June 18, 2003Domenici, Chavez Continue Assault on Minnow Ruling
By Sue Major Holmes The Associated Press
Last week's silvery minnow federal court ruling came under more fire Wednesday from New Mexico leaders, including Albuquerque's mayor who urged federal officials to help avoid "a head-on collision" between the endangered fish and the city he runs.
Mayor Martin Chavez traveled to Washington to make his appeal. He was joined there by Sen. Pete Domenici, who, speaking on the Senate floor, called for changes in the Endangered Species Act
Albuquerque, the state of New Mexico and the Middle Rio Grande Conservancy District, which represents irrigators, have all said they will appeal the June 10 decision by a 10th U.S. Circuit Court of Appeals panel in favor of the tiny Rio Grande silvery minnow.
Domenici, R-N.M., criticized the ruling, telling fellow senators that it means "the ESA can pre-empt anything and everything" and creates a "new federal right for endangered species."
"Under the court's theory, no city, county, state or agricultural community can reasonably expect a permanent water supply. That is not what Congress intended when we passed the Endangered Species Act. That is not what I intended when I voted for that law," Domenici said.
The senator called for the law to be amended "to better protect struggling species while still allowing people access to the resources we need to survive."
Meanwhile, Mayor Chavez said in a telephone call to The Associated Press that city officials are putting the final touches on their strategy to fight the ruling. On Thursday, he plans to be back in New Mexico, where he will join in a tour of the San Juan-Chama project, a focal point of the water battle.
"What we're trying to avoid is a head-on collision between the species and the municipality," he said between meetings in Washington. "I don't have an interest in repealing the Endangered Species Act, nor do I think it's doable."
"We want to craft a narrow solution. As mayor, I absolutely must have the San Juan-Chama water off the table. It creates uncertainty, which has a negative impact on economic development."
He added: "We're trying to make right the original intention of the act. I don't believe the framers of the ESA envisioned wiping out entire cities."
In its ruling, the three-judge 10th Circuit panel upheld a federal judge's ruling giving the U.S. Bureau of Reclamation discretion to cut contract water deliveries to farmers and municipalities from Heron Lake and release water as needed for the minnow.
Albuquerque stores water in Heron from the San Juan-Chama, a diversion project built in the 1970s that brings water from a separate water basin to be released into the Rio Grande.
The city has been making plans in recent years to use that surface water to spare its dwindling aquifer. Chavez was taking area leaders to Heron on Thursday to stress the water's importance.
Domenici said San Juan-Chama water was never part of the Rio Grande ecosystem, but was brought in for other purposes.
Federal attorneys argued in court that the Endangered Species Act doesn't give the Bureau of Reclamation discretion to deliver less than the full amount to those who contract for water. And Albuquerque contended that under legislation that set up the San Juan-Chama project, a contract would be needed to use the water for the fish.
The 10th Circuit said, however, the Endangered Species Act modifies the water contracts since they do not state that future legislation will not apply.
Domenici said the decision cannot be allowed to stand because it would devastate water users in the growing West.
"It threatens all federal contracts," he said.