I would also encourage the Committee pay particular attention to the testimony of Mr. DuMars, a professor at the University of New Mexico's School of Law and widely regarded as a preeminent expert on water issues. I think he will point out the disconnect that currently exists in the Endangered Species Act, and the unnecessary adverse impact critical habitat designation has on water users in dry states like New Mexico.
I have spoken in recent weeks regarding my exchange with Interior Secretary Babbitt during the April Interior Appropriations subcommittee hearing, when we both agreed the Act was not working as it should. I was a Senator in 1973 and voted for the Endangered Species Act. However, I have been around long enough to see the problems with the Act's implementation since, and the courts' interpretation of it in a manner never contemplated by Congress. The goal of government has been to protect and recover endangered species in concert with human development, but it has failed in its mission.
The Secretary of Interior is required to base critical habitat designation on the best scientific data available, after taking into consideration the economic impact of that designation. I asked Secretary Babbitt whether the Interior Department had sufficient data to determine the true water needs to sustain the silvery minnow in the Rio Grande, and to make an accurate economic and social assessment of what a critical habitat designation would mean to existing water rights owners. Babbitt testified that his department does not have sufficient information, but that it has no choice but to act because of federal court orders.
The focus of saving species should be on planning recovery, not using premature habitat designation to unnecessarily hurt people. Tying critical habitat designation to recovery plan implementation is logical, defensible, and the right thing to do. S. 1100 goes directly to the heart of this issue.
Current implementation of the Endangered Species Act imposes a negative: listing endangered species, designating critical habitat, and then simply stopping human activities without further solution. Less than 70% of listed species are covered by recovery plans. Establishing plans to save species is an affirmative choice that should be the goal of everyone.
The beauty of S. 1100 is that it solves a major problem in the Act. It ties critical habitat designation to recovery planning. And who can be against recovery of species? This modest and logical amendment to the Act will impose reasonable deadlines for the recovery process and take it out of the courts. Once the problem has been identified by way of listing an endangered species, the government must move to the where and how of solving the problem.
The U.S. Supreme Court has unanimously agreed that the best scientific and commercial data available must be used to designate a critical habitat. (Bennett v. Spear) Designation of critical habitat is more appropriate in the context of a final recovery plan for an endangered species, because that plan must specifically address conservation needs and costs of recovery. That is when you have the data, rather than front-ending the process.
In the case of the Middle Rio Grande silvery minnow, the science isn't there, there exists no implementable plan for recovery, but as Secretary Babbit put it, he is being "straight-jacketed" into prematurely designating habitat by a court order. I cannot emphasize enough to my Eastern colleagues, that water is the most precious resource in the West. Unlike big rivers such as the Potomac, many southwestern rivers and streams change from roaring torrents to bare trickles over the year. The Rio Grande, despite its "big river" title, is no exception to this cyclical flow. As a child, I often walked across the dry riverbed in Albuquerque. Historically, through weather variations and changing populations, the Rio Grande was dry twenty percent of the time in points.
The quantity of water needed by the Rio Grande silvery minnow is unknown, as is admitted the draft recovery plan. Water amounts needed under critical habitat designation must be tied to recovery planning. The Fish and Wildlife Service has also conceded that there has never been a thorough study of the economic consequences of providing water as a critical habitat for the minnow.
While we all want the silvery minnow and other endangered species to have their critical habitat, the Fish and Wildlife Service and the Bureau of Reclamation acknowledge that they do not know what the "critical habitat" is or should be. Gentlemen, this river NEVER flowed to the ocean; it dried up somewhere south of El Paso from time immemorial. And the fish lived. Pueblo Indians, Hispanic irrigators, and city dwellers have all shared with the silvery minnow the water they rely on, and they have all shared the wet and dry times.
It is abundantly clear that a complete environmental analysis of a critical habitat designation is an absolute necessity. Federal agencies should not have their hands tied by premature designation, forced by litigation. If we want to save species, as was and is the intent of the Endangered Species Act, then we have to plan how to recover them.
