Organizing for Endangered and Threatened Species Habitat Draft

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CHAPTER NINE: OPTIONS-LITIGATION OR NEGOTIATION "If every speaker who has talked in the last twenty years or so about federal-state relationships in water law was to be laid end to end, it would be a good and merciful thing." Charles E. Corker, 1972 (Pisani 1989) The drafting of the U.S. Constitution was occasion for struggle with the vexed question about how to balance power as between states and the federal government. Federalism as a system of dual sovereignty was cobbled together on a fundamental principle. "The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite" (Madison 1788). Federal Water Policy Aridity in the West meant that the federal government, which had not paid much attention to the importance of water and systems of appropriation in the late 19`h century, would be paying detailed attention in the late 20`h century. Yet, federal policy has not been coherent. It has been made in an ad hoc manner with no agency of the executive branch or no committee of Congress keeping any kind of unifying vision. The discourses have been unhinged from any set of defensible guiding principles. Federal water policy has been characterized by competing agendas, agency turf-battles, protracted disputes, and an inability to provide policy views in any predictable manner (Rogers 1996). Federal water policies, having been a muddle for decades, prompted Congress to pass the Western Water Policy Review Act of 1992 (P.L. 102-575). This legislation directed the President to undertake a comprehensive review of federal activities in 19 Western states affecting the allocation and use of water resources-surface and subsurface. The Commission found there to be 15 federal bureaus and agencies with water related programs in the 17 Western states (of the lower 48), responsible to 6 cabinet departments, 13 Congressional committees, and 23 sub-committees and funded by 5 different appropriations committees (Western Water Policy Review Advisory Commission 1997). It is hardly remarkable that federal water policy has been characterized by costly confrontation, expensive litigation, delay, and uncertainty as to how potentially constructive problem-solving investments can be made (Brown 1997). Given that the "federal family" has not historically been particularly functional, Platte river basin negotiations would be challenging enough. But the basin initiatives were also tethered to regional social and political networks of influence that added their own impact-the sagebrush rebellion and the "wise-use" movement. As state water user representatives were attempting to devise ways to work with new federal environmental mandates, at least some of their constituencies were organizing to challenge federal natural resource policy in general. Federal water policy became entangled with federal land and grazing policies, especially in light of how the Bureau of Land Management (BLM) began to change the manner in which it regulated federal land. Traditionally, water users in the West gained more from keeping lands in federal control as long as the BLM was kept politically 44