Restoring the Rio Grande: a case study in environmental federalism.

I. INTRODUCTION

Watershed management(1) has been endorsed by academics and policy makers as a preferable alternative to top down decision making. A recent article succinctly captured the tenets of this paradigm:

Many commentators have agreed that unless overriding national interests

dictate otherwise, watershed management should be a flexible, responsive,

"bottom-up" consensus-building process rather than a universal, standardized,

"top-down" product. The watershed management process should stress

negotiation and consent rather than command-and-control regulation. Planning

should be participatory and proceed from the bottom-up. Management should be

accomplished from the inside out rather than from the "outside in." That is,

existing institutions should be used wherever possible in fashioning

solutions. Finally, each planning unit, whether watershed or otherwise, has

a unique set of problems requiring a different level and intensity of

management; resources should be directed to priority areas and institutional

solutions should be individually tailored.(2)

Local involvement and control of a watershed is presented by its proponents as a more lasting basis upon which to bring about sustainability than relying upon mandates from a far-away government. The new paradigm that it represents has been proposed as an alternative to federal decision making in a diverse number of settings, ranging from the management of rivers to grazing decisions on federal lands.(3) Successful examples of participatory, consensus based planning reinforce the impression that resources can be equally protected, if not better protected, through local initiatives than through top-down federal mandates.(4) Some, but not all, environmental groups have joined in this widespread movement.(5)

It is harder to find proponents of the "old" paradigm, but the paradigm is very much with us, manifested in the dictates of federal laws addressing environmental protection and in the federal role in natural resources management. The revolution in federal-stale roles that occurred in the early 1970s saw Congress establish a federal floor for many types of pollution. This was accompanied by the creation of a federal agency to regulate industries, with federal administration displaced only when a state agreed to do no less than the federal agency would have done.(6) States and interested parties can play a role in decisions under national environmental programs through avenues such as rulemaking proceedings, citizen suits, and permit program participation, but national mandates provide an unyielding parameter for federal agency action. On most western rivers the Clean Water Act(7) and the Endangered Species Act(8) loom as the dominating representatives of federally imposed environmental mandates.

The relationship of federal authorities to local interests in the management of federal resources and facilities is less easily characterized than the federal administration of environmental mandates. Federal agencies play a dominant role in the control of many western rivers, stemming from the ownership of federal facilities, such as dams (for power, irrigation storage, or flood control purposes), the ownership of federal lands, the funding of flood control structures, and similar purposes. Federally owned resource agencies, such as the Bureau of Reclamation and the U. S. Army Corps of Engineers, have more flexibility in management decisions than in administration of environmental regulatory schemes, but the decision making structure often requires that crucial decisions must be made, or at least approved, at a national level Most significantly, budgetary decisions--the ultimate control on an agency's actions--are made at a national level, by both the agency head and, ultimately, Congress.

The ongoing debate in Congress over environmental regulations and federal natural resource agencies is, in large part, a debate over the locus of control over natural resources. In part, this debate rests on a belief that there has been an enormous maturation on the part of state governments and that state governments are now able to assume a role in protecting the environment that they had failed to perform prior to the 1970s.(9)

The limitations of the old paradigm are well illustrated by the management of the Rio Grande, but the promise of the new is yet unrealized. The Rio Grande is a river under tremendous stress. It received national notoriety in 1973 when American Rivers, a national advocacy organization, chose it to head their list of most endangered rivers in the United States.(10) Despite the environmental, cultural, and historical importance of this great river, efforts to protect and restore it pale next to those directed at watersheds in several other regions in the United States, such as the Pacific Northwest and the San Francisco Bay Delta. This Article considers what factors have affected the success of local initiatives to restore the Rio Grande and the implications of these factors for the new paradigm and the emerging tenets of environmental federalism. The "Bosque Initiative," a recent effort to protect and restore the Rio Grande Bosque, is the case study that provides a focus for this Article.

Most of the supporters of the old and new paradigms would argue for more complexity in how the paradigms are presented. The proponents of the new paradigm often assume that federal environmental and natural resource mandates would remain essentially as they are, with the appeal made that federal managers use existing discretion to participate and cooperate with bottom-up planning initiatives. This discretion is harder to procure in pollution laws and regulations, but more readily available to federal managers from agencies such as the Bureau of Reclamation. Conversely, those who espouse the old paradigm do so with an implicit acknowledgment that local participation is, at the very least, necessary to achieve management goals, and, more expansively, offers greater promise of creating sustainable relationships between communities and ecosystems.

