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| Using endangered species to force
states to manage their water is the wrong approach to the right
goal |
By Steve Malloch
for Headwaters News |
With drought settling in
over a still-growing West, water conflicts are getting worse.
Rivers in the West are becoming better known for their litigation
conflicts rather than their farms, fish or natural beauty.
To Westerners, Klamath means wronged farmers, Indians revering
endangered suckerfish, or 33,000 dead salmon. The Rio Grande
evokes drying pools of water with dying minnows, water stolen
from Albuquerque’s children, or inefficient irrigation.
The most recent headlines are on the Snake, where potatoes and
power are once again pitted against the Northwest’s totem
animal, the salmon.
If
the states handled money the way they manage water, they would
be broke, and the governors would be in jail.
Westerners have lived through Endangered
Species Act wars before, most notably over timber. However,
the water issues are going to be worse, because they affect
virtually everybody. Latte-swilling suburbanites could dismiss
the spotted owl as having little personal relevance. However,
just about everybody in the West relies on water dammed, diverted
and conveyed from somewhere else.
The scale with which we move water around in the West is astonishing.
People in the Denver suburbs use water from hundreds of miles
away to sprinkle their lawns. Phoenix imports water from the
Colorado River. Bureau of Reclamation and other federal projects
deliver megawatts, irrigation water and drinking water everywhere.
Arizona uses far more water than its rivers hold because it
draws from the Colorado River and deficit spends its ground
water. The state of Colorado withdraws and puts to use about
94 percent of its average river flow. Utah uses about 65 percent
of its river flow.
For California, it is about two-thirds of its “designated
runoff” of 77.9 million acre-feet. For each of these states,
some of that water returns to rivers or the ground and can be
used again by fish or people, and some evaporates or is otherwise
lost.
The point is that we already take a lot of water out of streams
and the ground. To do that requires a lot of dams (about 35,535
medium to large dams), diversions and canals in the West.
The ecosystem consequences of all that water use and infrastructure
are adding up. Of Arizona's native fish, 88 percent are so endangered
that they are either listed by the state or federal governments
or under some form of consideration for listing.
Among the 59 western native trout species and subspecies, 53
are considered vulnerable, 33 either are listed under the Endangered
Species Act or are candidates, and two are extinct.
With future demands by sprawling western suburbs and Indian
tribes likely to grow significantly, western water business
as usual will put already fragile aquatic ecosystems in mortal
peril, endangered species listings will increase, and there
will be more Klamath- and Rio Grande-style problems. We will
also see extinction -- very public executions of western species.
We have a crisis looming – a conflict between a law designed
to leave a natural heritage for the next generations and our
intensive use of water in the West.
While there is a lot of flexibility in the Endangered Species
Act as to how its goals are accomplished, it is not flexible
about two things – killing or harming protected species,
and the federal government putting protected species in jeopardy
of extinction. In this, it is an unusual because environmental
laws typically define process and attempt to balance competing
factors.
The ESA says that in the end, we should not leave our grandchildren
a poorer world, with fewer plants and animals on the land and
fewer fish in the rivers.
In Congress, efforts to weaken the ESA founder on that very
point. The votes needed to hasten extinction simply have not
been there, causing frontal assaults on the ESA to fail.
Instead, Congress is chipping away at the ESA, proposing, for
instance, to exempt the military and to legislate the adequacy
of ESA compliance on the Rio Grande. So far, the efforts to
undermine the ESA in more subtle ways, most notably by limiting
the information that agencies can consider, have failed. (These
are the so-called “sound science” proposals that
greatly restrict agency use of the best available information.)
Taking on the ESA was a priority for the Bush administration.
They want to temper the rigidity of the ESA's goals with greater
consideration for the beneficiaries of the status quo.
In 2001, shortly after coming into office, the Bureau of Reclamation
and the Department of the Interior faced a crisis in Klamath
– the ESA seemed to require that water be cut off to farmers
and ranchers in order to both keep lake levels high for one
set of endangered fish and flows downstream high for another.
In a drought year, there simply was not enough water for the
fish and the farmer.
In Klamath, the Bush administration established its approach
to the ESA.
The initial responses were specific to water issues: First blaming
Oregon for failing to determine who had rights to water on the
Klamath – with real justification since the Klamath water
rights adjudication started in 1975 and will continue indefinitely.
Then claiming that meeting water contract obligations prevented
delivering water to fish.
