Revision as of 23:59, 21 May 2017

Case Description

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Water Features:	Colorado River, Colorado Basin
Geolocation:	37° 11' 7.9289", -110° 53' 37.6294"
Total Population	88,000,000 millionmillion
Total Area	280,000280,000 km² 108,108 mi² km²
Climate Descriptors	Arid/desert (Köppen B-type), alpine
Predominent Land Use Descriptors	conservation lands
Important Uses of Water	Agriculture or Irrigation, Domestic/Urban Supply, Hydropower Generation, Other Ecological Services
Riparians:	Colorado (U.S.), Utah (U.S.), Wyoming (U.S.), New Mexico (U.S.), United States of America
Water Projects:
Agreements:	Colorado River Compact, 2007 Interim Guidelines for Colorado River Operations, 1944 US-Mexico Water Treaty

Summary

Over eight million people in one of the United States’ most water stressed regions depend on water from the Upper Colorado River Basin, including the San Juan River. From 1960 to 1990, the Upper Basin states experienced large population growth. During the same period, Congress passed the Endangered Species Act (ESA) in 1973 protecting imperiled species (Endangered Species Act of 1973).

The passage of the ESA along with increased pressures on the basin’s resources set the stage for potential conflict over imperiled fish species in the river systems among the region’s water users, environmentalists, and the government. In 1983, FWS drafted a proposal to protect four endangered species in the Colorado River: the Colorado pikeminnow, the humpback chub, the bonytail, and the razorback sucker. The threat posed by potential ESA-related lawsuits set the stage for the creation of the Upper Colorado River Endangered Fish Recovery and San Juan River Basin Recovery Implementation Programs.

Stakeholder groups composed of water users, government agencies, Native American tribes, Upper Basin states, and environmentalists created the Upper Colorado River Endangered Fish Recovery and San Juan River Basin Recovery Implementation Programs in 1988 and 1992, respectively. These Programs allow water users the right to continue to develop their legal water rights and construct water projects while protecting and recovering the fishes through flow management, habitat restoration, hatchery releases, control of nonnatives, beneficial capital projects, and research into the species’ natural histories.

The Programs have stabilized and increased the populations of all four species, though only two of the four species will likely be delisted by the official end of the program in 2023. At the same time, the Programs have facilitated the development of 2,500 water projects by granting them automatic compliance through the Programs, instead of necessitating project-specific ESA review.

The Programs have achieved success for a variety of reasons. The initial negotiation environment encouraged the parties to collaborative on creative solutions with limited alternatives to this approach. The Programs have achieved ongoing success due to working transparently, openly engaging stakeholders across sectors, focusing on science-based results, adaptively managing the program, fostering grassroots support and turning this into political support, providing on the ground funding, simplifying water project development, and establishing trust and relationships among the involved stakeholders over more than two decades.

Natural, Historic, Economic, Regional, and Political Framework

Natural, Historic, Economic, Regional, and Political Framework of the Colorado and San Juan Rivers

Geographic Outline

Map of Colorado River Basin with Dam Locations

The Colorado River flows 1,450 miles (2,330 km) from the Continental Divide in the Colorado Rockies to the Gulf of California in Mexico. The Colorado River Basin covers approximately 246,000 square miles in primarily arid regions of seven U.S. States (Colorado, New Mexico, Wyoming, Utah, Arizona, Nevada, and California) and two Mexican States (Sonora and Baja California) (Kammerer 1990). Over 85% of the Colorado’s water comes from spring snowmelt in the Colorado and Wyoming Rockies. This leads to seasonal runoffs that peak in May and June. Extensive infrastructure projects developed throughout the river course over the last century have modulated much of this variability (USGS 2014).

The Upper Basin of the Colorado is considered as the drainage area above Lee’s Ferry, near Page, Arizona and covers 108,000 square miles (Luecke et. al 2005). The Upper Basin States of Colorado, Wyoming, Utah, and New Mexico are the primary users of water from this region.

