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Western States Water Council Legal Committee Seattle, Washington July 14, 2005 e In response to a question, Jack also explain~d the role of the adjudication Advisory Committee in providing advice on significant issues in the adjudication. In a response to another question, Jack also explained the five classes of water rights subject to ~ees, and noted that the largest single fee in the system will be the Montana Department of Fish and Wildlife and Parks relative to their instream flow rights. UPDATE ON COLLABORATIVE EFFORTS IN THE MIDDLE RIO GRANDE Maria O'Brien explained that for those who were at the Boise meeting, her report today follows up on that report. The City of Albuquerque and the plaintiffs in the minnow litigation have come to a settlement agreement, which is rare. It settles all San Juan-Chama claims from the litigation - not just those with the City of Albuquerque. It does two things. The City agreed to give them 30,000 acre-feet of storage space in a reservoir creating an environmental pool for releasing the water for Endangered Species Act purposes. The plaintiffs themselves have to go out and find the water to put it in that pool, but they have the space - which continues to be an important factor for flood mitigation. In exchange, the City got certainty with the regard to developing its San Juan-Chama supply. The plaintiffs, the City, filed a motion for dismissal of all San Juan-Chama claims. A hearing is set on that, but there is not agreement amongst all the parties for a variety of reasons. Nevertheless, she thought the San Juan-Chama claims would be dismissed. She believed the court, as a precaution, wanted to hear all of the arguments before it undertook to dismiss those claims. e. Unfortunately, she said, the ESA Middle Rio Grande Collaborative Program has not done much. It's difficult because of the location, but she thought that was slowly changing. The group is trying to take a step back to go over all of the information and to figure out the best way to move forward and expend some significant federal funds they already have. Maria noted in conclusion that in the Middle Rio Grande the critical habitat information as proposed for the southwestern willow flycatcher will cover almost the entire region of the Middle Rio Grande. Historically, she didn't think designation of critical habitat had meant that much. But in light of recent court developments, one is becoming increasingly cautious about what "critical habitat" information may mean. In light of that, the State, the City of Albuquerque, and others have submitted comments on the designation. The basic argument is that: "Look, we actually, don't really need this federal overlay in the Middle Rio Grande. Because of the minnow, because of the biological opinion in place, and because of the collaborative program and other efforts, there is sufficient local ongoing management efforts to protect the species so that critical habitat designation is not warranted." The comment period will close again on Monday. By court order, the final rule is supposed to be out in September of this year, and so we should know the results of the request to be excluded in relatively short order. Chuck DuMars added that Senator Domenici may be proposing ESA collaborative working group legislation that would define who the collaborators are going to be - - instead of having a table of 50 people and different groups involved. It would authorize federal participation in the process of selection. Once they are defined, if it actually becomes law, that group, with congressional blessing, would go forward and work with the Fish and Wildlife Service and have some leverage relative to their choices and recommendations. Always in the past, there have been ad hoc groups that, as long as they are in e 8