Working Paper 93-12, September 27, 1993(1)
By John Hamill
Program Director
Recovery Program for the Endangered Fish of the Upper Colorado
U.S. Fish and Wildlife Service
(1) This paper is an edited transcript of a talk given by John Hamill for the Intractable Conflict/Constructive Confrontation Project on April 10, 1993. Funding for this Project was provided by the William and Flora Hewlett Foundation and the University of Colorado. All ideas presented are those of the author and do not necessarily represent the views of the Consortium, the University, or Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: crc@cubldr.colorado.edu.
© 1993. Conflict Resolution Consortium. Do not reprint without permission.
I'm going to talk about a fairly unique model within the country today undertaken by the Fish and Wildlife Service in an attempt to apply the Endangered Species Act. The model involves a recovery program for endangered fish in the Upper Colorado River Basin.
First, I'll describe the nature of the problem and how it came about. A lot of the conflict relates to what Larry2 talked about in terms of property rights. Then I will describe the process that we are trying to use to resolve these conflicts. Our effort feeds into what Curt3 described as "adaptive management." Finally, I will give you my perspective--after four or five years in this process--of the positive and negative factors that are influencing its success or failure. It's hardly a done deal at this point--you can't yet characterize it as a success, but it hasn't failed either.
First, let me give you some background. There are four endangered species of fish that live in the Colorado River system. They are the Colorado squaw fish, the razorback sucker, the humpback chub, and the boneytail chub. Those four fish represent about one-third of the native fish fauna in the entire Colorado River ecosystem. There are only thirteen fish that are native to the upper basin--four of those are now on the verge of extinction. All of these fish have been listed as endangered under the Endangered Species Act of 1973. Some of them were grandfathered in when the Endangered Species Act came about in 1973, and the razorback sucker was listed in 1991. The program that I have been involved with encompasses the Upper Colorado River Basin, which includes parts of three states: southwest Wyoming, western Colorado, and eastern Utah, all the way down to Lake Powell. We are working on about 800 miles of river which has recently been proposed as critical habitat for the survival and recovery of these fish.
The reason these fish are endangered is largely because of the construction of water projects throughout the Colorado River Basin, not just in Colorado, Utah, and Wyoming, but also in Arizona, California, and Nevada as well. Those projects dammed up the river, prevented the migration of fish, changed the flows and temperatures in the river from what they used to be historically, and inundated large sections of habitat. Associated with these projects were depletions of flows from the river to support agricultural, municipal, and industrial development throughout the Colorado River Basin. The second major reason that these fish are endangered--and it's somewhat related to water development--is the introduction of about 42 species of non-native fishes that occur in the Colorado River system, which either compete for food or space or actually eat the native fishes.
Much of the conflict that has developed regarding these fish relates to what Larry was saying about property rights. Back in the early 1920s all of the Colorado River Basin states got together and formed a compact that divided up the waters in the Basin. The compact set aside certain amounts of water that each of the basin states could use for consumptive purposes or to meet their future development needs. The first compact divided the water between the Upper Colorado River Basin and the Lower Colorado River Basin; subsequent compacts divided it up between all of the states. Following that, other legislation was passed by Congress, including the Colorado River Storage Project Act of 1956, which provided authorization and ultimately funding to construct a number of dams throughout the Upper Colorado River Basin. These dams were built by the Bureau of Reclamation.
On top of that you had the states' water rights systems which gives people the right to appropriate water rights from the river basin for "beneficial" uses. In Colorado, the law indicates that "the right to appropriate shall never be denied." People clearly have had and still have the expectation that they can use water for whatever they want, wherever they want.
Congress complicated the situation by passing major environmental legislation in the early 1970s, such as the National Environmental Policy Act, the Clean Water Act, and the Endangered Species Act.
In the case of the Endangered Species Act, the law mandates that federal agencies shall insure that any of its is actions are not likely to jeopardize the continued existence of any threatened or endangered species. Implementation of the ESA created immediate conflicts with other Federal laws such as the Interstate compacts and the Colorado River Project Storage Act. Congress never told us how to solve this dilemma; they just gave us the problem.
A number of strategies were employed to resolve the problem. The first that was taken back in the early 1980s was to try to change the Endangered Species Act. Specifically, there was an attempt by the states and the water users to amend the Act to exclude the Colorado River fishes and the Colorado River Basin from the provisions of the Act. Attempts to change the Act were not successful.
