this contract provide?'" she said.

"In the case of the San Juan Chama contract, those contracts are the only basis for the water rights. So it really is just a matter of looking at the contracts and interpreting them and determining how much discretion is allowed to the federal government.

"In the case of the Middle Rio Grande, the case is a little different. People already had water rights, under the state's prior appropriation system. But then, the conservancy district entered into a contract with the federal government to get those federal investments and, in the process of entering into the contract, the government got ownership over the diversion facility, and the federal government has authority over those. It is really a matter of federal contract law basically."

Rep. Heather Wilson, R-N.M., asked Belin how far the federal rights go. "Does the federal government have the right to take tribe's pre-treaty water rights if they are needed to comply with the Endangered Species Act?"

"There is nothing in the 10th Circuit decision that says the Endangered Species Act overrides anybody's water rights," Belin said. "It's a matter of having an effect on entities that entered into a federal contract."

Wilson pursued the questioning, asking: "Can the Bureau of Reclamation be ordered or the Middle Rio Grande Conservancy District be ordered to turn off the ditches to the tribes?"

"That is not something we have asked for," Belin responded, and, under further questioning from Wilson, she said, "The federal government has the authority over the MRGCD ditches. As to the sub-set of issues, I don't think that it is an issue."

Final testimony was from Thomas A. Wesche, principal scientist with HabiTech Inc. in Laramie, Wyo.

From his 30 years of professional experience in the western United States, including the desert southwest, as a fisheries scientist and surface water hydrologist, he testified about what type of habitat the silvery minnow needs to flourish.

"Complex problems require complex solutions," Wesche said.

From his observations of the Rio Grande habitat conditions, Wesche said "I am of the opinion that the physical habitat of the middle Rio Grande is severely degraded and recovery of the silvery minnow is questionable at best unless river-wide habitat enhancement measures are implemented."

He said the habitat diversity has been substantially reduced, secondary channels have been cut off form the main channel and lost, substrate coarsening has occurred with gravels and cobbles replacing silt and sand in many locations, and important elements of structural complexity, such as large woody debris, have been flushed from the system without replacement.

"The result is a substantial reduction in habitat quantity and quality for the silvery minnow," Wesche said.

"Stream-flow-based solutions alone will not return habitat for the silvery minnow. Well-conceived, designed and implemented habitat enhancement measures, such as those described in the biological opinion and now being implemented by the Bureau of Reclamation and others, are needed to reconnect the river with its floodplain, widen the channel to promote habitat diversity and increase overall complexity. These are high priority measures needed immediately if silvery minnow recovery is to proceed."

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