Interior appears determined to continue with this approach despite
losing the argument before the conservative 10th Circuit in
the Rio Grande silvery minnow case and previously losing it
in the 9th Circuit.
Interior then took a more subtle and general approach, asking
more of ESA science than could be delivered. It asked an independent
science review panel whether the ESA prescriptions guaranteed
saving the species.
But science cannot do this. Just as engineering builds safety
factors into our buildings and cars, the ESA directs agencies
to use the best available science and err on the side of saving
the species. The panel came back with an interim report, which
unsurprisingly said that the agencies actions failed to meet
the higher standard. A final report and the Bush administration’s
Klamath plan are due out shortly.
In its biological opinions at Klamath and elsewhere, Interior
is now turning the ESA’s precautionary approach on its
head, taking strong recovery action only in the rare instances
that effectiveness can be proven. Otherwise only relatively
painless actions are called for.
Without changing the law, the administration essentially eliminated
precaution from the ESA, and eliminated the safety factor.
On other fronts, the administration is limiting the ESA by raising
the threshold for invoking the law and by starving the Fish
and Wildlife Service for funds.
Using a variety of administrative, legal and policy tools, short
of changes to the law itself, the administration is working
to limit the effect, protection and application of the ESA.
The administration has one thing right – the ESA is not
a great instrument for solving Western water problems. Unfortunately,
it is being used so often because it is one of the few instruments
available.
Despite the rise of environmental concern in the last decades,
with attendant improvements to our air, water quality and land
use, water management has not kept pace. For water quantity,
we do not have the equivalent of pollution permit systems, zoning,
land use planning, routine surveys, accurate land records, land
trusts or even nuisance laws. In most states, we don’t
even accurately and systematically measure water use or river
flows.
If the states handled money the way they manage water, they
would be broke, and the governors would be in jail.
In New Mexico, a combination of a serious drought, a waning
Rio Grande and the endangered silvery minnow caused Gov. Bill
Richardson to take a hard look at improving the state’s
water system. New Mexico is facing both urban growth and a very
real limit to its water supplies.
The state is now in the process of putting its water affairs
in better order. It will start by developing state and regional
water plans, settling ownership for 85 percent of the state’s
water rights claims, settling disputes with its tribes and neighboring
states, and evaluating a host of policy, economic and technological
approaches.
Unfortunately, New Mexico does not appear to be placing a high
priority on natural resources. Lost in the silvery minnow conflict
is the fact that the Rio Grande once flowed through the city
of Albuquerque, creating a verdant cottonwood forest, and a
focus of solace, recreation and life for the city.
New Mexico may decide that it wants that river back again, and
its new tools may allow that to happen. Whatever priorities
it chooses, New Mexico’s approach is the right one –
create the tools to allow it to manage its most precious natural
resource.
The ESA should be a last resort – the airbag that pops
when we drive a species into the brick wall. In western water,
it instead has become a substitute for most of the environmental
laws, use regulation and market signals that help other environmental
issues be resolved with less pain and greater order. To keep
western aquatic species from going extinct, and to meet the
needs of future westerners, we need better tools to solve the
problems of western water.
Avoiding the ESA’s strictures has become one of the major
motivations for positive change in western water. If the administration
or Congress succeeds in undermining the law, the motivation
to fix the problems may be gone.
Poking holes in the airbag isn’t smart.
Steve Malloch is director of the Western
Water Alliance. |
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Author's
blog:
The National Research Council Klamath panel released its report
on the conflicts on the Klamath after my adjacent Perspective
column was written and before it ran.
It seems that the report had a little bit of something for
every interest in the basin. Irrigators crowed because their
water use was not blamed as the sole cause of the problems;
the Bureau of Reclamation probably sighed with relief for
the same reason.
Environmentalists have long been targeting the hydropower
dams, hatcheries and land-use practices in addition to water
use. Tribal interests were acknowledged.
The main point of both the Perspective column and the NRC
report is that western aquatic ecosystems are in a mess. Getting
them, and us, out of that mess will take a broad set of tools
and approaches.
Farmers will have to address nutrients running off their fields.
Foresters will need to reduce silt from timber harvest and
roads. Land-use practices will have to take into account the
needs of fish for cold clear water. Hydropower dams will have
to adjust operations, and may have to be removed when the
costs of doing so exceed the power value. And of course, water
rights are essentially unmanaged in many places, and the resulting
mess has to be cleaned up.