The other attempt was litigation. As Larry said, litigation seldom solves the problem. In fact it often creates more problems than it solves and leaves more questions unanswered than you started with. Also, the courts were generally ruling in favor of the Endangered Species Act, which didn't give the states much hope that their needs were going to be met through litigation.
As an alternative, the Fish and Wildlife Service agreed to enter into a negotiated settlement process to look for a way to recover these fish, and at the same time allow water development to continue in the Upper Colorado River Basin.
Starting in 1984, the Service formed a coordinating committee which brought together most of the major players concerned with water development or recovery of the endangered fishes. The major players included:
For four years the committee reviewed data, tried to understand each other's perspectives about the problem, what the Endangered Species Act required, and what some of their perspectives were about water development. After four years a plan was developed: the Recovery Implementation Program for the Endangered Fish species in the Upper Colorado River Basin. The Recovery Program was formally adopted in 1988 via a cooperative agreement among the governors of the three states (Colorado, Utah, and Wyoming), the Secretary of the Interior, and the Administrator of the Western Area Power Administration. After the cooperative agreement was signed resolutions in support of the Recovery Program were provided by several water-user organizations and environmental groups. These resolutions allowed them to become a voting participant in the Recovery Program.
The agreement that implemented the Program created a process for managing the effort. A series of committees were established to involve people at the policy, management, and technical levels and to provide a forum for discussions and resolution of issues that came up during the implementation of the program. Each Program participant was allowed to appoint a representative to each committee.
That's a short summary of the history of the Recovery Program. Additional information on the activities to recover the fish is contained in the attached brochure [a photocopy of this brochure is included at the back of this paper]. I won't describe those activities, but rather I'd like to talk about the positive factors that are contributing to the success of this effort as well as some of the obstacles or barriers we have yet to overcome.
First, on the positive side, it was and continues to be clear that the alternatives to a negotiated solution are unacceptable. Specifically, going to court or trying to change the law were not acceptable or practical solutions. From the Fish and Wildlife Services standpoint, status quo was unacceptable because as time went by the fish were declining in numbers. In addition, the Service didn't have the political support or adequate funding needed to recover the fish and a great deal of time was being spent fighting each other. We said to ourselves, "We can't just sit here and watch the fish become extinct; we may win some Section 7 consultations and some court battles, but we are going to lose the war."
Second, there is a balance of power in the Recovery Program. Any one party has the ability to say "no." With the Endangered Species Act, the Service could potentially stop water development in the Upper Colorado River Basin. On the other hand, the water users and the states can create so much political havoc for the process that nothing would happen from the fishes' standpoint. In addition, there was a lot of fertile legal ground on both sides of the issue which could bring water development and fish recovery to a halt. This "balance of power" is a key element to keeping all the parties at the table.
Another positive factor relates to funding for the recovery effort. When you bring together a federal-state-private consortium the money is easier to secure. Congress likes this kind of program. Instead of bringing them a problem, you are bringing them a solution. It may cost additional money but, it also avoids a major confrontation. This is now one of the best-funded endangered species recovery efforts in the country.
Another positive force is that in bringing together this kind of coalition--environmental groups, power interests, water interests, federal and state agencies--a synergy develops. The states and private parties can do things that the federal agencies can't do (and vice versa). The environmental and water-development community can provide political support. A definite synergistic effect is produced creating an environment that makes it possible to implement the kinds of changes that are necessary to recover natural ecosystems.
Other positives were present as well. It is hard under this kind of formal arrangement for anybody to quit. We instituted an appeal process that establishes at least a six months wait for anyone who wants to walk away. They have to get two committees' and the Governor's/Secretary of the Interior's approval before they can quit. So, there is a real incentive for people to stay at the table. I think that is one of the key advantages of having high levels of support for the Program.
Finally, this kind of program provides due process for everybody--it gives everybody a voice. It sets up committees and gives everybody a chance to have input. We operate by consensus--we don't do anything unless we all agree. That has forced us to learn to accept and appreciate other people's perspectives and take those perspectives seriously in whatever negotiations we have.
