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The Flawed Endangered Species Act

Sen. Pete V. Domenici

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Mr. President, I rise today to share with my fellow Senators an extraordinary exchange that occurred last week in the Interior Appropriations Subcommittee when they were conducting a hearing under your chairmanship regarding the year 2000 budget for the Department of Interior.

As some of you here may know, Secretary Babbitt and I, while both being from adjacent Western States, have not agreed on a lot of land management, water, and endangered species issues affecting the West. However, last Thursday a most unusual and enlightening thing took place. We both agreed that, regarding the impact of the Endangered Species Act on desert States like New Mexico, the current implementation of the law does not work.

I ask unanimous consent Secretary Babbitt's testimony be printed in the Record. It is not yet an official record because the entire transcript has not been completed, but it is a literal translation of what he said that day.

There being no objection, the testimony was ordered to be printed in the Record, as follows:

DEPARTMENTS OF THE INTERIOR AND RELATED AGENCIES APPROPRIATIONS FOR

The subcommittee met at 9:33 a.m., in room SD-124, the Dirksen Senate Office Building, Hon. Slade Gorton (chairman of the subcommittee) presiding. Present: Senators Gorton, Stevens, Cochran, Domenici, Burns, Campbell and Byrd.

Sen. Pete V. Domenici

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Secretary Babbitt's testimony could open the door to some changes in the Endangered Species Act and may permit all parties to work together. I am submitting, as I indicated, this unedited transcript from the hearing for the Record. The Secretary's remarks are very significant because they acknowledge that this law, however well intentioned, is not working as it should. I hope we can begin serious work on improving the Endangered Species Act, certainly as it applies to dry States where water is very much in demand and where we have an imposition on those waters by the Endangered Species Act as it is currently being implemented.

Just last month I indicated that people and people's needs should come before the minnow, which is an endangered species in this particular Rio Grande river valley. I wrote a letter to editors of papers in our State, which appeared in multiple newspapers around New Mexico, saying it is now time to face the devastating impacts of laws such as the Endangered Species Act on people in a desert State like New Mexico, particularly in the area of water.

I got some real arguments and some flak for writing that letter, but I also got some very enlightened commentary on the problems facing an arid State, and I am pleasantly surprised to find that Secretary Babbitt has contributed to the debate in a very constructive way.

New Mexico, my home State, is very dry. I have found that people within the beltway and in eastern America are unaware of the critical need for water in the West. With the lack of snow pack and precipitation in our State this year, we are facing a severe drought this summer. In fact, parts of the Rio Grande River, the largest river in our State, which runs from north to south and through the city of Albuquerque and many other communities, which has historically gone dry at times--this river is already drying up, even this early in the season.

My discussion with Secretary Babbitt was extremely timely, since my office received a call this past weekend from the Fish and Wildlife representatives saying they were out trying to find out what was happening to the endangered silvery minnow in the dry stretches of the river.

You see, the traditional tension among water users is not only exacerbated by litigation regarding the needs of the endangered silvery minnow, but also obviously exacerbated by all conflicting water needs when you are in a drought period.

In a lawsuit filed by the Forest Guardians and Defenders of Wildlife, a recent 10th Circuit Court of Appeals decision ordered an immediate critical habitat designation for the Rio Grande silvery minnow. The practical effect of this determination is the fish may get too much of the limited water in the river and some human users may not get any.

A Federal district judge in New Mexico allowed a few more months for the designation, but the lawsuit only dramatizes the growing conflict between the Federal Endangered Species Act and water for Rio Grande users. Secretary Babbitt agreed.

I asked the Secretary whether the Interior Department had sufficient data to determine the true water needs to sustain the silvery minnow in the Rio Grande River in New Mexico or to make an accurate economic and social assessment of the critical habitat designation on existing water rights owners.

In States like New Mexico, people actually own a proportionate share of the water in a river basin. All of those owners and their rights are predicated upon State law, which says if you put water to a beneficial use and continue to use it over time, you own the water rights that you have moved off the river and used. From the time you first applied water to beneficial use, you become a priority owner of the water as of that time.

Secretary Babbitt replied that his Department does not have sufficient information, but it has no choice but to act because of Federal court orders.

Secretary Babbitt stated that the Endangered Species Act does not work. He hoped that it could be modified to prevent court-ordered, unscientific, premature determinations. The courts need to give the Interior Department time to gather the data to develop a workable plan for habitat designation.

He does not have that data necessary to make a valid, critical habitat designation, and the courts, in trying to follow the act, are not giving him the necessary time. He will be forced to proceed, perhaps, with declaring a habitat. He also said he felt that it will not be productive and will be very inflammatory.

Litigation has only inflamed passions on both sides of this debate. In addition to the critical habitat litigation, a recent notice of intent to sue by the Forest Guardians and others threatens to force the release of stored water in any of four New Mexico reservoirs to ``maintain the riparian habitat necessary for the survival'' of two endangered species.

I am concerned about water necessary for the survival of New Mexicans, their well-being and way of life. I can only hope that the potential needs of this silvery minnow will not drain reservoirs which Albuquerque, Santa Fe, and many others depend on for their water.

I do believe that something is terribly wrong when people who own rights to water have to forego usage or face penalties for ``taking'' of a species without knowing what amount of water is needed for that endangered species.

Incidentally, Mr. President, I grew up in Albuquerque, and I lived within about eight city blocks of this Rio Grande River. I can tell you, as anyone who has lived in New Mexico for very long can assert, that river ran dry plenty of times. Historical data collected before the irrigation projects or large population increases along the river showed it dried up consistently in certain places. I am no biologist, but that minnow survived.

I can assure you that the river water did not run down the entire length of the river from north to south, which is what some say we must do now for the survival of the silvery minnow.

Mr. President, it really is upsetting when I understand that some data available indicates that the minnow ``needs'' more water than the Rio Grande can provide, even without consideration of the needs of human users. How can critical habitat be designated without the consideration of all users and their needs along the river, especially if they have property rights and own the water?

Some irrigators may have to take their toothbrushes to work because they might be thrown in jail due to a ``take'' of fish that they have shared the wet and dry times with for many years.

I care about including the silvery minnow. I care about making sure we try our best to save the silvery minnow. I support the intent of the Endangered Species Act. I actually was here to vote in favor of it, and I did. Today, I agree with Secretary Babbitt that it is broken and does not work. I do not think the problem is necessarily what we designed in the legislation, but I think the court interpretations have made it unworkable.

Mr. President, I say to my colleagues, I know the mention of modifying the Endangered Species Act brings howls and scowls from some quarters, but I say to you today that it can and it must be improved. I am willing to work with my fellow Senators and the administration and those surrounding this issue on all sides to try to find some solutions to this problem, both nationally and for my State of New Mexico.

Mr. President, I yield the floor.

Mrs. MURRAY addressed the Chair.

The Senator from Washington.

Sen. Patty Murray

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Mr. President, I ask unanimous consent to speak as in morning business for 15 minutes.

Without objection, it is so ordered.

Sen. Patty Murray

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Thank you, Mr. President.