406 Dirksen EPW Hearing Room
Sen. Pete V. Domenici
Today, I would like to discuss a recent Tenth Circuit Court of Appeals decision by a three judge panel that essentially places the needs of a small endangered fish called the silvery minnow over the needs of the people of my state. On June 12, in a 2-to-1 decision, the Tenth Circuit ruled that the federal government can completely disregard its contractual commitments to provide much needed water to the cities, farms, and Indian reservations in New Mexico and instead take that water for the needs of the fish. The Court even found that the government can order the importation of water from another basin for the silvery minnow in violation of New Mexico state law that allows such transfers for municipal uses only.
This judicial decision means that local governments, farming communities, and Indian tribes cannot reasonably expect a permanent water supply despite their long-held water contracts. If allowed to stand, this far-reaching interpretation of the Endangered Species Act will have a devastating impact in my state, which is already suffering from years of drought. If the decision is used in future litigation-driven efforts to expand the reach of the Act via the Courts B which seems likely B the impacts of the Tenth Circuit=s decision will register throughout the west and even the nation.
How did we get here? How can a Court interpret the ESA as preempting 75 years of existing water law, all existing contracts, and the needs of a burgeoning western population?
In the case of the silvery minnow, it began with the ESA=s section 7 consultation process. As with many actions under the Act, the section 7 consultation process for the minnow was triggered by litigation. In 1999, a group of environmentalists demanded that the courts direct the Bureau of Reclamation to consult with the Fish and Wildlife Service over the Bureau=s water and river operations on the Middle Rio Grande.
Until that time, the federal agencies had not consulted on
the Bureau=s operations because the Bureau was obligated to make water deliveries. The water in the Middle Rio Grande, like most of the water in the west, is completely accounted for pursuant to water contracts, interstate compacts, and perfected water rights under state law. As the Subcommittee is aware, one of the key issues with section 7 consultations is whether or not the agency has discretion or control over the action at issue. In my opinion, because the Bureau had no discretion to alter these water deliveries, a section 7 consultation was not appropriate and should not have been ordered.
Mr. Chairman, once the Fish and Wildlife Service produced a Biological Opinion in 2001, the litigation that began over a section 7 consultation was leveraged into a legal challenge to the Biological Opinion. The environmentalists argued that the Bureau failed to consult on the full range of its alleged discretionary authority B even though the Bureau believed it had no discretion to take contractually obligated water or the water resulting from interbasin transfers. The section 7 consultation litigation was next transformed into a court fight over an injunction sought by the environmental groups. The case resulted in the district judge=s determination that the Bureau has the discretion, under the ESA, to take New Mexico=s water.
The Tenth Circuit, in a divided opinion, upheld the district court=s determination of the Bureau=s broad discretion. The dissent, however, rightly characterized the ESA as a Frankenstein. Despite good intentions, this law has become a monster. As a Senator who voted to enact the ESA in 1973, I certainly do not recognize the statute after thirty years of expansive interpretation by the courts. Did any of us who voted for the ESA intend for it to apply retroactively? I did not. Did any of us believe the Act would, through the courts, achieve super-status to the point of abrogating pre-existing contracts? I did not. It was never my intention, when I voted for the ESA, that the statute would violate previous federal commitments over these water resources.
The ESA must be applied prospectively. We cannot B particularly in the west B exist in a world where the statute is allowed to undermine the water contracts, interstate compacts, water rights perfected under state law, and even treaties which have long governed a river=s management.
Now, four years after the section 7 consultation litigation was brought, millions of dollars have been spent and the court case drags on. New Mexico is now in the position where it must request a rehearing en banc to the Tenth Circuit and, if necessary, take the fight all the way to the Supreme Court. In order to counter the potential devastating impact of the Tenth Circuit=s decision, I am currently working with other members in the New Mexico delegation on legislation to provide a balanced approach B one that addresses both the needs of the people of my state and the needs of the silvery minnow.
Mr. Chairman, the ESA, long-driven by litigation, is in dire need of reform. The section 7 consultation process, as examined by the Subcommittee today, seems to me a good place to start. Above all, certainty must be imposed on the process. Not only is certainty the bedrock of western water law, it is also critical for listed species. I believe we can amend the law to protect struggling species while, at the same time, allowing people access to the vital resources they need. I stand ready to assist the Subcommittee in any attempt to achieve comprehensive reform of the Act.
Again, thank you for having me here today. I appreciate the opportunity to testify on this important matter.