Problems with a Two-State Agreement

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to benefit the habitat. While Colorado may be able to deliver the water to the state line, it does not have the authority to protect that water through Nebraska to the habitat. If Colorado is not part of a three-state agreement, Nebraska might not be willing to provide protection to the Colorado water through to the habitat. Even if Nebraska were to express a willingness to "protect" water delivered to the state line by Colorado, the problems that divide Colorado and Nebraska would remain unresolved. Colorado would be looking for a very clear and unequivocal guarantee of protection from Nebraska and the FWS and Nebraska would challenge Colorado's assertion that it was delivering "new water" to the state line. Colorado would find fault with Nebraska's new depletion plan and its failure to manage its groundwater and Nebraska would, in a similar fashion, assert that Colorado's new depletions were not being mitigated. This is happening now in the three-state discussions, but the process would become even more uncooperative in a two-state/one-state setting. In the current CA process, the states can negotiate these differences in a cooperative setting with a broad range of trade-offs available through the bargaining process. Outside the CA, the process would take place in a purely adversarial setting, with little in the way of outside trade-offs available in the negotiations. Loss of Coordination One of the benefits of a three-state cooperative approach (encompassing the entire watershed) over a project by project approach is that the various mitigation requirements can be combined into a coordinated program. The acres of land can be acquired and managed in complex-sized chunks, the water acquired and managed in a coordinated fashion, and the research and monitoring can be coordinated. With Colorado projects utilizing a separate process (and likely many separate Section 7 consultations), the ability to combine and coordinate acquisition, restoration, management, research and monitoring efforts would be severely hampered. That would likely reduce the effectiveness of the various activities undertaken in recovering habitat for the species. Futhermore, when separate parties operating in uncoordinated arenas are charged with the restoration and protection of a common resource, they negotiate against each other in an effort to ratchet-down their requirements as against the other parties. The processes are not only uncoordinated, they are antagonistic. Such a situation tends to create a glide path to inaction. Institutional Uncertainty, Target Flows, and Habitat Complexes At a very fundamental level, drastically altering a process that has taken nearly a decade to create leads to a substantially increased level of uncertainty. A host of questions (many of them identified elsewhere in this memo) flow from this situation. Will commitments be kept, can projects actually be implemented, will other parties choose to revisit their original positions, can schedules be met, and so on. From the environmental community's point of view, the most sensible way to deal with this uncertainty is to look at the measures of habitat improvement (water and land) and to for ESA consultation and offsetting any impacts on the habitat downstream where a federal nexis is involved. Draft - June 3 version - Draft