Problems with a Two-State Agreement

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seek a new balance of one (increased uncertainty) against the other (increased habitat protection). What we would have to insist on is a greater level of target flow shortage reductions and more acreage in habitat complexes in the first increment than was part of the original CA. The situation would be exacerbated should Colorado choose to use individual Section 7 consultations to meet its responsibilities. Colorado sponsors would logically pursue water projects with no federal nexis (as they are already doing), making the problem worse but providing no offsetting mitigation. Projects utilizing the Section 7 process would likely be engaged in lengthy, expensive, consultations, with little or no certainty that species benefits would accrue during the term of the Program's First Increment. The courts have said that FWS cannot approve recovery plans based on measures that have little likelihood of occurring. In reviewing the adequacy of the two- state CA, it would have little choice but to assume little or no contribution to species recovery from Colorado projects. Non-Profit Organization Contributions One important part of the three-state CA is a commitment from conservation groups that own and manage habitat along the Central Platte (the Platte River Whooping Crane Trust, National Audubon Society, and The Nature Conservancy) to allow their land to be counted towards the long-term goal of 29,000 acres of protected habitat, although not before the end of the first increment. That commitment was premised on obtaining the benefits of a three-state CA, and may not be available for a two-state CA. If Nebraska and Wyoming contemplate a Proposed Program that is smaller in scale and scope than the three-state CA contemplates, the organizations may withhold some or all of their commitment. At least some of these organizations will likely be faced with substantial additional costs to participate in Section 7 consultations for Colorado water projects, without a substantial reduction in their costs for participating in the administration and monitoring of a two-state CA (versus a three-state CA). Impact on Proceedings Dependent Upon the Three-State Cooperative Agreement The settlement that resolved the long-running disagreement over the relicensing of Kingsley and Keystone Dams (Lake McConaughy) was specifically premised on the Districts being part of a three-state Platte River Cooperative Agreement, and the FERC license that was granted based on that settlement included re-opener provisions that kick in should the three-state Cooperative Agreement fail. Our view is that the dissolution of the three-state Cooperative Agreement negotiations would trigger those automatic provisions, regardless of whether negotiations are underway for a two-state Cooperative Agreement. In addition to re-opening what was a very divisive proceeding, changed circumstances mean that new issues will be injected into that proceeding (the choke point at North Platte, sediment-vegetation issues, and the adoption of hydro-peaking practices), which will make resolution of a re-opened proceeding all the more difficult. The Cooperative Agreement is also the forum that is supposed to resolve environmental impact issues that stem from the settlement in Nebraska v. Wyoming over the North Platte River. Federal approval of that settlement, it was agreed, would not Draft - June 3 version - Draft