Implementing the Endangered Species Act on the Platte Basin Water Commons

Implementing the Endangered Species Act on the Platte Basin Water Commons

David M. Freeman
Copyright Date: 2010
Pages: 483
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  • Book Info
    Implementing the Endangered Species Act on the Platte Basin Water Commons
    Book Description:

    Water users of the Platte River Basin have long struggled to share this scarce commodity in the arid high plains, ultimately organizing collectively owned and managed water systems, allocating water along extensive stream systems, and integrating newer groundwater with existing surface-water uses. In 1973, the Endangered Species Act brought a new challenge: incorporating the habitat needs of four species-the whooping crane, piping plover, least tern, and pallid sturgeon-into its water-management agenda. Implementing the Endangered Species Act on the Platte Basin Water Commons tells of the negotiations among the U.S. Department of the Interior, the environmental community, and the states of Wyoming, Colorado, and Nebraska that took place from the mid-1970s to 2006. Ambitious talks among rival water users, environmentalists, state authorities, and the Department of the Interior finally resulted in the Platte River Habitat Recovery Program. Documenting how organizational interests found remedies within the conditions set by the Endangered Species Act, describing how these interests addressed habitat restoration, and advancing sociological propositions under which water providers transcended self-interest and produced an agreement benefiting the environment, this book details the messy process that took place over more than thirty years. Presenting important implications for the future of water management in arid and semi-arid environments, this book will be of interest to anyone involved in water management, as well as academics interested in the social organization of common property.

    eISBN: 978-1-60732-055-5
    Subjects: Political Science, Ecology & Evolutionary Biology

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. List of Figures and Maps
    (pp. xi-xii)
  4. List of Tables
    (pp. xiii-xiv)
  5. List of Acronyms
    (pp. xv-xvi)
    (pp. xvii-xviii)
    Robert Ward

    How does an environmental agenda, at the river basin scale, become incorporated into a typical western utilitarian water allocation system? Here is the detailed story of complex negotiations regarding habitat restoration on behalf of four species listed under the federal Endangered Species Act—the whooping crane, piping plover, least tern, and pallid sturgeon. The tale is documented by a sociologist who attended the bulk of the negotiating sessions across the final ten years, a person without attachment to any particular position, a person who wanted to closely observe and faithfully record the unfolding of contending positions and issues. All of...

    (pp. xix-xxii)
    (pp. xxiii-xxvi)
  9. Part I Introduction
    • CHAPTER 1 Problem and Significance
      (pp. 3-10)

      In a moment utterly without drama, on October 24, 2006, negotiators representing Colorado, Nebraska, Wyoming, the environmental community, and the United States Department of the Interior—each of whom had struggled for years in Platte River habitat recovery talks—assembled in a Denver hotel conference room. The mood was quietly positive as they sat in a horseshoe arrangement at tables covered with white tablecloths studded with notebooks, laptop computers, water pitchers, glassware, and soft-drink cans. For nearly an hour they had been reviewing for one last time electronically projected editorial changes to the bulky program document. Among some good cheer...

    • CHAPTER 2 Change on the River
      (pp. 11-26)

      The waters of the Platte River Basin are among the most intensively exploited on the planet. By the time the South Platte River meets the North Platte to form the main stem, both tributaries have been harnessed repeatedly for the utilitarian needs of industrial agriculture, urban life, and flat-water recreation—a pattern sustained on the river downstream across Nebraska (see Map 2.1). Hydrologists estimate that in some stretches the waters are used an average of eight times as diverted water returns to the river for reuse by agriculture, urban treatment plants, groundwater use, and recharge (Ring 1999). People and other...

  10. Part II Social Construction of the Crisis
    • CHAPTER 3 Into a Federal Nexus
      (pp. 29-36)

      The ecological problem became a social organizational and political problem by virtue of the legal mandate encoded in the Endangered Species Act (ESA) of 1973. Degraded habitats for whooping cranes, piping plovers, least terns, and the pallid sturgeon were intimately linked, at least in the view of the U.S. Fish and Wildlife Service (USFWS) and the larger environmental community, to the construction of Platte and Missouri basin water facilities, especially dams, reservoirs, and diversions. The ESA would force a confrontation between the activities of water users in the basin and the needs of four species listed under that law. The...

    • CHAPTER 4 Colorado in a Federal Nexus: Defending the Water Tower
      (pp. 37-46)

      Citizens of this headwaters state, the most urbanized in the Missouri Basin, have constructed a hydraulic society that lives off a fraction of snowpack runoff for a brief period each spring and a small amount of warm-season precipitation. They know they must fulfill obligations to other states as required by compacts on virtually all of their drainages. The future for Colorado’s economic growth, society, and environment depends on keeping the widest gap possible between what mountain watersheds produce in a given year and what is required at the state lines. The Colorado perspective is driven fundamentally by a need to...