Map of San Juan River Basin

The San Juan River is the third largest tributary to the Colorado River. The river flows 383 miles (616 km) from the San Juan Mountains in Southwestern Colorado, meeting the Colorado at the Lake Powell reservoir. Like the Colorado, the San Juan receives the majority of its water from the melt off of the spring snow pack. The San Juan drains an approximately 38,000 square mile area, primarily in Colorado, New Mexico, and Utah (Benke and Cushing 2005; https://www.fws.gov/southwest/sjrip/index.cfm).

Economic and Regional Outline

While the Colorado River is not among the largest rivers in the United States by volume, over 35 million users living in one of the country’s most water stressed regions rely on it for consumptive, agricultural, industrial, and recreational purposes (Milstein 2009). Approximately 8 million of the Colorado’s water users live in Upper Basin states. In many parts of their courses, the Colorado and San Juan Rivers are the only notable sources of fresh water, leading to high utilization and competition among users. In Colorado, the most populated Upper Basin State, agriculture makes up 86% of consumptive water use (compared to 78% in the entire Colorado Basin), followed by municipalities, industry, and energy producers (State of the Rockies 2011-2012; CWCB 2017). There are also many recreational and environmental non-consumptive uses (CWCB 2017).

Historic and Political Outline

Given the large population relying on the Colorado and the relative scarcity of other water sources, extensive water law, known as the Law of the River, has developed to regulate use of the Colorado’s water resources (Milstein 2009). The Colorado River Compact, a central tenant of this regulatory framework, allocates 7.5 million acre feet annually to both the Upper Basin and Lower Basin states (USBR 2008). When the Upper Basin states originally signed the Colorado River Compact in 1922, they did not need to use their full allocation or have the storage capacity to ensure full utilization. Expansive population growth, especially in Colorado’s Front Range and Salt Lake City, over the past century as well as the construction of several high capacity dams along the Upper Colorado and its tributaries have substantially increased withdrawals throughout the Upper Basin.

The Upper Colorado River Basin Compact of 1948 allocates the annual 7.5 million acre feet allotment among the Upper Basin states. Colorado receives 3.86 million acre feet annually, the majority of the allotment (51.75%), followed by Utah (23.0%), Wyoming (14.0%), and New Mexico (11.25%) (USBR 2008). In Colorado, roughly three quarters of the precipitation feeding the Colorado and San Juan Rivers falls west of the Rocky Mountains while three quarters of the state’s population lives on the eastern Front Range, leading to large water transfers across the state (Peter Flemming personal communication).

Creation of the Upper Colorado River Endangered Fish Recovery and San Juan River Basin Recovery Implementation Programs

Origins of the Dispute

Endangered Species Act of 1973

Congress passed the Endangered Species Act (ESA) in 1973, which prevents threatening imperiled species and provides recovery habitat (Endangered Species Act of 1973). The ESA greatly expanded the ability of the government to protect imperiled species and their habitats, gaining the nickname, the “pit bull of environmental laws” (Petersen 2002, ix). The United States Fish and Wildlife Service (FWS) is the primary actor responsible for enacting the law and maintaining the list of imperiled organisms (Endangered Species Act of 1973; U.S. Fish and Wildlife Service 2012).

The FWS protects threatened and endangered species through multiple polices. FWS designates critical land necessary for the recovery of the imperiled species, which may include both private and public lands. These lands include areas where species live, breed, and use as travel corridors. Federal agencies cannot destroy or change these lands in a way that could adversely impact the species unless a specific project receives exemption. Private landowners, while less closely monitored, are subject to most of the same restrictions and required to obtain permits to conduct large-scale operations that could potentially modify an imperiled specie’s habitat (Brooks et. al 2002; Suckling and Taylor 2006).

The ESA also outlaws the ‘taking’ of protected species, broadly defined as activities that adversely affect protected populations. Illegal activities include killing, hunting, injuring, disturbing the habitat of, collecting parts of, importing, exporting, delivering, carrying, possessing, selling, buying, and violating distance restrictions provided for protected species. All of these offenses are federal crimes, carrying fines up to $50,000 and/or a year in prison (Endangered Species Act of 1973; Animal Welfare Institute 1983; NOAA Endangered Species Act Penalty Schedule 2001).