Recovery plans require objective and measurable criteria for saving species, specific descriptions of management actions, and cost estimates for those actions. This bill will create a mandatory deadline for developing final, comprehensive recovery plans. Critical habitat will now be designated in conjunction with those plans.
I am very proud to be a part of this historic legislation. However, some have asked "Pete, why are you doing this? It won't solve all the problems on the Rio Grande." I recognize that. But this is the right thing to do. It will help people AND endangered species. You cannot save a species by pitting people against fish.
A key aspect of this legislation is the recovery team, where interested parties who have to live with the consequences of an endangered species in their midst are integral to plan development. The role of the federal government is, of course, crucial too. I have noticed how many people involved in the situation on the Rio Grande point the finger of blame at others. Secretary Babbitt called the water users and environmentalists the most "intransigent" he had ever encountered. But I would note that the government can be intransigent, too.
The Rio Grande isn't the only river in New Mexico with endangered species impacts. I have a copy of a letter sent yesterday to the President, Secretary Babbitt and Director Clark by the Pecos River Commission. The Commission recently held a multi-state meeting to discuss an endangered fish on the Pecos river. The Fish and Wildlife Service effectively did not participate. To find solutions to these problems, the federal government needs to be an active partner.
The Department of Interior needs to consider impacts to human users before critical habitat is designated. Farmers should not face civil and criminal penalties for doing the same thing they have always done, before a way to save the fish is established. Right now, critical habitat for the silvery minnow must be designated by June 23, unless an Environmental Impact Statement is required. Considering the fact that the 10th circuit Court of Appeals has stated that designations requires full review of effects on humans, and that Interior has admitted via affidavit in court and testimony to Congress that they do not know the environmental or impact of critical habitat designation for the silvery minnow, an EIS is likely. However, obviously tying the recovery planning process to that of critical habitat designation is logical. Secretary Babbitt has admitted he needs more time to understand the impacts of critical habitat designation for this species, and I am sure this is true for other species as well.
We request that you address an issue of grave concern to us and to our constituents regarding the Fish and Wildlife Service. This Commission placed issues on the agenda for its April 15, 1999 meeting in El Paso, Texas, which are very important to people in our region. We wanted the Bureau of Reclamation and the Fish and Wildlife Service to address these issues at our meeting -- a gathering that knowledgeable representatives from these agencies have traditionally attended -- and the Service effectively did not show up.
Goverrunent teams are conducting NEPA and Endangered Species Act studies in the Pecos Valley of New Mexico. The Bureau of Reclamation has also been in Section 7 consultation with the Service for several years following the listing of the Pecos Bluntnose Shiner under the Endangered Species Act. (The Carlsbad Project in New Mexico, one of the West's oldest federal reclamation projects, is operated under the auspices of the Bureau). The Service's Albuquerque Office is well aware that New Mexico has voiced serious concerns about the quality and adequacy of the scientific and technical worl: going into the decision-making process. The Service's Albuquerque Office is also well aware that New Mexico has registered complaints about delays in receiving responses to Freedom of Information Act requests that New Mexico has made on the Service.
Based on the data that New Mexico has received, New Mexico did make a presentation to the Pecos River Commission at its April 15 meeting. New Mexico has concluded that the changes in River operations are based on the Service's unsupported determination of Pecos Blunblose Shiner habitat refinements. To illustrate its concerns, the State of New Mexico cited problems connected with four goverrunent conclusions regarding Shiner habitat:
1. Conclusion that there has been a decline in Shiner population: no population estimates have ever been calculated for the Pecos Bluntnose Shiner. New Mexico informs the Pecos River Commission that there has been a decline in the abundance of Shiner in fish collections comparing pre-190 data to the present, but there was actually an increase in the abundance of the Shiner in collections taken between 1991 and 1997 in at least two sections of the Pecos River.