Despite the real world points of agreement between these two schools, the preference of many to return environmental and natural resource decision making to the state signifies a deference to state capacities and values, with less emphasis on maintaining a federal floor.(11) In evaluating the consequences of this movement for the fate of natural resources in the western United States, an appraisal of the likelihood that state and local actors will successfully assume the management of difficult resource problems becomes highly probative. The Rio Grande desperately needs the concerted attention of citizen activists, tribal governments, irrigation districts, and state and federal agencies, but the present disorganization and lack of resources available to the River and its supporters cautions against assuming that locally driven watershed initiatives will spring up, or that they will be able to rectify many of the problems that plague the River.

Four major factors are hypothesized as having had a critical bearing on the absence of watershed success in New Mexico: 1) the lack of a clearly defined and understandable crisis, 2) the lack of a federal or state mandate to drive change, 3) the lack of a strong grassroots movement with a stake in protecting the resource, and 4) the lack of funding to support these efforts. On the other hand, the threat to an endangered species from a year of drought did lead to a largely successful ad hoc effort to coordinate river operations to protect the species. The Rio Grande experience cautions against the assumption that successful watershed management will be instituted across the West and highlights the important role played by the Endangered Species Act in bringing about cooperation among river managers.

II. THE BOSQUE INITIATIVE

A. The Middle Rio Grande

In the last five years New Mexico has experienced a flowering of initiatives directed at water issues and the Rio Grande, where there were almost none before.(12) To understand these initiatives, a brief introduction to the geography and natural characteristics of the region is helpful.(13)

The Rio Grande/Rio Bravo river system is 1,890 miles long, draining a 355,500 square mile re,on from its headwaters in Colorado to its terminus in the Guff of Mexico. Its character undergoes a metamorphosis along its length. Even within New Mexico, the northern stretch is scenic and often wild, with people using it for trout fishing, boating, and watering bucolic agricultural villages. In southern New Mexico, the River is confined to a narrow channel and is heavily affected by agriculture. As the border between two countries in El Paso/Juarez, it is little more than an urban creek, highly polluted within the urban boundaries.(14)

The Bosque Initiative was concerned with the middle Rio Grande, which denotes a stretch of the River that runs from Cochiti Dam in north-central New Mexico to Elephant Butte Dam near Truth or Consequences, New Mexico. The River appears as a wide, adobe-colored channel, lined with shady tree-covered banks. Just past the riparian corridor sit fields and homes, roadways, and industrial development; what greenery exists is maintained by the ditches that border the River. This area is home to about forty percent of New Mexico's population.

One of the most often repeated facts about western water, but perhaps hardest to comprehend, is the allocation in uses to which water is put. In New Mexico, agriculture uses about eighty-seven percent of all water that is diverted.(15) The state's economy has changed since the time when agriculture was king. In the region from Santa Fe to El Paso that was examined in a recent study, only two percent of employment was in agriculture, and those working in agriculture areas earned only about one percent of total income for the region.(16) The study focused on the disparity between where water is currently used and its highest value. In one of its most controversial assertions, the authors asserted that, "at the margin, the value of water used for irrigation is no greater than zero ...."(17)

The ecology of this area reflects great changes since the arrival of the European conquerors in New Mexico: "[t]he great diversity of landform, elevation, vegetation, and climate in New Mexico that has produced one of the world's most diversified fauna was likely reflected in a corresponding historical wealth of animal species in the Middle Rio Grande Valley."(18) Grizzly beam, gray wolves, and jaguars may have used the valley.(19) Coronado's expedition in 1540 found geese, cranes, and turkeys abundant.(20) The Rio Grande turkey has now been eliminated from the middle Rio Grande region, along with minks, grizzlies, gray wolves, and jaguars.(21)

As with most western rivers, this section of the Rio Grande is profoundly affected by human development. Drainage and irrigation ditches line the River. Groundwater pumping has affected the hydrologic connection between the River and the groundwater of adjacent areas, although the exact fashion in which this has happened is currently the subject of controversy.(22)

Human development, including irrigated agriculture and grazing, the introduction of new species of vegetation, and ongoing construction have transformed the Bosque. The effect of these changes on the fish of the River is especially dramatic, with half of the original fish fauna having been lost:(23)