While some may think that they have been let off the hook
by the NRC report, it looks to me like more interests are
appropriately put on notice that they have a part in the problems
and solutions.
The politically easy solution when many interests are to blame
for a problem is to dither, and let the status quo remain.
In the Klamath, the next major step will be for the Administration’s
cabinet-level task force to set out what it proposes to do.
I hope that letting everyone off the hook is not the prescription.
I received a couple of emails on the airbag metaphor for the
ESA. I was reminded that when airbags first came out, stories
circulated about teen-agers who intentionally rammed cars
into solid objects for the thrill of setting off the bags.
The stories may or may not be urban legends, but perhaps the
metaphor can be extended.
Most Endangered Species Act issues get resolved – not
necessarily quickly or painlessly, but ultimately satisfactorily
– when people try to solve the problems. With anti-ESA
rhetoric becoming more heated every year, it seems to me that
we may be entering a different phase now.
There is a temptation when an ESA issue pops up to provoke
a major confrontation in an effort to take the law down rather
than trying to solve the problem. That was the story on the
Klamath, which now more symbol than river to most Americans.
For the sake of our Western spirit and economy, I hope that
we can work on solving the human and ecosystem problems on
our rivers, and steer around the solid object that is the
ESA.
- Steve Malloch
New Mexico's
growth depends on water plan
By Greg Lakes, editor
Headwaters News
Oct. 29, 2003
New Mexico may well lead the region in
both the severity of its water problems and its approach toward
a solution.
And while the clash between Albuquerque, irrigators
and endangered minnows deservedly has captured most of the
headlines, the repercussions will cut far deeper.
On the fish front, U.S. Sen. Pete Domenici’s
attempt to override a court ruling that favored minnows has
galvanized friends and foes across the West, but it’s
seen as added
frustration to those seeking solutions.
Domenici called his amendment to an Interior appropriations
bill a warning shot to the 10th Circuit Court of Appeals in
Denver but the Santa Fe New Mexican called it
“the legislative ham-fistedness we’ve been
warning about for years.”
The bill, sponsored by New Mexico Democrat Jeff
Bingaman in the House would not only prevent usurping Albuquerque
water for silvery minnows but would exempt from the Endangered
Species Act such things as sewage-plant runoff, Los Alamos
discharges, and herbicide and pesticide spray, while preserving,
according
to the New Mexican’s example, flood irrigation of
hay fields.
New Mexico has 16 regional water districts,
each of which is to write its own water-management plan. Six
of them are done, although officials say they may have to
be revised to
mesh with a statewide water plan promised by the end of
the year.
But so far, that statewide plan has yielded
only general principles and criticism
that it lacks substance.
A draft released last week said the plan would encourage conservation
and preserve traditional rights of irrigators, and it proposed
better metering of water use. It would also give the state
engineer more authority to deny new wells.
The state’s top
priority, it said, would be to meet its eight different
compacts to deliver specified amounts of water to downstream
states and users. For the Rio Grande, that means better conservation
and fewer diversions. For the Pecos River, officials plan
to develop a well field and pump ground water into the river.
The plan's second priority would be to protect
senior water rights, delineated by the West’s hallowed
first-in-time, first-in-right doctrine. New Mexico’s
problem is that
less than 20 percent of water rights in the state have
been formally adjudicated.
The upshot so far, according to one private
hydrogeologist is “a great description of motherhood
and apple pie.”
New Mexico is in its fourth year of extreme
drought, and by 2005, it is expected to be the nation’s
fifth-fastest-growing
state, a combination that on a local level makes both
the immediate situation and the long-term outlook more dire.
A state report last May said Santa Fe’s
demand for water will more than double by 2060, as the area’s
population grows from 160,000 to 360,000.
Severe restrictions on growth and development are inevitable,
according to local officials and observers. Potential solutions
– buying up irrigation rights and moratoriums on growth
among them – won’t be easy and the New Mexican’s
editorial page said officials haven’t shown enough backbone
to implement them.
Santa Fe officials are considering a variety
of options to find more water for rising demand, none
of them cheap, although cost figures aren’t expected
until the end of the year.
Plans have identified six places from which to divert surface
water, some of which would require more than 20 miles of pipeline,
as well as using reclaimed water and new wells.
Yet the City Council chairman wryly noted that hand-wringing
over waning supplies had been accompanied by an easing
of water restrictions.
"Nothing has really changed," he said. |
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