    • CHAPTER 5 Nebraska in a Federal Nexus: Threat to the Big House
      (pp. 47-54)

      Nebraska is the place where the arid West begins. Two-thirds of its length falls on the western side of the 98th meridian, the fixed marker of a variable point—shifting from wet to dry years—that defines precipitation of twenty inches a year or less. Nebraska farmers are world leaders in the production of grain, and the state’s economy is dominated by high-input, high-output–production agriculture and its support services. This is all made possible by extensive reliance on irrigation water, most of which is pumped to the surface by wells tapped into aquifers tributary to the Platte River and...

    • CHAPTER 6 Wyoming in a Federal Nexus: Defending the Mountaintop
      (pp. 55-62)

      Wyoming’s North Platte water users have been in a relationship with the federal government and the mandates of the Endangered Species Act (ESA) because they have been beneficiaries of federal dams, reservoirs, river diversions, and canals that capture over 2.8 million acre feet of North Platte River water for irrigation and hydroelectric power. The U.S. Bureau of Reclamation (USBR) owns and manages—on behalf of four Wyoming irrigation districts and nine Nebraska districts—the infrastructure that has significantly altered stream flows, sediment loads, and consumptive uses across a wide stretch of high semi-desert. All of this federally constructed North Platte...

  11. Part III Initiating Negotiations
    • CHAPTER 7 Options: Individual Consultations, Litigation, or Constructing a Cooperative Program
      (pp. 65-74)

      The drafting of the U.S. Constitution was an occasion for struggling with the vexing question of how to balance power between states and the federal government. Federalism as a system of dual sovereignty was cobbled together on a fundamental principle: “The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite” (U.S. Constitution, Amendment 10). Federal environmental legislation, particularly the Endangered Species Act (ESA), needed to be implemented within the locus of state water administration. Therein lay a problem.

      Aridity in the West...

    • CHAPTER 8 Organization of Negotiations
      (pp. 75-90)

      Following the signing of the 1994 Memorandum of Agreement (MOA), the Department of the Interior’s (DOI) assistant secretary of water and science was appointed to lead the federal negotiation team. The governors of each of the three states appointed staffs to represent their interests. Representatives of the water provider organizations were appointed by their respective authorities, including the Central Nebraska Public Power and Irrigation District (CNPPID), the Nebraska Public Power District (NPPD), Denver Water, the Northern Colorado Water Conservancy District (NCWCD), and the Pathfinder and Goshen irrigation districts.

      How would environmentalists be incorporated into the negotiations? Unlike representatives of federal...

  12. Part IV Negotiating Interests
    • CHAPTER 9 Colorado’s Interests
      (pp. 93-108)

      In defense of their water tower and to assemble their contribution to a habitat recovery program, Colorado’s South Platte water providers configured their designs to fit the fundamental realities of their situation. They needed to preserve the integrity of the Nebraska-Colorado Compact, develop alliances with water interests on the lower river near the Nebraska border, prevent opportunistic destructive water raids in the name of legal compliance, and secure water flows for listed species in a heavily appropriated basin.

      Interstate water compacts allocate rights to consumptive use (Corbridge and Rice 1999: 534–540; Dunbar 1983). They are treaties made among states,...

    • CHAPTER 10 Nebraska’s Interests
      (pp. 109-126)

      The buildup of return flows that sustained successively lower-elevation irrigation canals on Colorado’s South Platte and Wyoming’s North Platte were longer in coming to western Nebraska, and they were more modest in quantity. Many Nebraska farmers therefore moved away from their dry-land beginnings to irrigation by groundwater as soon as possible. By the mid-twentieth century, Nebraska agriculture relied far more on groundwater pumping than on surface diversions of river flows into canals.

      The big house of Nebraska irrigation therefore raised two offspring—a minority of canal water users and a large majority of well owners who historically felt no responsibility...

    • CHAPTER 11 Wyoming’s Interests
      (pp. 127-138)

      A federal agency, the U.S. Fish and Wildlife Service (USFWS), was on the prowl for 417,000 acre feet per year with which to fulfill its central Platte River target flow aspirations in Nebraska. Another federal agency, the U.S. Bureau of Reclamation (USBR), held potentially available water in its string of Wyoming North Platte River reservoirs—Seminoe, Kortes, Pathfinder, Alcova, Glendo, and Guernsey. The obvious juxtaposition of water demand for a new federal environmental agenda and a potential federal supply for that agenda deeply worried state water providers.