By the end of the 19th century many of the larger big river

fishes such as the longnose gar, shovelnose sturgeon, gray

redhorse, blue sucker, and freshwater drum had disappeared

from the Middle Rio Grande. The American eel was probably

eliminated from the middle valley by the construction of Elephant

Butte Dam in 1916 which blocked its migration (recent escapees

from rearing ponds in Colorado, however, have resulted

in the capture of this species in the Rio Grande). More recently,

an increasing number of fishes has [sic] been eliminated

from or their populations appreciably reduced in certain river

segments. Thirty-six to sixty-three percent of the native fish

species have been extirpated from the Middle Rio Grande .... A

combination of factors (both past and current) are likely

responsible for the decline or extinction of native fishes including

the depletion of river flows, reduction in water quality, sedimentation,

water resource development and management actions, and introduction of

nonnative fish through stocking or use of baitfish.(24)

The River is ecologically important to the area because of the aridity of the region, which receives about eight inches per year of annual rainfall, and because it supports unique flora and fauna.(25) Scientists have recorded its use by 227 species of birds.(26) The Bosque contains almost two dozen plant and animal species that are listed as "threatened" or "endangered" under federal or state law, as well as candidates for listing.(27)

The state's Water Quality Control Commission has determined that this stretch of the River fails to meet its designated uses, or in common parlance, that it is polluted. These designated uses include irrigation, limited warm water fishery, livestock watering, wildlife habitat, secondary contact recreation, and wildlife watering.(28) The pollutants found in this stretch include heavy metals, pesticides, sediment, chlorine, and ammonia.(29)

Water quality 'm the River is affected by a host of activities, including nonpoint source pollution from agricultural operations, municipal point sources, hydromodification, storm runoff, and other familiar causes.(30) It is heavily influenced by Albuquerque's sewage outflow. At sixty million gallons per day, or sixty-five thousand acre feet per year, this sewage treatment plant is a major tributary to the river. Other municipal sewage treatment plants also discharge to the River. While these discharges contribute pollution to the River, they also contribute water. Groundwater, not surface water, is the source of water for most municipalities, so that the sewage effluent increases flows while adding pollution.

The middle Rio Grande looks muddy, or put more precisely, it contains high levels of suspended solids. While sedimentation is exacerbated by human activities on land, it is also a result of the region's soils and geology.(31) Several tributaries in this stretch contribute enormous quantities of sediment. The Rio Puerco, which is more like a muddy trough than a river, adds about 2,600,000 tons per year to the River.(32) Sedimentation has actually been decreasing; on one notorious day in August of 1957, 2,240,000 tons of sediment were discharged from the Rio Puerco into the Rio Grande.(33)

Other than sewage treatment works, most of the anthropogenic sources of pollution in the River are unregulated. The Clean Water Act's exemption for irrigation return flows(34) is utilized by the drainage ditches of the conservancy district. Nonpoint source pollution from irrigated agriculture is not regulated by the state or federal government, nor is grazing. Stormwater discharges have recently been subjected to EPA permitting, but the City's permit does not require more than monitoring the quality of the discharge.

The River is not used as a direct source of public drinking water within this stretch, although it recharges shallow drinking water wells and is consumed by those who swim in it. It is also directly consumed during religious ceremonies by members of one pueblo, which has led to litigation over attempts to give greater protection to the River's water quality.(35) It is used by recreationists, although this use is infrequent. One exception is a raucous annual canoe race through the City of Albuquerque. Many people fish along its banks and in the irrigation drains that run throughout the valley.

The Rio Grande has been significant in New Mexico's culture and history. Fourteen pueblos are located on its banks and along its tributaries. Both colonial Spanish settlements and subsequent waves of settlement have occurred along it, from Albuquerque to Las Cruces, New Mexico.

The hydrology of the middle Rio Grande, like that of most western rivers, is the product of nature as modified by the actions of powerful institutions. These institutions deserve attention.(36) The U.S. Army Corps of Engineers has built flood and sediment control dams and reservoirs. The Bureau of Reclamation manages reservoirs and a channel modification program.(37) The Middle Rio Grande Conservancy District operates drains and delivers water through canals to irrigators,(38) Flood waters from the metropolitan area are discharged through the conveyances of the Albuquerque Metropolitan Arroyo Flood Control Authority.