In addition, FWS, creates conservation plans for newly listed species. These plans detail the measures necessary for recovering a species to healthy population levels. They also describe the metrics for estimating recovery (often total species population or number of breeding pairs) and estimate the costs involved in the process (Endangered Species Act of 1973; Suckling and Taylor 2006; FWS: ESA Basics 2011).

Demographic Change

From 1960 to 1990, the Upper Basin states experienced some of largest rates of population increase in the United States. Colorado, the most populated Upper Basin state, experienced a drastic population growth rate of 64%, growing from 1.77 to 3.31 million people (during the same period the U.S.’s growth rate was 38%). This large regional increase in population combined with economic growth increased the use the Colorado and San Juan’s water resources. The growth of cities and the expansion of the energy industry is likely to compete with agricultural for a larger percentage of the region’s water use (CWCB 2017).

Catalyst for the Programs

Young Humpback Chubs after Release in Shinumo Creek

The passage of the ESA along with increased pressures on the basin’s resources set the stage for potential conflict over imperiled fish species in the river systems among the region’s water users, environmentalists, and the government. The Supreme Court’s 1978 decision on Valley Authority v. Hill, (437 U.S. 153) halted the construction of the Tellico Dam in Tennessee to protect the snail darter, a species of fish. This language within the decision demonstrated “unusually strong” judicial support for the ESA (MacDonnell personal communication). This decision set a strong precedent. Other water users saw that fighting the ESA through litigation would likely prove uncertain at best and futile at worst (Chart, Flemming, Pitts, and Treese personal communication).

Bonytail Chub

In 1983, FWS drafted a proposal to protect endangered species in the Colorado River that would have prohibited additional water withdrawals from the Colorado River in Utah, Wyoming, and Colorado unless replaced by an equal amount of water. The proposal aimed to protect four species of fish endemic to the Colorado River and its tributaries: the Colorado pikeminnow, the humpback chub, the bonytail, and the razorback sucker.

Pikeminnow

While there was little available science at the time to base recovery of the species on, the FWS proposal set minimum stream flows to pre-1960s levels that no longer existed (Luecke et. al 2003; Pitts personal communication; Pitts 2010). If implemented, this proposal would, in effect, have stopped water development, limited use of existing water allocations, and contradicted existing allotments allowed through interstate compacts in the Upper Basin States (Pitts 2012). The memo set the stage for potential conflict.

Adult Razorback Sucker

Creation of the Programs

Upper Colorado River Endangered Fish Program

The threat posed by potential ESA-related lawsuits with the power to severely restrict water development combined with uncertain legal recourse against such action set the stage for the creation of the Upper Colorado River Endangered Fish Recovery Program (Pitts 2012). Water users knew that of their options – filing lawsuits challenging ESA restrictions, enforcing the ESA without alteration, seeking to amend the ESA, lobbying for exemptions from the act, or finding a new approach – the last option was the most viable (MacDonnell, Pitts, Treese personal communication).

The Colorado Water Congress (CWC), a nonprofit organization that advocates for Colorado water users, launched a program in 1983 to respond to the FWS proposal. The program sought to find an administrative solution that would fulfill ESA requirements and allow the Upper Basin states and private water users to further develop water resources (Pitts 2010; Pitts 2012). In March 1984, negotiations began among water users, environmentalists, federal agencies, and the states to jointly find a mutually acceptable solution. After several months of conversation did not lead to a consensus on what to do next, the water users’ representative, Tom Pitts, reframed the process in late 1984, recognizing that conflicts are a symptom of problems. As the problem was the endangered status of the fish, the solution was creating a program to delist the fish species while allowing for continued water development in the Upper Basin (Luecke 2003; Pitts personal communication).