      Furthermore, Wyoming water interests wished to pursue a modification of Pathfinder Dam that...

    • CHAPTER 12 States, Federal Agencies, and the Water Plan
      (pp. 139-144)

      Representatives of the U.S. Fish and Wildlife Service (USFWS) and the U.S. Bureau of Reclamation (USBR)–environmental impact statement (EIS) team were engaged in continual discussions with each other, the states, environmentalists, and basin water users. Federal authorities played a critical role in support of negotiations that had brought them to the point in the fall of 2000 when a water action plan had been pieced together. There were hopes that an agreement could be reached in time for last-minute signatures by Clinton administration authorities.

      The USFWS kept up an intermittent and clear drumbeat heralding that the Endangered Species Act...

  13. Part V Politics and the Roles of Science
    • CHAPTER 13 Defining Success: Science as a Referee in a Game Where No One Knows the Score
      (pp. 147-154)

      The three basin states and the Department of the Interior signed on to the 1997 Cooperative Agreement on the premise that they would find ways to negotiate a program rooted in solid, peer-reviewed science. That vision has been noble but deeply problematic. How do program participants balance today’s need for immediate action on behalf of listed species with the need for further study to understand habitat requirements? What observable indicators can establish that the program is or is not working? Who gets to define those indicators and the criteria for assessing progress? The promise of “regulatory certainty” had been the...

    • CHAPTER 14 Science as Justification for Sacrifice: The Junk Science Controversy
      (pp. 155-164)

      In science, truth is procedural. Truth is dependent on the logical procedures used to arrive at it. A fact is judged according to the quality of procedures that produced it. The person who has only one watch knows what time it is, but a group with multiple watches may never be certain. But there are better and worse watches, better and worse methods for employing them, and better and worse logics by which to draw conclusions from the readings. Open, reasoned discussion of the use and maintenance of watches will tend to ensure that potential abuses of time keeping are...

    • CHAPTER 15 Science as Faith: Negotiating an Adaptive Management Deal for Terrestrial Habitat
      (pp. 165-178)

      One aspect of Endangered Species Act (ESA) implementation has been the designation of critical habitats—the geographic areas requiring special management on behalf of target species. On the Platte, no critical habitat has been designated for the least tern or pallid sturgeon. For the whooping crane, designated critical habitat begins at the upstream end at the junction of U.S. Highway 283 and I-80 near Lexington, Nebraska, and extends eastward along the river and downstream to a point near the community of Shelton. Piping plover critical habitat is contiguous with that of the whooping crane but extends farther downriver to its...

    • CHAPTER 16 Science as Faith: Putting Adaptive Management to Its First Test with the Sedimentation-Vegetation Problem
      (pp. 179-192)

      Sediments washed down from the Rocky Mountain Front Range have long provided much of the muddy glop on which Lower Mississippi River Valley ecosystems and civilizations have been built. Sedimentation had been crucial to the construction of traditional tern, plover, and crane habitat along the Platte. The capacity of basin water flows to move a range of sizes of earthen particles would loom large in recovery program negotiations. The problem of moving sands and gravels by Platte flows to the right places and in the right shapes would bring the negotiations to their lowest point, to the very edge of...

    • CHAPTER 17 Scent of Victory and Impasse
      (pp. 193-196)

      By the summer of 2002, the construction of a reasonable and prudent alternative was well under way. A water action plan had been outlined, a terrestrial habitat plan had been sketched, and protocols for research and monitoring efforts were being put in place. If the U.S. Fish and Wildlife Service (USFWS) would accept a general conceptual plan that left much to be negotiated in the first program increment and if Nebraska could resolve its internal problems, it was possible for water users to imagine that the prospect for a thirteen-year period of regulatory certainty was tantalizingly close.

      On July 17,...

  14. Part VI Reaching Sufficiency:: Wrestling with Skunks
    • [Part VI Introduction]
      (pp. 197-198)

      On Wednesday, February 19, 2003, soon after the Governance Committee gathered in a motel conference room near Denver International Airport, the leader of the U.S. Fish and Wildlife Service (USFWS) team stepped up to a flip chart. He listed in two or three words each item that had to be addressed if there were to be any hope of putting together a successful reasonable and prudent alternative. Each item had been lurking around the negotiating table in unresolved form for years. The long-postponed searches for solutions to critical problems had to be meaningfully addressed in ways that would give substance...

