Secretary Gale Norton
Department of the Interior
Interior Building
1849 C Street, NW
Washington, D.C. 20240
Dear Secretary Norton:
The Endangered Species Act in Section 2(c)(2) declares that it is "...the policy of Congress that
Federal agencies shall cooperate with State and local agencies to resolve water resource issues in
concert with conservation of endangered species." State and local agencies are an important
component of "resolving water resource issues in concert with conservation of endangered species."
Senate Report No. 97-418 states, "The policy statement contained in [the 1982] amendment [to the
ESA] recognizes that most of the potential conflicts between species conservation and water resource
development can be avoided through close cooperation between local, State and Federal authorities."
The Western States Water Council has served as a forum for implementing that policy by considering
the impact of water use on endangered species, and the impact of the Endangered Species Act on water
uses and water rights. We appreciate your efforts and those of this Administration to address these
issues. The breadth and scope of the problem and related issues and conflicts over water use and
endangered species continue to grow, as does the West.
We strongly support legislative changes suggested in the past by the Western Governors' Association,
and consistent with the Governors' Enlibra Doctrine. However, until Congress reaches some
consensus and acts to improve upon shortcomings in the law, administrative changes, particularly those
involving state and local agencies, offer the best way to improve implementation of the Act for the
benefit of both endangered and threatened species and people.
Over the past seven years, the Western States Water Council has held a number of symposia and
workshops as forums for a discussion among various stakeholder of ways to improve water
management to protect or benefit endangered species in the West. A number of recurring themes were
evident and suggest opportunities for moving forward, on a case-by-case basis, to address issues arising
in every major river basin in the West. We offer the following suggestions for the Administration's
consideration.
1. Greater use should be made of authorities under ESA Section 5, which envisions federal appropriations
for the acquisition and management of the lands and waters needed by endangered species, not the
regulatory taking of private property rights. Any acquisition of water rights for endangered species
should be on a willing seller/lessor basis, in full compliance with state laws, and the rights should be
held by an appropriate public agency as determined by the state. States are using a variety of tools to
ensure water is available including water banks, temporary transfers, dry-year leasing, instream flow
dedications, and other means consistent with state water law. Market-based mechanisms have been and
can successfully be used to move water from one purpose to another, with appropriate consideration of
third-party impacts consistent with state water law. The use of such opportunities should be promoted
in a more structured manner. We invite you to participate in a dialogue leading to
memoranda-of-agreement and/or cooperative agreements under Section 6 of the ESA with state
agencies outlining the basic principles for securing water for endangered species purposes and
providing funding assistance for appropriate state administrative expenses to ensure the secured water is
delivered for its intended purpose.
2. Only the minimum amount of water reasonably needed for endangered species, as determined on a
case-by-case basis using good data and sound science, should be acquired. The Secretary should
require a review of the sufficiency of the science upon which major ESA decisions are based to ensure
that they are justifiable. Without a transparent process, including peer-review and public comment, the
data and science upon which biological opinions and other ESA-related decisions are based will
continue to be suspect and subject to legal challenges. Moreover, appropriate alternative substitutes for
water, where available, should be considered. Water is only one of many requirements for healthy and
stable species populations, and may or may not be the limiting factor in some cases.
3. Development of recovery plans under ESA Section 4 and consultations conducted pursuant to ESA
Section 7 should be open to all persons and interests affected by the subject action(s) or any subsequent
implementation. Based on the successful case studies presented during the workshops we conducted,
inclusive processes clearly result in higher degrees of success and reduced conflict. Affected parties
are willing to contribute resources to recovery efforts if they have been involved in the recovery
planning and consultation processes.
4. With respect to aquatic species, state and local agencies should be invited to participate in candidate
conservation and safe harbor agreements and habitat conservation plans. Such mechanisms need to be
consistent with any state conservation and local watershed plans or planning processes.
5. Recovery efforts should be prioritized, in consultation with the states and other affected interests, to
focus limited resources where they are most effective. Before expanding critical habitat designations
beyond the known range of species to all potentially suitable habitat, or taking similar actions, federal
agencies should concentrate their efforts and resources on proven projects and programs for
recoverable domestic species where they are known to exist.
6. More money should be directed to species protection efforts to successfully implement these and other
recommended improvements, including providing economic incentives for those with water rights and
various types of water contracts. Without adequate federal funding, progress towards avoiding the
listing of species and the delisting of species will continue to be slow and conflicts will increase.
Priority should be given to opportunities to leverage federal appropriations with state spending and
other non-federal contributions.
7. The ESA should be interpreted as not requiring consultation under Section 7 of the effect of federal
agency actions on listed species outside the United States. Federal agencies are not authorized to take
actions to protect species in foreign countries. The efforts of federal agencies to recover species in
other countries are constrained by the actions and commitments of those countries. Furthermore, the
resources of the United States should be reserved and dedicated to recovery efforts for listed species in
the United States.
We applaud past administrative efforts to improve implementation of the Endangered Species Act and
hope you will carefully consider the above suggestions. We welcome your experience and this
Administration's commitment to finding workable solutions to conflicts between development and
protection of our natural resources, particularly our water resources. We urge you to look to the states
as indispensable partners in your endeavors. Without the support of state water managers and water
right and contract holders, efforts to successfully meet the long-term water needs of endangered and
threatened species will be difficult, if not impossible, to accomplish.
We ask for an open dialogue between state water managers and federal officials - together with local
water users and managers, fish and wildlife managers, environmental interests, and other stakeholders -
to establish a long-term process, based on Enlibra Principles, for successfully addressing water
resource and endangered species issues. We look forward to your response.
Sincerely,
Karl J. Dreher
Chairman
Western States Water Council
cc: Western Governors' Association
Ann Klee, Counselor to the Secretary, DOI