The middle Rio Grande is not the most altered stretch of the River. The status of the River in other stretches colors the region's understanding of its place in the environment and presents one picture of what its future may be. The River's headwaters in Colorado support the predominantly agricultural San Luis Valley. The Valley's agricultural use of water led to conflict with New Mexico over compact deliveries. The conflicts were partially addressed by the federally financed construction of the Closed Basin project, a $100 million Bureau of Reclamation project that pumps groundwater for delivery to the Rio Grande, thereby enabling Colorado irrigators' use of surface water supplies.(39) At the border between Colorado and New Mexico, and for the next 100 miles, the River is relatively pristine and long stretches are protected as Wild and Scenic.(40) Nonetheless, flows in the summer have been reduced to a trickle at the Colorado border, and there is no instream flow protection at that stretch. Further, the Bureau of Land Management, the federal agency charged with administration of the Wild and Scenic segments, has chosen not to perform any studies of instream flow needs in that stretch.(41) The consequences of New Mexico's lack of instream flow protection, the political timidity of federal agencies in confronting the water needs of ecosystems, and the difficulty of finding proponents for remote regions, are exhibited in this stretch.

Flows in the Rio Grande within New Mexico are augmented by an unlikely source: a transbasin diversion from the Colorado River. The San Juan-Chama project was part of the complex dealmaking that characterized the reclamation era in the West.(42) The new flows are the magic bullet that will rescue the thirsty cities of Taos, Santa Fe, Albuquerque, and Las Cruces from their reliance on mined groundwater. This water provides flexibility that the system otherwise would lack, although shifts from irrigation are likely in the future.

Below Elephant Butte Reservoir, the southern most end of the middle Rio Grande, the River is distributed through agricultural channels and is itself channelized. Flows from the Reservoir are dedicated to Mexico, the Elephant Butte Irrigation District, and the El Paso County Water Improvement District.(43) Las Cruces, in southern New Mexico; El Paso, Texas; and Ciudad Juarez, Mexico are experiencing profound population growth in what is becoming a single region.(44)

The water demands of Texas and Mexico have reached New Mexico, and litigation(45) has been replaced by a new commission that contains representatives from both states.(46) Below El Paso, flows are heavily affected by agriculture.(47)

The middle Rio Grande, then, is relatively well protected in comparison with southern stretches of the River. One consequence is that the irony often complained of by water users is visible here: the region that did not completely extirpate its native species is the one that bears the costs of protecting them. The River does not provide those who live in the middle section a positive vision of what the River might be from an environmental or ecological perspective. It would reinforce a utilitarian perspective, in which the River's waters exist to be used and reused.

B. The Bosque Initiative

The Bosque Initiative had an auspicious birth. It was the creation of Senator Pete Domenici (R-N.M.), who was concerned about the health of the Bosque, a cottonwood forest that borders the Rio Grande. The Bosque is a defining feature of Albuquerque and the entire middle Rio Grande region. Senator Domenici appointed nine citizens to form a committee, choosing as chair William deBuys. Mr. deBuys is a Santa Fe writer, who has written two books that reveal a clear understanding of New Mexico: a history of the Sangre de Cristo Mountain range and a chronicle of life in a northern New Mexico village.(48)

The Committee learned, in deBuys's words, that "the Middle Rio Grande has received more than seventy years of biological management but nearly all that management has been inadvertent and virtually all of it has had a negative effect on native ecosystems."(49) There was no consensus by those with whom the Committee met as to what a better management scheme would be, so the Committee turned to Senator Domenici to get the support of federal agencies and Congressional funding for the creation of a biological management plan.

The biological management plan was done under the guidance of a University of New Mexico faculty member, with the assistance of employees from federal agencies and numerous others. The plan succinctly explained why the Bosque is imperiled:

New Mexico's Rio Grande and its riparian forest, the "bosque,"

were for centuries central to the region's culture and

development. Now, despite their importance in the past, the

river and the bosque are being impacted by the effects of

management and development accommodating needs of the region's

growing human population. As a result, some of the last

great cottonwood stands, trees that are the integral components

of native biological communities, are now confined to the

banks of a highly controlled and physically altered river. River

dynamics on which the native communities depend have been changed so

much that these communities are no longer able to sustain

themselves. Compounding the problem are introduced species such

as salt cedar and Russian olive that are steadily replacing the

aging native trees. Other factors, including a managed water

table level in the floodplain, a reduced amount of wetlands,

and a fragmented bosque, have also disrupted the original dynamics

of the river and the riparian zone. Clearly the ecosystem is

stressed.(50)

The report paints a dire picture of the future of the Bosque if no changes in management take place. Water quality would decline, affecting fish abundance. Continued extirpations of native fish would be expected.

