BOARD00543

• Board Meeting Date: 7/28/2003
• Description: CWCB Director's Report
• Board Meetings - Doc Type: Memo

and signed by the states' respective governors and attorneys general in December 2002.

Request for Funds Withdrawn: In May we had received a request from GASP for emergency
drought relief funds to address augmentation issues. Because reservoirs filled, GASP has withdrawn its
request.

Rio Grande Basin

Rio Grande Silvery Minnow v. Keys: Fallout continues from the ruling of the three judge panel of the
10th Circuit Court of Appeals on June 12 regarding water releases for the silvery minnow. The 10th
Circuit panel upheld an earlier district court decision directing Reclamation to reduce its contracted
water deliveries to provide additional water for the protection of the silvery minnow, an endangered
species listed under the Endangered Species Act (ESA). The court broadly construed the discretionary
authority of Reclamation to reduce water deliveries in favor of endangered species pro,tection. It also
concluded that the ESA's requirement that federal agencies conserve species and avoid jeopardy gives
agencies the ability to modify existing government contracts absent an unmistakable waiver of
sovereignty by the federal government.

On June 17 Secretary of the Interior Gale Norton and New Mexico Governor Bill Richardson met to
discuss issues relating to the decision. Following the meeting, Secretary Norton issued the following
statement:

"The 10th Circuit opinion represents a significant setback for collaborative efforts and it makes a
difficuIt situation more challenging.

"The 2003 Biological Opinion we are operating under is a good plan. It allows portions of the river to
dry up while putting in place important steppingstones for long term recovery of the minnow. Simply
put, the biological opinion is our best opportunity to solve the challenging water supply situation
facing the people of the Middle Rio Grande Basin as well as the silvery minnow.

"My department remains committed to doing everything possible to stretch limited water resources
during this extreme drought year while complying with the law to protect the minnow. We will
continue to work diligently New Mexico and the congressional delegation to find a dependable and
lasting water supply for the people and Middle Rio Grande enviromnent.

"I appreciate Governor Richardson's continuing interest in working with this Administration to find
solutions to these difficult issues. I also applaud his effol'ls to secure credit water agreements, which
are of strong importance to everyone's efforts to address this very difficult water supply situation."

U.S. Senator Pete Domenici (R-NM) has also announced his intention to introduce legislation that
would reverse the effects of this ruling.

According to a news release of Senator Domenici on June 20, the proposed legislation would: (I)
prevent enforcement of the 10th Circuit Court panel decision by decreeing that habitat requirements for
the silvery minnow have been met based upon the March 2003 Biological Opinion issued by the U.S.
Fish and Wildlife Service; (2) legislate that the San Juan-Chama project and the Middle Rio Grande
project water contracts supersede the ESA; (3) limit Reclamation's use of funds to implement changes
to Rio Grande water contracts; (4) prohibit the use of inter-basin water transfers (San Juan-Chama
water) to meet ESA requirements; and, (5) allow for the federal purchase of privately held water if
there is a willing seller.

In its June 12 decision, the U.S. Tenth Circuit Court of Appeals affirmed 2-1 a district court decision
which held that the U.S. Bureau of Reclamation (BOR) "...retains sufficient discretion over its river
management and operations in the middle Rio Grande...to require BOR to consult... under Section
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