Over the next two years, Colorado, Utah, Wyoming, the Bureau of Reclamation, the Colorado River Energy Distributors Association, Colorado Water Congress, the National Park Service, the Nature Conservancy, U.S. Fish and Wildlife Service, the Utah Water Users Association, the Western Area Power Administration, the Western Resource Advocates, and the Wyoming Water Association worked together to fully develop a recovery centered approach. The group recognized that species recovery would achieve the aim of the ESA, and thus provide regulatory and economic certainty for water users (Luecke et. al 2003; Pitts personal communication). Throughout their negotiations, the parties worked with six main principles:

Interstate compacts allocating water among the states must stay intact (meaning that no state would lose water);
The states must be able to allocate water to users within their boundaries according to their existing rights;
Cost would be equally distributed among the involved parties;
ESA requirements would be met;
Water projects would be able to continue to operate as originally authorized; and
States would have authority over non-imperiled species (Luecke et. al 2003; CRR 2017).

While these parameters set a high bar, they allowed all parties to participate without the risk of major setback. In addition, the parties agreed to a unanimous consensus rule to further ensure that no party would oppose the final decision (Flemming, Pitts, Treese personal communication). During this two year period, the stakeholders, led by representatives from each group, discussed a range of issues, including funding, cost sharing, ensuring water provisions for the endangered fish, control of invasive fish and invertebrate species, program governance, and operating hydropower projects within ESA regulations (Luecke et. al 2003). The group reached consensus on the program at the end of 1987, and the Governors of Colorado, Wyoming, and Utah; the U.S. Secretary of the Interior; and the Administrator of the Western Area Power Administration signed a Cooperative Agreement that formally created the Upper Colorado River Endangered Fish Program in January 1988 (CRR 2017).

The San Juan River Basin Recovery Implementation Program

The San Juan River Basin Recovery Implementation Program was established in October 1992 and is based on the framework developed during the Upper Basin Program’s negotiations, though it is tailored to the different regional circumstances of the San Juan Basin and only focuses on the recovery of the Colorado pikeminnow and razorback sucker (Pitts 2012; FWS 2017).

Regional stakeholders, including regional Native American tribes, began discussion about approaches to maintain ESA compliance due to FWS review of two major projects: The Animas-La Plata Project (ALP), an (at the time) proposed water transfer and storage project, and the Navajo Indian Irrigation Project (NIIP), an existing irrigation project. These discussions became more urgent in 1991 when FWS released a proposal requiring reoperation of the NIIP to maintain habit for the endangered fish due to possible impacts on water flows, water quality, contaminants, sediment, and temperature sediment, and temperature brought about by the ALP and other basin projects (Pitts 2011; CRR Briefing Document 2017; FWS 2017).

The Secretary of the Interior; the Governors of Colorado and New Mexico; and the Jicarilla Apache Nation, the Southern Ute Tribe, and the Ute Mountain Ute Tribe signed the Cooperative Agreement. The Navajo Nation jointed the program in 1996. The Bureau of Land Management, the Bureau of Reclamation, the Nature Conservancy, FWS, and water users also hold formal program seats on the program (Pitts 2011; CRR Briefing Document 2017; FWS 2017). As the tribes are sovereign nations, their inclusion was important and necessary to the project. They, like other water users, needed ESA compliance for their projects and know that participating in this agreement would be preferable to litigation (Pitts personal communication).

The San Juan Program, as initially established, includes five main program elements:

Protection of genetic integrity and management and augmentation of populations;
Protection, management, and augmentation of habitat;
Water quality protection and enhancement;
Interactions between native and nonnative fish species (control of non-native species); and
Monitoring and data management

Similarly, to the Upper Basin Program, the San Juan Program’s primary goals are to recover the endangered fish while also allowing water developed to continue in compliance with the law (FWS 2017).

Operation and Status of the Upper Colorado River Endangered Fish Recovery and San Juan River Basin Recovery Implementation Programs

Recovery Mechanisms

Both programs work to protect and recover the imperiled species through a variety of mechanisms. Cooperative water management that provides beneficial flows for the species is a major component. These flows have been achieved through a variety of means, including coordinated reservoir releases and irrigation efficiency improvements. The Programs also monitor water quality of protected habitats and identify sources of contamination, and work to remove water quality problems that could inhibit recovery. In addition, the Programs operate several hatcheries to raise bonytail, razorback sucker, and Colorado pikeminnow. These fish are released to reestablish genetically diverse, self-sustaining populations (Chart, Flemming, MacDonnell, Pitts, Treese personal communication; CRR Briefing Document 2017; FWS 2017).