    • CHAPTER 18 Negotiating Context, 2000–2006
      (pp. 199-212)

      Periodic drought has long been part of life in the West, especially in the Platte Basin (McKee et al. 2000). Drought returned to all three basin states in 1999 and 2000, and it was severe, reaching record-breaking levels by 2002. It remained a factor for the duration of the negotiations, through 2006. Depending on the location, the last years that had experienced generally average or above-average precipitation were 1998 and 1999. By the summer of 2002, the lack of precipitation had placed Platte Basin water supply constraints in sharp relief (see Tables 18.1, 18.2, 18.3, and 18.4). In late 2004,...

    • CHAPTER 19 Regime of the River: Colorado and Nebraska Nightmares
      (pp. 213-238)

      There was a tangle of issues connected to the “regime of the river.” The term had come up initially in Federal Energy Regulatory Commission (FERC) re-licensing discourse about the environmental account (EA) that had been installed at Lake McConaughy and signed as an official FERC–Central Nebraska Public Power and Irrigation District (CNPPID)–Nebraska Public Power District (NPPD) deal effective in 1998. Regime of the river had come to mean the flow characteristics of the North Platte, South Platte, and central Platte rivers that existed as of mid-1997, when the Cooperative Agreement (CA) had been signed (Cooperative Agreement 1997: tab...

    • CHAPTER 20 Regime of the River—Sharing Peak Flows: Colorado and the USFWS Struggle on the South Platte
      (pp. 239-254)

      The frequency and magnitude of river flow peaks are determined by many variables. In general, they vary directly with precipitation intensity, speed of snowmelt, and slope steepness. They tend to vary inversely with soil infiltration rates, vegetation density, and diversions to reservoir storage. In the Platte Basin, flow peaks produced by snowmelt have tended to arrive in May and early June. They also appear in response to intense summer storms that can, with devastating suddenness, send walls of water crashing down river channels—uprooting vegetation, carrying heavy sediment loads, configuring sandbars, and generally rearranging riparian habitats for people and other...

    • CHAPTER 21 Regime of the River: Wyoming and Nebraska Address New Depletions
      (pp. 255-264)

      Historically, Nebraska has had an interest in seeing that Wyoming reservoirs maintain their yields because Nebraskans have lived primarily on Wyoming direct and return flows. About 80 percent of the water captured behind Wyoming’s North Platte reservoirs is typically destined for Nebraska water providers. Furthermore, in the early years of the basin-wide discussions in the 1980s and 1990s, Nebraskans had feared that they would be left solely responsible for creating a reasonable and prudent alternative in the form of river habitat restoration. Nebraska felt a need to ensure that Wyoming and Colorado were brought into the negotiations in such a...

    • CHAPTER 22 Regime of the River: Nebraska Confronts Its History
      (pp. 265-282)

      The regime of the river Nebraska was in the process of defending vis-à-vis Colorado and Wyoming was falling apart within its own borders. In mid-1997, when Nebraska authorities signed the Cooperative Agreement (CA) and thereby promised to prevent or offset post-1997 depletions, they had no legal basis to prevent new groundwater exploitation or expansion of irrigated acreage. In many places the groundwater commons was unsustainably exploited, and solutions could not be found in a continued self-seeking pursuit of satisfaction of individual preferences in marketplaces. There would have to be large-scale collective action. The historical abundance of the groundwater resource, combined...

    • CHAPTER 23 Regime of the River—Building a Federal Depletions Plan: States Confront the U.S. Forest Service
      (pp. 283-304)

      Other regime-of-the-river fights had pitted state against state and Colorado, at least, against the U.S. Fish and Wildlife Service (USFWS) over peak flow issues on the South Platte. But another river regime “skunk” needed to be wrestled. In this instance, the states would unite against the U.S. Forest Service (USFS). The states believed the USFS’s timber management policies posed a threat to the river’s twentieth-century flow regime. Forests catch, hold, transpire, and release surface water downstream. The USFS’s management practices were, at least in the view of the states’ representatives, deeply entangled in regime-of-the-river considerations and, in the states’ perspective,...

    • CHAPTER 24 Regime of the River: Inserting Pulse Flows
      (pp. 305-318)

      Impounded water made it possible to build a civilization that required the capture of spring flood peaks and other pulses so they could be distributed across time and space for intensified agricultural production and to fulfill urban demand. But prior to dam building, unconstrained rushing floodwaters had determined the geomorphology of the basin and the diversity of its wildlife habitats. Although the states did not agree, to the U.S. Fish and Wildlife Service (USFWS) riverine habitat restoration meant at least a modest insertion of pulse flows with the objective of scouring vegetation and redistributing sediment to help maintain a shallow,...

