Fish case raises new squabble over water

By Thomas Hargrove
Albuquerque Tribune Reporte


WASHINGTON - A proposal by New Mexico lawmakers to end the water fight swirling around the endangered Rio Grande silvery minnow has raised an entirely new environmental issue yet to be decided by the federal courts, legal experts say.

All but one of the state's congressional delegation, led by Sen. Pete Domenici, an Albuquerque Republican, want to mandate that "transferred water" - water not native to a watershed - should be exempt from federal seizure to fulfill the requirements of the Endangered Species Act.

The delegation - with Santa Fe Democrat Rep. Tom Udall being the sole exception - is attempting a legislative end-run around a federal appeals court decision ordering the Bureau of Reclamation to make any water in the Rio Grande basin, including some imported from the Colorado River system, available to fulfill the conditions of the ESA.

"This is certainly new. We've never seen anything quite like this," said Michael Wall, San Francisco-based attorney for the Natural Resources Defense Council, commenting on the proposed legislation. "And this could have some very probably unexpected outcomes since throughout much of the West water is transferred all over the place."

Wall filed legal arguments on behalf of environmental groups in the federal case that ultimately led to the June 12 ruling by a three-judge panel of the U.S. 10th Circuit Court of Appeals that the U.S. Bureau of Reclamation must consider the endangered fish when it releases water or operates any federal programs along the Rio Grande.

The City of Albuquerque is challenging the ruling, arguing it threatens municipal water already purchased. Domenici immediately criticized the appeals court ruling last month because, he said, it means the silvery minnow's water requirements have greater priority than water contracts signed for the San Juan-Chama Diversion Project. The San Juan-Chama water comes from the Colorado River watershed through a pipeline system, and the city of Albuquerque owns rights to a significant part of it.

"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," Domenici said. "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."

Wall said that if New Mexico lawmakers succeed in mandating that transferred water is exempt from environmental laws, then the Endangered Species Act itself would be endangered.

"If transferred water were exempted, then the entire burden of complying with the act would fall on water that only comes from the basin. That would just shift the burden from one water user to another," Wall said. "And, of course, it would deny the Bureau of Reclamation from using transferred water."

Land rights advocates who have long chaffed at the sweeping requirements of the Endangered Species Act applaud the New Mexico proposal. "If the enviros are allowed to take water that has been sold after it was already regulated, it sort of amounts to a kind of double jeopardy," said Mike Hardiman, a Washington lobbyist for the American Land Rights Association and the Land Rights Network.

"We'd certainly support a law like that. After all, the Endangered Species Act was essentially a big scam that uses fraudulent science so that environmentalists can create a false sense of crisis," Hardiman said.


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