Furthermore, several capital projects protect and restore the habitat of the endangered fish. These cooperative efforts include installation of fish passages to reconnect fragmented river sections and fish screens to prevent fish from entering irrigation canals and management of floods plains to provide nursery areas. The Programs also have multiple efforts to remove, control, and contain the over 50 nonnative species that compete with or consume the native species (CRR Briefing Document 2017). Nonnative removal efforts involve close coordination with local sports fishers who play an important role in controlling and preventing the spread of nonnative species. Monitoring is also a central part of the Programs to track population trends and recovery of the endangered species (Chart personal communication; FWS 2017).

Throughout time the Programs have shifted their focus to different elements of the recovery regimes. While properly managing water to create beneficial flow regimes was a key element earlier on in the Programs, these flows have largely been achieved. As of 2017, successful control of invasive species is seen as major step to ensure species recovery (Chart, Flemming, Pitts, Treese personal communication; CRR Briefing Document 2017; FWS 2017).

Program Funding and Recovery Metrics

Prior to 2000, the U.S. Bureau of Reclamation (BR) provided the majority of the funding for the Programs with additional funding from FWS and the Upper Basin States. However, in the mid-1990s, there was a growing recognition that additional funding and a shift to a more formal funding structure would be necessary. Several events triggered this shift. After the construction of a $1.5 million fish passage, the largest program expenditure at that time, the U.S. Congressional Appropriations Commission questioned whether the BR’s general authority to uphold the ESA was sufficient to make such a large expenditure. At the same time, the Programs expected future large expenditures on capital projects and annual budgets, with the overall need for funding exceeding initial expectations (Pitts personal communication). In addition, Colorado’s Governor at the time, Bill Owen, hesitated to provide continued funding support without more defined recovery goals (Treese personal communication).

On October 30, 2000, with bipartisan support, Congress passed Public Law 106–392—OCT. 30, 2000, which provided additional funding for the Programs. As of 2017, the Program partners have contributed a total of ~$380 million to the Upper Basin Program since its inception in 1989. Revenue from the BR and government hydropower projects have provided the majority of the funding during this time at ~$100 million (26%) and ~$96 million (25%) respectively. The other sources of funding are: credit for estimated power replacement costs (15%), water users (10%), FWS (9%), Colorado (6%), power customer capital funding (4%), Utah (2%), other federal appropriations (<1%), and Wyoming (<1%). In 2017, the Upper Basin Program’s budget went to nonnative fish management (27%), instream flow identification and protection (24%), program management (14%), propagation and genetics management (13%), research and monitoring (12%), habitat restoration (9%), and public engagement (1%) (PL 106–392 2000; CRR Briefing Document 2017).

The San Juan Program has received ~$75 million since 1992, with power revenues providing the largest revenue stream at $41 million (55%). Other funding has come from the BR (21%), the Bureau of Indian Affairs (9%), FWS (5%), New Mexico (3%), the Southern Ute Indian Tribe (3%), the Nature Conservancy (1%), Colorado (1%), the Bureau of Land Management (<1%), and the Jicarilla Apache Tribe (<1%). In 2017, the San Juan Program’s budget went to research and monitoring (37%), nonnative fish management (19%), propagation and genetics management (17%), program management (11%), funds management (8%), instream flow identification and protection (4%), habitat restoration (4%), and public engagement (1%) ((PL 106–392 2000; CRR Briefing Document 2017)

Funding for both Programs is indexed every year. Capital projects are funded through direct appropriations. The current funding levels are set until 2019 and discussion are underway to extend the funding to 2023 (Chart personal communication).

The 2000 funding arrangement was developed along with recovery goals intended to guide management and gauge recovery success. The goals serve as objective criteria to downlist the endangered fish to “threatened” and eventually completely delist (i.e. recover) them (CRR 2017).