2. Conclusion that the range of the Shiner is reduced: the range of the Shiner has not changed since 1973.
3. Conclusion regarding loss of habitat: no estimate of the quantity of Shiner habitat throughout its range has ever been calculated, however there has been an actual increase in Me amount of habitat in the upper end of the Shiner's range between 1991 and 1997.
4. Conclusion regarding threats to the Shiner: no conclusive data were found to show that on-going dam and reservoir operations threaten the continued existence of the Shiner, although it is unclear exactly what the Service means by "on-going operations."
Further, New Mexico reported to the Pecos River Commission that there has not been a firm and consistent designation of critical habitat for the Pecos Bluntnose Shiner. Given that several years have passed since the listing of the species, the ruling of the Tenth Circuit Court of Appeals in Forest Guardians v. Babbitt. 164 F.3d 1261 (lOth Cir., 1998) seems to apply here and the Service should designate critical habitat for the Shiner. When the Fish and Wildlife Service designates critical habitat, it must consider the "economic impact. and any other relevant: impact of specifying any particular areas as critical habitat."
Had the Service sent any one of its staff members who have knowledge of Pecos issues to the Commission's April 15 meeting, we would have been able to engage them on the issues New Mexico has raised. Instead, the Fish and Wildlife Service sent an employee with no more than five weeks total tenure with the Service to our meeting. None of her experience involved the programs critical to the Pecos River Commission. The representative did offer to "take back" the Commission's questions to her supervisors, but she was totally unfamiliar with the Pecos River operations and with the Compact and could answer none of our inquiries.
Were this failure to send an informed representative a failure of the first instance, we may not have registered this complaint with you. However, we must also consider the difficulties and delays New Mexico experienced when, pursuant to the Freedom of Information Act, New Mexico requested the Fish and Wildlife Service to provide the scientific data used in Endangered Species Act and NEPA analyses of the Bluntnose Shiner. We are left to conclude that the Service's Albuquerque Office is reluctant to be forthcoming with, or to engage the Pecos River Commission on the issues in a public forum when facts exist in the record which do not support the policy positions ofthe Albuquerque Office.
The Commnission meets every spring around mid-April. The Bureau of Reclamation, the U.S Geological Survey, the Army Corps of Engineers, and (in the past) the Fish and Wildlife Service love traditionally sent: knowledgeable representatives to the Commission's annual meetings. These agency representatives regularly report on their activities over the previous year, on upcoming activities, and they answer questions from the Commission and the public. So regular is the Commission's meeting schedule that the location of the next year's meeting is oDen announced at the close of the culTent year's meeting. In fact, the Fish and Wildlife Albuquerque Field Supervisor was present at last yearts meeting held in Carlsbad, Steal Mexico when the location of this year's meeting in El Paso, Texas was announced. The agendas for the meeting are distributed to the federal agencies (including the Service) well in advance. We can think of no reason that the Service would not Mow that a meeting was coming up in April or that it should send adequately prepared representatives to it.
We hasten to add that we do commend the Bureau of Reclamation, the Geological Survey, and the Corps of Engineers for consistently sending experienced staff to our meetings and for responding in a timely manner to our inquiries. We especially thank the Bureau, because they knew that the Commission would have questions of them as well. Much to their credit, representatives of the Bureau of Reclamation, including, the Albuquerque area manager, attended our 1999 meeting in El Paso. They were prepared to field our questions and respond to our comments.
The Service's failure to make an effective appearance at this meeting is an insult and affront to the Pecos River Commission. More importantly, this failure by public servants to face up to public scrutiny on an issue of public policy is not acceptable. We are not in a position to attribute any motive to the Service's effective failure to show up, but that is immaterial: there is no excuse for not sending a knowledgeable representative to a meeting under the circumstances that eve have described to you.
The Pecos Rearer Commission respectfully requests that you consider the matters we have raised and censure and instruct the appropriate Service officials to have knowledgeable personnel in attendance at our meetings. We thank you for your consideration of this matter.
Sincerely,
W. Thrasher, Jr.
Comissioner for Texas
Colin R. McMillan
Commissioner for New Mexico