Organizing for Endangered and Threatened Species Habitat Draft

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years when the Clinton administration struggled to hold together a coalition that could preserve and protect the legacy of environmental legislation that had been constructed prior to the "Reagan revolution." There would have to be an emphasis on negotiation with water interests, collaboration, and a flexibility in posture that could adapt to local opportunities and constraints. It was important to demonstrate to environmental supporter and opponent alike that the ESA and other environmental laws could be administered with sensitivity and flexibility while still fulfilling their letter and spirit. Somehow, a path would have to be created that would protect-if not enhance-support for the ESA, not erode it. Secretary of Interior Bruce Babbit sought to accomplish that feat while also finding ecologically viable solutions. From DOI's perspective, Platte River issues presented an opportunity to implement an emerging strategy for addressing the political challenges created by resource users opposition to the ESA. Litigation Risks Department of Interior authorities did not want to enter into litigation with the states over water rights for several reasons. In the first place, the FWS cannot directly intrude on state water rights systems-it can issue "biological opinions" that can be only enforced when environmentalists choose to file suit and succeed in getting a judge to rule in their favor. It is a system that forces environmentalist, not the federal government, to engage in the litigation process. Federal agencies, especially the Fish and Wildlife Service, must operate with the power they have-i.e., the power to issue permits and grant licenses for dams and river diversions. Second, a litigious approach to obtaining water in the West via application of federal reserved rights doctrine had, by the mid-1990's proved to be a costly and time-consuming failure in the New Mexico Gila and Colorado Poudre river efforts. It was not entirely clear that the federal legal case was so strong that litigation would necessarily be counted upon to eventually deliver victory. Third, agency inflexibility and rigidity in a succession of attempts across the nation to enforce ESA mandates could erode political support and place the ESA and other environmental legislation in jeopardy. The ESA itself could be in peril if clumsy handling of the Act were to drive away congressional allies. Fourth, legalistic rigidity simply would drive away the very interests-local people, their organizations and their water knowledge--that must eventually be involved as partners in implementation of any solution. Federal agencies simply do not have the expertise, the local knowledge, the personnel, or the budgets to actually implement terms of any agreement. Nor to they have knowledge, or the right, under the constitutional division of powers to attempt to implement terms of any agreement. Fifth, federal agencies-most especially the FWS and the Forest Service-simply would be overwhelmed by the burdens of individual Section 7 consultations that would be required in administering the ESA in a situation as complex as the Platte river basin. Finally, time and money spent on litigation represent resources that could be better spent on behalf of species. It is better to embrace local interests, educate them to their responsibilities under the law, get them on the agenda, and get on with the process of actually improving habitat. Local water users in the Platte river basin were reluctant to litigate because they did not trust a court-especially a federal court-to responsively consider water interests for multiple and 46