But there are negative factors acting as barriers to the success of the effort. One negative factor relates to technical uncertainties. It still is not clear what it is going to take to recover these fish. The fish are very difficult to study and are hard to find. Because it is difficult to know with certainty what needs to be done there is a lot of risk involved. It is hard to get the Bureau of Reclamation to agree to reoperate their dam and risk losing $5 million a year in power revenues when there is limited hard data to support the request. Likewise, the State of Colorado is reluctant to appropriate and protect a million acre-feet of water in the Yampa River when there is technical uncertainty about the biological data.
There is also uncertainty on the water development side. The states don't have a good handle on where or when they are going to develop their water, including what tributaries are going to get developed. The purpose of the Recovery Program is to recover the fish while water development goes forward. It is hard to make decisions when you don't know quite what it takes to recover the fish or where/when water is going to be developed. These technical uncertainties act to delay actions needed to recover the fish. Without timely action, there is a real danger the fish could become extinct.
Also, at an institutional level or personal level, there is something that we refer to as a "technical cultural clash" that exists as a result of bringing different disciplines together. Engineers and biologists, for instance, often don't understand each other--they frequently look at the world differently. An engineer is used to looking at things in deterministic ways: if you want to build a bridge, you develop a step-down outline, all the data is laid out, you have equations, you plug in numbers, and you get specific answers. When you are dealing with natural ecosystems, you are talking about biological theory and ecological principles, probabilities of occurrence, professional judgements, and those kinds of things. That kind of talk drives engineers up the wall. There is a need to have better communication between those different disciplines. How to bridge that gap is a real challenge.
Even though we have a cooperative agreement saying we are all cooperators there is still a lot of underlying distrust among participants. We have a long history of fighting each other--and there are a lot of people that have a hard time forgetting that. For example, some people within the Fish and Wildlife Service and the Bureau of Reclamation have a history of fighting each other. Some of the water developers are suspicious that some of the participants don't care about water development needs; or vice versa--the water developers don't care about the fish. It takes time to overcome those perceptions (or realities). It may require certain people to leave or die, and commissions to be replaced.
Another negative force is Colorado's water law. Some people believe that Colorado's water law system is archaic. In this state, when there is a problem in this arena, it is common practice to go to court to resolve the issue. We are trying to solve these problems in a cooperative manner, but frequently we are challenged legally whenever we make a move. For example, the State of Colorado recently filed for a water right and several people objected to it. Now we have to go court and resolve those disputes. This adversarial approach doesn't lend itself to this kind of adaptive management, negotiated-type of settlement.
We are probably going to have to make new law in order to successfully implement this program. This will bring in the whole political system, including the State Legislature, which tends to be very conservative. It will be a major challenge to enact laws necessary to address some of these ecosystems issues in a timely and effective manner.
Also, the lack of grassroots support is another big problem. The Colorado River endangered fish are not "charismatic" mega-fauna like grizzly bears and eagles. In fact, they are commonly regarded as trash fish in lot of rural areas of the West. It is hard to implement real change on behalf of these fish without public support. For example, you don't get very far telling people that sport fish will not be stocked anymore, that they are going to have to pay a bigger power bill, or that they may not have as good trout fishing in a river anymore because a dam's operation has been changed, especially when they don't fundamentally believe that saving endangered fish is a high priority. If this program is to be successful there needs to be a lot of education directed at building public support. Also, while the Endangered Species Act lends a sense of urgency for solving the problem, it can also be an obstacle. Yet, a big water project comes in and has to be consulted on in 90 days. So, there is always the threat that if we don't make this process work, one event could come along and blow it all apart. One of the major players could walk out and that would lead everybody else to quit too.
The final negative factor is cost. When we started out, we expected the program to cost about $50 million over fifteen years. Recent projections say that it could cost about $130 million to recover these fish. Where do you get that kind of money when the national focus is on reducing federal spending? That is a big question. Certainly if we don't get the money, the best laid plans will never be implemented.
In summary, the Colorado River Recovery Program is a very interesting model. It's being touted in Washington as a model that needs to be applied in other parts of the country. It may be portrayed during the current reauthorization hearings for the Endangered Species Act as an alternative way of doing business. Whether it works or not will depend on how the negative factors or forces that I describe above are addressed.
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2 Larry MacDonnell was another panel member on the Endangered Species/Habitat Protection Panel. His talk is available as Working Paper 93-11.
3 Curt Brown was another panel member on the Endangered Species/Habitat Protection Panel. His talk is available as Working Paper 93-13.
