Agenda Item 9c, May 3, 1985

STATE OF COLORADO

Department of Natural Resources 721 State Centennial Building 1313 Sherman Street Denver, Colorado 80203 Phone: (303) 866-3441

M E M O R A N D U M

TO: Members, CWCB

FROM: Bill McDonald DATE: April 24, 1985

SUBJECT: Agenda Item 9c, May 3, 1985, Board Meeting--Reauthorization of the Endangered Species Act

Introduction

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Bills authorizing the Endangered Species Act for periods of four.or five years have been introduced in the House (H.R. 1027) and the Senate (S. 725), respectively. Neither bill provides for substantive amendments to thQ Act. Hearings were held in the House in mid-March and in the Senate on April 16 and 18.

Indications are that both the House and Senate subcommittees of jurisdiction will seek to mark-up their respective bills during May.

Discussion

At its March meeting, the Board outlined its position on the reauthorization of the Act and directed me to submit testimony on its behalf at any Congressional hearings. There were five

elements to the Board's position:

(1) concern for potential conflicts between the

administration of the Act and the exercise of water rights under state law and the allocations of water made by interstate compact or judicial decree;

(2) support for the on-going efforts to find administrative solutions to these conflicts in the Upper Colorado

River and Platte River Basins,

301 ai/9c

(3) support for seeking conunittee report language which would recognize and confirm the appropriateness of

these efforts and would direct the Fish and Wildlife Service to report back to Congress on the results,

.(4) support for limiting reauthorization of the Act to as few years as possible, and

(5) support for several substantive amendments to the Act. At my request, the Board gave me the discretion to modify and structure its position as I thought necessary in view of the fact that circumstances surrounding Congressional activities and

strategy were rather fluid as of the time of the Board's March meeting.

Enclosed is the written statement which I submitted on behalf of the Board to the House subconunittee for its hearing

record. An identical written statement was also submitted to the Subconunittee on the Environment, Senate Committee on Public

Works and the Environment, before which I had the opportunity to orally testify in my capacity as Vice-Chairman of the Western States Water Council, as well as in the name of the Board. The Council's position was, in substance, the same as the Board's.

You will note that I did exercise some discretion in preparing the Board's written testimony in that the statement:

(1) specifically requests that reauthorization of the Act be for only two years, and (2) does not ask for any substantive

amendments to the Act. I reached a final judgment with respect to these particular elements of the Board's position after seeing how the House hearings went, the periods of reathorization being

supported by the Administration and proposed by the House and Senate bills, and the House testimony presented by national environmental groups; and after consulting with the Colorado Water Congress and other water interests.

The key issues which have emerged are: (1) the length of reauthorization,

(2) allegations by environmental groups that the "Windy Gap approach" to section 7 consultations is illegal and that all biological opinions concerning the endangered Colorado River fishes and whooping crane should

necessarily find that water projects are likely to jeopardize the continued existence of these species until more is known about them and their recov~ry is assured, and

(3) whether there will be substantive amendments to the Act.

With respect to the period of reauthorization, the

Administration has supported the four year provision in the House

bill. Environmental groups are supporting a four or five year

reauthorization. Water interests have uniformly sought a two

year reauthorization.

As for substantive amendments to the Act, the

Administration, environmental groups, and the two subcommittee chairmen (Congressman Breaux from Louisiana and Senator Chafee from Rhode Island) have all taken the position that such

amendments are not needed at this time. Water interests have not

yet asked for any amendments, but Senator Wallop has indicated that he would entertain this possibility if a sufficiently short

reauthorization period is not forthcoming. Senators concerned

about grizzly bear issues in Wyoming, Idaho, and Montana appear to be interested in seeking amendments to the Act.

With respect to the Windy Gap approach to section 7

consultations, the Fish and Wildlife Service stated at the Senate hearings that i t expected to phase out this approach as the

results of the on-going administrative process were implemented. The Service also stated that i t would, in the interim, request any proponents of significant new depletions to voluntarily hold

the section 7 process in abeyance pending the completion of the

current efforts so that the Windy Gap approach would not have to

be employed in these situations. Under questioning from Senator

Chafee, Greg Hobbs, on behalf of the Colorado Water Congress, and I both indicated that we would expect the Windy Gap approach to be phased out only if adequate alternatives were agreed upon in the on-going efforts on the Upper Colorado and Platte Rivers. Recommendations

I recommend that the Board:

(1) for the record, affirm the written statement submitted

for the House and Senate hearings, and

(2) direct me to actively follow this legislation ahd to

take such steps as I deem necessary, in my discretion, to obtain the most favorable legislation and committee reports possible for Colorado's water users.

JWM/gl Attachment: as stated cc: Jim Ruch Torn Pitts Greg Hobbs MEMORANDUM -3- April 24, 1985