    • CHAPTER 25 Locked into an Awful Dance: Bypass Flows and Hydro-cycling
      (pp. 319-336)

      The U.S. Fish and Wildlife Service (USFWS) pushed for a commitment from the Central Platte Public Power and Irrigation District (CNPPID) and the Nebraska Public Power District (NPPD) to provide, under some pulse-building circumstances, bypass flows of Lake McConaughy environmental account (EA) water. These flows would be created if the CNPPID and the NPPD would temporarily waive their right to divert such water into their networks of canals, small reservoirs, and power plants. Bypass flows were those left in the river; they would bypass NPPD’s Keystone headgate and CNPPID’s Tri-County diversion to be routed down the Platte River channel.


    • CHAPTER 26 The Pallid Sturgeon Habitat Gamble
      (pp. 337-348)

      Available evidence suggested that the pallid sturgeon was in extreme danger of becoming extinct (U.S. Fish and Wildlife Service 2000a: 7). In the view of the U.S. Fish and Wildlife Service (USFWS), the pallid sturgeon’s plight could not be ignored. If the habitat recovery program focused exclusively on the needs of the three listed bird species far upstream, the agency and the states would be vulnerable to being compelled by environmentalist-inspired lawsuits to enter individual ESA Section 7 consultations regarding the pallid sturgeon’s needs. In principle, a separate habitat recovery program could have been developed, but no one wanted to...

  15. Part VII Reaching Sufficiency:: Structuring Decision Making
    • CHAPTER 27 Wielding the Regulatory Hammer
      (pp. 351-364)

      The problem in general was that environmental impact statement (EIS) and biological opinion (BO) analytical teams had been attempting to formulate publicly defensible documents in the service of a more natural variable flow vision, but the states and water providers had accepted virtually none of their ideas. How could the U.S. Fish and Wildlife Service (USFWS) go into the public arena with a draft EIS that examined a program proposal the states would not associate themselves with in major respects? Did the USFWS and the U.S. Bureau of Reclamation (USBR) really want to release descriptions and examinations of a proposed...

    • CHAPTER 28 Adaptive Management: Lashing Together Conflicting Visions with a Chinese Wall
      (pp. 365-380)

      At its core, the struggle over the draft biological opinion (DBO) was a fight about how adaptive management would be conducted on the Platte River. That fight, in turn, was about how the interests would govern themselves under uncertain conditions. Whatever adaptive management was going to mean, it had to offer a way to manage intensified conflicts regarding (1) regulatory requirements for specific front-loaded program substance—how could state commitments be tied to the delivery of measurable benefits to species while also acknowledging the states’ defined contribution stance and their refusal to share in any natural flow vision; (2) politics—...

  16. Part VIII Conclusions:: Making a Mesh of Things
    • CHAPTER 29 Search for Approval
      (pp. 383-396)

      If there was ever a celebration of the completion of twelve years of negotiations, the nearest approximation followed a morning of discussion of the political challenges in obtaining authorizations and appropriations from the federal government. It was Monday, December 11, 2006. The setting was a hotel conference room near Denver International Airport. Members of the Governance Committee and some staff members took a break to eat cake and enjoy a cup of coffee. Some shared memories of more difficult times. This session constituted the last gathering of the people who, as negotiators, had constructed the terms of the Platte River...

    • CHAPTER 30 Policy Implications
      (pp. 397-406)

      The Platte River system once provided paths for the great Platte River Road—the convergence of the Oregon, Mormon, California, and Overland trails through the high plains east of the Rocky Mountains (Mattes 1969). From the mid-1840s through the early 1860s, over 350,000 people of European descent traveled west on that road—one of the greatest human migrations in world history. For them, it was mostly a path to someplace else by following a river that would water them and their livestock. There was little thought of paying allegiance to that river or its encompassing prairie. Over the past 100–...

    • CHAPTER 31 Theory Implications
      (pp. 407-428)

      In all societies, collective goods have been seen as essential to the production and enjoyment of private goods. Public roads and streets are necessary for the use of private automobiles. The Federal Communications Commission regulates the airwaves so that individuals and organizations can use market exchange to build, distribute, and enjoy radios, televisions, and telephones. We have recently been reminded of the importance of the Security and Exchange Commission and the Federal Reserve banking system and their roles in keeping regulatory practices up to standard so the stock markets and the banking system can function properly to allocate investment capital....

  17. Appendixes
  18. References
    (pp. 457-474)
  19. Index
    (pp. 475-484)