Fragmentation of the riparian zone by residential development, roads, bridges, and power lines would combine with native plant species' mortality and wetland reduction to lower the density, biomass, and productivity of riparian plant and animal communities. Further reduction of wetlands would cause the continued decline of certain species of plants and animals.(51)

Wetlands are highlighted in the report. They are an important and rare part of New Mexico's ecology, but they

have experienced the greatest decline of any floodplain plant

community at least since the early 1900s. Wetlands support high

numbers of individuals of a particular species, e.g., red-winged

blackbirds, and the greatest number of species dependent on any

one habitat type. In addition, this declining habitat supports

the greatest number of rare and relict vertebrate species in the

Middle Rio Grande Valley including several species of rare

plants, leopard frogs, whitefaced ibis, black hawks, New Mexico

jumping mice, and tawny-bellied cotton rats.(52)

Wetlands are threatened as the channel degrades, reducing overbank flooding and groundwater.(53) Groundwater pumping may also affect wetlands, as the riparian zone is "dried." The team noted that "[t]his drying of the riparian zone could affect marshes, wet meadows, areas with lush herbaceous understory, and even the cottonwoods and willows."(54) The rare cottonwood forest is shrinking as it is replaced with other trees. The loss of the cottonwoods will change the composition of the Bosque fauna because some species depend on cottonwoods for their functioning,(55)

The biological team possessed an ambitious vision for the Bosque:

The team foresees the boundaries of the Middle Rio Grande Bosque as not

only being protected from development but also expanded in the future.

In addition to protection, the restoration and maintenance of ecosystem

processes are fundamental to this biological management plan. We envision

a perennial Rio Grande whose flows mimic the natural hydrograph to the

maximum extent possible, and a river channel that is permitted maximum

freedom within the floodway. The attainment of these basic conditions

will facilitate the achievement of all other recommendations to enhance

the biological quality and ecosystem integrity of the bosque.(56)

The recommendations to achieve this vision are equally ambitious. The first three are directed at the hydrology of the River and attempt to reproduce the natural hydrograph to allow the River to partially recreate its original fluvial processes and restore earlier groundwater and surface water dynamics. The enhancement of aquatic communities requires improvement in aquatic habitat, in surface water quality, and in management of native and nonnative fish. The terrestrial ecosystem has been the most affected by human management and requires the reversal of current trends. The recommendation that additional fragmentation of the Bosque be avoided poses a serious challenge to the actions of governmental entities.(57) The team also recommended monitoring and research into scientific issues, a continuing review of the plan, and integration between management of the Bosque and related areas.(58)

In addition to the work of the biological team, the Committee also had meetings with members of the public and with tribal governments. It found that New Mexicans valued the Bosque for a variety of purposes, including "just knowing it is there." Citizens felt that "the River and its corridor should [not] be managed just for flood control, drainage and irrigation. While these activities are of utmost importance, they also want a healthy, diverse ecosystem, clean water, and recreational activities."(59)

The Committee's work led to passage of a memorial in the state legislature urging the Governor and legislative leadership to create a second task force, the Rio Grande Bosque Task Force.(60) The task force did not receive direct state funding, but it did raise $18,000 from a private donor and the National Fish and Wildlife Foundation. It took testimony and met with governmental entities, tribal officials, and representatives of the Bureau of Indian Affairs.(61)

The task force concluded that "[t]he major problem confronting the management of a healthy Bosque was the overlapping and poorly defined responsibilities of several federal, state, county and local agencies."(62) The solution it proposed to this problem was a Rio Grande Bosque Management Council, with representation from municipal, county, pueblo, regional, state, and federal agencies. The only non-governmental representative would have been one private landowner. Despite its title, the management council was proposed as a coordinating entity, lacking substantive management powers over the Bosque or other entities. It was evidently envisioned as having persuasive powers because it was to adopt "guiding principles" that would be used by responsible agencies in the management of the Bosque.(63)

The task force had legislation introduced in accordance with this proposal. It also contained a small appropriation to support the council's operations.(64) To everyone's surprise, the new Governor, Gary E. Johnson, vetoed the legislation.(65) The reason given for the veto was the large number of agencies involved in the new council.(66) Ironically, the task force had proposed a large council so that it would reflect the many entities with direct responsibilities for the Bosque's management.