Developing these recovery metrics was a contentious process and one of the major challenges faced by the Programs. At the start of the Programs, little was known about the populations sizes, spawning cues, or habitat requirements of the four endangered fish, and thus much of the Programs’ initial efforts focused on research and data collection (Pitts personal communication). When the funding structure and recovery metrics were developed in 2000, biologists had enough information to suggest that a number of complex metrics would need to be met to constitute a self-sustaining population, with no single metric able to gauge recovery alone. Convincing all Program stakeholders of the need for a multi-metric recovery approach and of the availability of sufficient science to track these metrics was a difficult process with several parties resorting to brinksmanship during these discussions. However, the group eventually reached agreement on the recovery goals and metrics, allowing for the additional program funding (Pitts, Treese personal communication). FWS approved the initial recovery goals in 2002. Congressional authorized the Programs through 2023 at which time all four species were targeted for recovery.

The federal government has the ultimate statutory obligation for compliance and fulfilment of the ESA. The Programs’ recovery goals must be updated every five years to incorporate new information. If the species have made sufficient recovery process during this time, the Programs receive continued authorization to serve as a reasonable alternative to specific project-level ESA review. Recovery is determined by reduction of threats to and improvement of the status for the four species. The recovery goals define self-sustaining populations primarily from species’ population sizes and the age of fish within these populations and also include management activities that need to be performed in specific river habitats. Furthermore, the goals provide estimates for the timeline of recovery. FWS will review downlisting or delisting of the species if a self-sustaining population has met required demographic and genetic metrics and management actions have reduced the threats that caused the ESA listing (Chart, Pitts personal communication, CRR 2017).

Status of the Listed Fishes

The Programs are working to establish several sufficiently sized, self-sustaining populations of all four protected species. While many populations are stable and increasing, rates of recovery are not as high as initially expected, primarily due to the increasing threat posed by nonnative species (Chart, Flemming, Pitts, Treese personal communication; CRR 2017).

Populations of pikeminnow have declined in Upper Colorado River over the past decade, primarily due to predation, but populations in the San Juan are relatively stable. Record high numbers of juvenile fish were collected in the Upper Basin in 2015 and the San Juan in 2014. FWS is expected to completed a Species Status Assessment (SSA) by the end of 2017 to explore species downlisting (CRR 2017).

At the start of the Programs, the wild populations of razorback sucker were extremely small and considered lost from the wild. Restocking efforts in the Upper Basin and San Juan Rivers have steadily increased population levels in both rivers. Research into the lifecycle and habitat of the razorback sucker has also allowed the Programs to better reintroduce and support the fish. FWS should complete a SSA for the razorback sucker in 2017, and the fish could be downlisted when it can complete a full life cycle in the wild (CRR 2017).

There are four wild, self-sustaining humpback chub populations in the Upper Basin, though a fifth wild population has been lost in the last two decades. Numbers of adult fish in these four populations are relatively stable, though juvenile survivorship is low. FWS is expected to completed a SSA by the end of 2017. Given the relative stability of four wild populations, the humpback chub may soon be downlisted. There is not a population of humpback chub in the San Juan River (CRR 2017).

The Upper Basin Program has struggled to establish self-sustaining wild populations of the bonytail chub. The species was almost gone from the wild at the start of the Program, and despite restocking, wild survivorship remains low. However, biologists found the fish spawning in the wild for the first time in 2015. FWS will not initiate a SSA until the bonytail can complete a lifecycle in the wild. There is not a population of bonytail in the San Juan River (CRR 2017).

Future of the Program

Congress authorized both Programs through 2023 with all four species expected to be recovered by that time. As of 2017, many expect that the pikeminnow and humback chub will be delisted by that deadline, and the razorback sucker may be downlisted. The bonytail is not expected to be recovered by the 2023 expiration date. While there is uncertainty about the future of the program after this point, it is possible that the Programs will be extended, refocused on the two non-recovered species, or dramatically changed (Chart, Flemming, MacDonnell, Pitts, Treese personal communication). It is also possible that there may be a discussion about whether it is realistic to recover the remaining marginal species (MacDonnell personal communication). Whatever the case, there will need to be ongoing programming for both the recovered and non-recovered fish to contril prediation from non-native species (Chart, Pitts personal communication). In the worst case scenario, the situation could devolve into renewal of litigation and a ban on new water projects (Flemming personal communication).

