|
<br />
<br />000721
<br />
<br />Such efforts at comprehensive planning work best when essentially everyone in the habitat area
<br />has a self-interest in obtaining an approved plan, and is willing to work together to put such a plan
<br />together. Bluntly put, that usually means when the alternative to working together-such as a court-
<br />ordered shutdown of activity-looks worse. ' Perhaps the negotiations on the Platte River are illustrative,
<br />, where three states (Wyoming, Colorado, and Nebraska) were able to come together to hammer out a
<br />negotiation clesigned to meet species needs on the river in the downstream (Nebraska) state. 12
<br />
<br />The Platte may, however, be more the ex'Ception than the rule. It isn't easy to bring all the
<br />relevant stakeholders on a river ( or elsewhere) together to try to hammer out a mutually acceptable
<br />allocation of responsibilities. Often, perhaps most often, attention and legal obligation focuses on a single
<br />party. In the Platte case, the ESA issue was primarily triggered by the need for a license renewal for a
<br />dam in Nebraska. Under ordinary circumstances the entire ESA burden might have focused on that
<br />facility. That is, their license renewal would likely have been conditioned on their ability to assure
<br />adequate water flows for the downstream listed species. But, as it happened, the three basin states were
<br />(and still are) at the time engaged in a reopening of the interstate equitable apportionrnent case in the U.S.
<br />Supreme Court, where downstream environmental needs were an issue, and so each of them may have
<br />been vulnerable in that setting. In addition, Colorado was facing loss of some its water upstream in the
<br />setting of a bypass flow controversy on national forest lands. For these, and no doubt other reasons,
<br />, ' Nebraska was not left alone to face the ESA problem; and a watershed-wide negotiation was initiated and
<br />, , "'pursued.
<br />
<br />Is this sort of achievement the exception, rather than the emerging rule? As you will hear in some
<br />c,\detail in the presentations that follow, the ESA is often criticized for generating piecemeal, non-
<br />." prehensive outcomes. Tribes have been the most prominent critics of the consultation process, which
<br />ks to award the last available water to a project proponent, leaving tribes with senior but unused
<br />ed water rights out in the cold because their unbuilt projects are not included in the ESA-
<br />,'.' ined water baseline that underlies jeopardy opinions. Conversely, because the ESA is administered
<br />,'. Jihy project, consultation by consultation, a given project proponent may have to bear an undue
<br />of mitigation, while others who are also contributing to jeopardy are not brought to task because
<br />~~tivity does not trigger a consultation. In addition, because the FWS prefers to act through the 9 7
<br />]tation process, rather than the 9 9 take provision, it appears to self-limit its potential for attacking
<br />j;Jyissues more comprehensively. The point is simply that while the ESA is certainly a wate~shed-
<br />". " ent-friendly sort oflaw (with its environmental goals and habitat-based concerns), in fact it
<br />9perates in a very narrow, case-specific way. . It will be interesting to hear what the participants in
<br />~SA cases have to say about the way the law is administered, and what changes they propose.
<br />
<br />~~~?-Y:"':'-:":~"'<:' .:
<br />.)";;\.l'~;:\1SYen where watershed-focused inclusiveness has been achieved, we are far from being able to
<br />Slqng~t.erm success. The experience of HCPs and MSCPs under the ESA, some of them rather
<br />:,9~n~efforts, remain untested by time. The Clinton Administration certainly made ambitious efforts
<br />'.;~~~i!t tbe watershed-scale, as exemplified by the Everglades, the Northwest Forest Plan (Spotted
<br />"~ ':the Platte. On the other hand, the Bay-Delta still seems to need intensive care. And another
<br />, ,u,ershed, the Columbia-Snake River system, which extends beyond even its vast watershed out
<br />):,!~t;,);-,'9~ean, and beyond national borders, and where environmental issues have been at the forefront of
<br />':;!:;'~e~t?nfor a long time, has so far eluded efforts to get a firm grip on the salmon restoration problem,. In
<br />.._.&;.;;'~":":.' ;~.~., ':':;..' :'.. :
<br />~::;.;~?
<br />
<br />7
<br />
<br />7
<br />
|