In 1997, two legislators again introduced legislation that would have created a management council.(67) The legislation passed the legislature, only to be vetoed once more by the Governor.(68)

There is no mandate from the state legislature to continue this effort. It is unclear how the initiative will be maintained. Federal agency officials and others who participated in the process are continuing to meet as part of a new group, the Bosque Improvement Group. The U.S. Fish and Wildlife Service has received appropriations for several years to support activities in the Bosque. This funding has supported small projects that contribute to a scientific understanding of the Bosque or provide habitat enhancement or education about it. Members of the Bosque Improvement Group have expressed interest in implementing those recommendations that can be achieved through their actions. Senator Domenici's interest in the Bosque is presumably unabated, as is that of many who participated in the Initiative. The interest sparked by this initiative may at some time in the future result in restoration of the Rio Grande, but it is fair to say that significant physical changes in the Bosque's management as a result of this initiative cannot now be forecast. With the failure of the legislative measure, there is no council to coordinate and review actions that affect the Bosque. Even federal agencies that were part of the Initiative are free to disregard its recommendation.

III. THE CHALLENGE POSED BY THE BOSQUE INITIATIVE TO THE INSTITUTIONS THAT GOVERN THE RIVER

The institutional challenge of restoring the Rio Grande and its Bosque is formidable. The physical task is complex but might be summarized as protecting the riparian corridor and maintaining adequate water (both surface and groundwater) to allow ecological functioning. These goals implicate the management and control of land and water by different levels of government. To understand the magnitude of the institutional challenge, it is necessary to describe the state and some of the key players in the River's management.

New Mexico is a poor state, usually found in the bottom five states in per capita income.(69) Its population is growing rapidly, among the ten fastest growing states as a percentage of existing population.(70) With this increased population come both new industrial and recreational users of the state's waters.

Land along the riparian corridor lies within four counties and is owned and managed by federal, tribal, state, and substate governments, and private interests. Key federal agencies include the Bureau of Reclamation, the U.S. Army Corps of Engineers, and the U.S. Fish and Wildlife Service. Cochiti, Santo Domingo, San Felipe, Santa Ana, Sandia, and Isleta Pueblos are located along this stretch of the Rio Grande.(71)

The greatest threat to the Rio Grande is the most obscure one, clouded by the uncertainty of predicting how Albuquerque will respond to a newly discovered crisis. For years, Albuquerque was said to sit on an "ocean" of groundwater, with an unlimited potential for economic and population growth based on this water. Groundwater is the source of the City's water for all municipal and industrial uses. The release of a technical report by the U.S. Geological Survey questioning the capacity of the aquifer(72) has resulted in a variety of plans to further characterize it. Informal estimates are that use of the aquifer can only be sustained for twenty to thirty years if current usage patterns are unchanged and population growth continues.

Albuquerque's relationship with its aquifer is paralleled by that of other western cities, where groundwater mining provides good quality, abundant water, free except for the costs of pumping it. As mining is slowed, whether through depletion of the usable aquifer or through legal restraints, surface waters are once again being pursued. Whether the replacement use of surface waters will have negative consequences for the River cannot be definitively predicted because the City's response is still undergoing review. However, the newly accepted findings that groundwater is not endless seem likely to have adverse implications for surface waters. For example, one alternative under consideration is to recycle the City's wastewater effluent by recharging the aquifer with it. This would decrease flows in the River, especially during the summer months when irrigation withdrawals greatly reduce flows.(73) The proposal that is most favored by the City involves removing water from the Rio Grande and treating it for drinking water. The City has fights to water from the San Juan-Chama diversion project that is now stored in a reservoir. This would decrease flows in the River, insofar as the City proposes to remove additional river water for nonconsumptive uses(74) and as San Juan-Chama water is now available for other downstream purposes. Those who use water for irrigation in the middle Rio Grande valley also will come under pressure to transfer this water to higher-value uses. The habitat provided as an incidental benefit of farming could be lost as these transfers occur.

None of these options necessarily must be deleterious to the ecological functions of the River and the riparian environment that is the topic of this case study, but the lack of protection in the state's water code(75)--and in the prevailing ethic of water management(76)--for instream flows makes a negative impact more likely. No institution in the state is mandated to preserve instream flows for environmental purposes.(77) In this posture, the welfare of the River itself is only incidental to the purposes pursued by the relevant institutions.