Success of Upper Colorado River Endangered Fish Recovery and San Juan River Basin Recovery Implementation Programs

Negotiation

The initial negotiations establishing each Program proved remarkably successful in adopting non-zero sum approaches to create value and build consensus. Both processes included the major relevant stakeholders whose interests aligned, encouraging the parties to work together towards a common purpose. The threat of ESA litigation and the failure of past lawsuits opposing the Act incentivized water users to develop an alternative approach. Government agencies were also interested in developing an approach that would allow continued development of the region’s water resources and reduce controversy around the ESA while still upholding the intent of the Act. Environmental organizations knew that this process presented an opportunity to create a program to meaningfully recover the species through a well-funded cooperative approach. All recognized that cooperation would be better than confrontation (Chart, Flemming, MacDonnell, Pitts, Treese personal communication).

In addition, adopting a consensus approach to the negotiations and setting upfront groundrules that no party would lose their water rights, encouraged parties to participate by eliminating the threat of a disastrous outcome (Pitts, Treese personal communication). This also encouraged creativity and spurred the development of novel approaches to confronting the issue (Flemming and Pitts personal communication). Furthermore, the stakeholders, recognizing the importance of establishing the Programs, proved willing to compromise and work towards good, if not perfect, outcomes. Wyoming and Utah, the two parties that could have put up more resistance, had less at stake given their smaller portions of the watershed, and thus, they were more willing to come to an agreement. Finally, the full commitment of the water users’ representative, Tom Pitts, to the process proved crucial to pushing the project forward and reaching consensus (MacDonnell personal communication).

Implementation

Through various means, both Programs have fully engaged in the science, politics, and policies of the problem, treated water as a flexible resource with room for creative approaches, jointly developed on the ground facts, and managed the program adaptively as challenges have evolved.

One of the simplest reasons for the Programs’ success is that they have, while maintaining and increasing protected fish populations, vastly simplified the development process for thousands of water users in the Upper Basin. The Programs have allowed over 2,500 projects to be developed through their license without having to obtain project specific approval (Chart, Flemming, Treese personal communication).

Transparency has also proved a hallmark of both Programs with accessible data, efforts made to inform water users and local stakeholders about the Programs, and exchange of information among the parties (Pitts personal communication). Furthermore, both Programs have made extensive efforts to engage local stakeholders, including game fishers and local water users, to involve them, share the benefits of the program, and encourage positive involvement (e.g. by only stocking certain species of game fish) (Chart and Flemming personal communication). Along with this, the Programs have provided substantial funding for on the ground recovery efforts and capital projects, showing local stakeholders that they “put their money where their mouth is” (Chart personal communication). These and related efforts have helped create substantial grassroots support for the Programs that has translated into bipartisan political support (Chart and Pitts personal communication).

In addition, the Programs have conducted extensive research to better understand the life cycles of the protected fish. This research drives a science-centered recovery approach with accompanying metrics (Chart, Pitts, MacDonnell, Treese personal communication). Furthermore, the Programs have “learned by doing” and used the evolving science to adopt their recovery approaches to better confront shifting challenges (Treese personal communication).

Finally, developing trust and relationships among the stakeholders, and having the time to do so, has proven critical to the success of the Programs. Trust has allowed the parties to jointly overcome obstacles, maintain political support and funding, and work towards creative solutions (Chart, Flemming, MacDonnell, Pitts, Treese personal communication). This goodwill has even allowed the Upper Basin Program to alter Colorado water law in ways that normally would not be possible through agreement among the state, environmentalists, and water users (MacDonnell personal communication). Tom Chart recalls, “I can remember stakeholder from Wyoming who couldn’t open up his mind to take a chance… as time went on, we ended up giving him a recovery champion award. This guy just got it. He’s one of the strongest advocates for this Program we will ever have. People have changed from fighting to trust.”