How Albuquerque manages its relationship with the River and the Bosque will provide the strongest evidence of whether the current population of this region can exist in a sustainable fashion with the natural resources of the basin. The overarching question that strikes anyone who has any experience with New Mexico is: Will there be water available to sustain the predicted human population? This single factor is often expressed as a rhetorical question in debates over growth: How much more growth can this area sustain?

Using water availability as the criterion for making decisions about sustainability is more difficult than one might imagine. Environmental planners often employ McHarg's mapping strategies(78) to assess resources of an area and what uses they can support. By that measure, one would presumably look at groundwater resources and reliable surface water, calculate how many years an aquifer will last, and make population decisions with that information. This is not how growth has been managed in the West, and there is a credible argument that it is simply academic wistfulness to think that it should be otherwise. In Albuquerque, a new city plan projects 351,000 additional people on the City's west mesa. There is virtually no useable water there, either surface or groundwater. While this intensive human development is peradventure unsustainable, imported water resources will presumably allow it to proceed, just as it has in Los Angeles and other western cities. These impediments require only the continuing ingenuity of the City's leaders and engineers.(79) Taken as an engineering question, then, there is no limit to how many people the region can support, as long as the region can meet the costs of alternative water supplies. "Sustainability" has yet to be proven as a meaningful guide to the hardest question: How should groundwater be used when it is irreplaceable?

For the survival of the Bosque, it is imperative that the City and adjoining jurisdictions somehow arrive at an accommodation between a booming urban region and the preservation of the flows of the River. Even though the questions of how large human populations will survive in this desert and semi-desert state provide ample material for exploration, there is no inherent reason that the River cannot be protected in the more immediate horizon. This goal of preserving some semblance of the original ecology and hydrology of the River has not been embraced by policymakers.

IV. WHAT MIGHT HAVE AFFECTED NEW MEXICO'S RESTORATION EFFORTS?

Despite the interest of many citizens and organizations, New Mexico has far to go before it can be said that the character of its principal river will be preserved into the future. There is no functioning watershed planning council, nor any major state or federal projects aimed at the health of the watershed. There are four interrelated factors that might account for New Mexico's relative lack of progress.

A. The Perception of a Crisis

The condition of the Rio Grande within New Mexico does not present the sort of clear crisis that propels change.(80) The environmental changes in it are slow and incremental, some of the threats are merely nascent, a complicated legal system restricts access to decision-making, and the most important policies governing water allocation were established long ago.

The Bosque Initiative has been hindered because the deterioration of the Bosque has been slow and the effects are predominantly ecological. That is, the primary consequences of the environmental changes that have occurred in the middle Rio Grande fall upon the ecosystem; there are not any direct effects on the people in this region. The water in the Rio Grande is no longer directly consumed for drinking water (with the noteworthy exception of pueblo ceremonial use). Many western cities have lost free flowing rivers as they developed. In Phoenix, the Gila River, which once supported another cottonwood forest, is now mostly dry. The cultural aspects of society's relationship to the natural world are as diverse as the physical world, but far less understood. The restoration initiatives in the Pacific Northwest are deeply rooted in the cultural and economic importance attached to the salmon that once thrived in its rivers,(81) In contrast, there are no species of major economic importance the health of which is dependent on Bosque restoration,(82) This stretch of the River is not used much for recreation because it lacks rapids, boating access to the River is obscure, and water quality is often poor.

The lack of a setting or forum for concerns about the Rio Grande may be what has kept both agencies and interest groups from coalescing around one of the many important questions that affect the Rio Grande's management. There has been no lack of conferences or workshops addressing these issues, and they have been well attended. But, with a few exceptions, there have not been administrative or legislative fora in which the profile of these issues were raised by media or political attention.