Future Challenges

Moving forward, developing a productive, ongoing approach past the 2023 program deadline presents the largest challenge to both Programs. Any new program will require funding to support ongoing efforts to control nonnatives and necessitate collaboration with local sports fishermen to prevent the further introduction and spread of nonnatives through water bodies (Chart, Flemming, MacDonnell, Pitts, Treese personal communication). There is a potential for catastrophe if the parties resort to “putting hard lines in the sand” However, the personalities at the table and the trust developed among them will be key to ensuring the Programs’ continued success past 2030 (Flemming personal communication).

Issues and Stakeholders

Conflict between maintaining water flows and habitat for legally protected endangered fish and water users with legal rights to water consumption in the Upper Colorado Basin

NSPD: Water Quantity, Water Quality, Ecosystems
Stakeholder Types: Federated state/territorial/provincial government, Sovereign state/national/federal government, Non-legislative governmental agency, Environmental interest, Industry/Corporate Interest

Water users want to maintain their legal rights to the Colorado and San Juan Rivers’ water resources. At the same time, the federal Endangered Species Act, supported by environmental groups, mandates that four protected species within the rivers have adequate water flows and quality and protected habitat.

Stakeholders:

Colorado
Wyoming
Utah
New Mexico
The U.S. Department of the Interior
The Western Area Power Administration
Jicarilla Apache Nation
The Southern Ute Tribe
The Ute Mountain Ute
The Navajo Nation
The U.S. Bureau of Reclamation
The U.S. Bureau of Land Management
The Nature Conservancy
The U.S. Fish and Wildlife Service
Upper Basin Water users and associations

Analysis, Synthesis, and Insight

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Key Questions

Future analysis

Future analysis could compare the Upper Colorado River Endangered Fish Recovery and San Juan River Basin Recovery Implementation Programs with the Lower Colorado River Multi-Species Conservation Program. While both Upper Basin Programs have achieved relative recovery and substantial water project success, the Lower Basin Program, which is larger in scope and receives substantially more funding has struggled to achieve similar results. (Larry MacDonnell personal communication). Future Aquapedia cases could explore the differential successes in recovering species in the Upper and Lower Basins as well as the causal factors.

Integration across Sectors: How can consultation and cooperation among stakeholders and development partners be better facilitated/managed/fostered?

This case demonstrates how the right negotiation conditions, transparency, time to develop trust, and other factors foster cooperation.

Transboundary Water Issues: What considerations can be given to incorporating collaborative adaptive management (CAM)? What efforts have the parties made to review and adjust a solution or decision over time in light of changing conditions?

The parties have changed the primary focus of the Programs over time as the needs and obstacles have evolved. At first, the Programs focused on achieving certain flow regimes and developing habitat for the protected species, and as these problems have been addressed, the Programs have shifted their focus to control of nonnative species, the largest current threat.

Transboundary Water Issues: How can packages or options that link issues creatively or build on possible technology innovations be employed to create non-zero sum choices within negotiations that include water resources?

A pivotal moment in this case occurred when water users changed their focus from protecting their water rights to working to recover the endangered fishes. This turn allowed them to continue to use their legal water allocations while working towards the delisting of the species.

Transboundary Water Issues: How can mutual trust amongst riparians be nurtured? What actions erode that trust?

This case shows that time, transparency, and jointly developing science can developed trust among involved parties.

Tagged with: Colorado River San Juan River Colorado River Upper Basin Endangered Species Species Recovery

References

2016 - 2017 Highlights: Upper Colorado Endangered Fish Program and San Juan River Basin Recovery Implementation Program(Issue brief). (2017). Retrieved from http://www.coloradoriverrecovery.org/general-information/general-publications/briefingbook/2017-BriefingBook.pdf

106–392, 106th Cong. (2000) (enacted).

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Difference between revisions of "The Upper Colorado River Endangered Fish Recovery and San Juan River Basin Recovery Implementation Programs"