Why have there been so few decision-making processes addressing the River? One reason is, as noted above, that many of the most important decisions affecting water allocation have already been made, long before today's activists were born. In contrast to logging or grazing on public lands, where land management decisions are periodically reviewed and subjected to public review through the National Environmental Policy Act (NEPA), who gets what water was decided on the Rio Grande long ago.(83) Instream flow levels in the River are an example of this because flows are affected by a plethora of historical actions. The River has been drastically altered by dams and irrigation works. The major uses of the River were established by the large irrigation districts on its length. The Rio Grande Compact of 1938 provides the overall framework for water deliveries. A citizen with an interest in supporting or increasing "instream flows" in the River would have no obvious forum for expressing that interest. Another reason is that the state lacks a "little NEPA," having abandoned it at the behest of Steve Reynolds, the former State Engineer.(84) A state environmental policy act might require a governmental agency to identify important proposals for action, publicize those decisions, and highlight the environmental consequences of its decisions. At present, even where decisions are made that could affect flows, the state engineer's office is under no obligation to consider those effects, nor to publicize its findings,(85) Further, the state engineer's office generally eschews pronouncements of public policy, and is viewed as a water administrator, not a water manager. With this stance, it is not surprising that the office brings forth very few legislative initiatives that would offer interest groups a target for involvement in the agency's operations. Beyond this, however, the mystique that has surrounded the water code has discouraged otherwise intrepid environmentalists from raising challenges to the operations of the water establishment. New Mexico's water buffaloes are usually able to graze undisturbed by environmentalists, although there have been a few lively confrontations over the years.(86)

Finally, the agency that has the most control over the Bosque, the Middle Rio Grande Conservancy District, has benefited from the obscurity that accompanies the environmental policy choices reflected in its actions. The District was founded in 1925, shortly after the state legislature passed the Conservancy Act of 1923.(87) The Rio Grande had begun to aggrade, with increased deposition of silt from upland practices causing a rising water table in the middle Rio Grande. Rising water tables made land unusable for agriculture. Additionally, periodic flooding stymied development in the flood plain.(88) The Conservancy District addressed both irrigation and flooding concerns through construction of dams, drainage and irrigation canals, and levees.(89) Later, the Bureau of Reclamation and the U.S. Army Corps of Engineers were to join the effort with major programs directed at flooding. The District remains linked to the Bureau of Reclamation as a result of that period.(90)

The role of the District in the 1990s is far more complex than its founders could have envisioned. The lands that had been primarily agriculture have now been transformed into valuable real estate. The irrigation and drainage canals have created a network of urban trails throughout the heart of Albuquerque, although the use is not sanctioned by the District. The baking heat of a southwest desert is cooled and softened by the trees and green vegetation that line the ditches. Traditional agriculture has declined,(91) but landowners enjoy cheap water from conservancy ditches for their turf lawns and gardens.(92) The District is wealthy in water, controlling approximately the total amount of water used by the City of Albuquerque's water consumers.

The District is arguably the major player in the institutional structure that controls the environmental fate of the middle Rio Grande. As the owner of immense water rights, it has agreed to flow releases to benefit recreation and has used its flows to dilute the City's effluent discharge. It manages much of the land that adjoins the River by setting policy on vehicle access, hunting, and other land use practices. It manages riparian vegetation along ditches through the use of herbicides and mechanical removal. It has emerged as an opponent of listing the Rio Grande silvery minnow as an endangered species. Nonetheless, the position of the District towards the initiative has evolved: initially, the District opposed the creation of a Bosque management council, with the District's representative to the Bosque Initiative Committee stating that "the District should be the one and only agency to manage and control the Bosque of the Middle Valley."(93) When the legislation was resubmitted to the legislature, the District supported it.(94)

While the District commissioners are presumably not unaware of the varied roles played by the Conservancy, land and water policies continue to be defined in terms of its historic role, with environmental consequences incidental to policy objectives. It is a truism of western water law that single purpose management is no longer viable, but environmentalists have yet to find their place at the table of Conservancy decisionmaking. The result is a lack of public participation in the environmental effects of District decisionmaking; at this time only the most sophisticated environmental groups are likely to see the potential for change in the District's operations. The lack of a meaningful forum in which the public and public interest groups can actually shape these policies has kept a "crisis" from arising; without an opportunity to challenge the status quo, the degradation of the Bosque will simply continue. Traditional western water managers' lack of responsiveness to environmental interests(95) has been well documented and the posture of the District and of the state's agencies is not unique.

It is difficult to distill a single cause for the relative apathy that surrounds the status quo on the middle Rio Grande. Institutions have not sought out the new interest groups, and the largest, most pertinent questions about the condition of the River are not neatly presented to the interested public. The absence of a readily describable crisis surely contributes to the slowness of change.

B. A Federal or State Mandate

A federal mandate can provide the pressure that leads to watershed management by forcing local actors to address environmental problems that would otherwise not require resolution. The federal mandate is seen as the crisis, rather than the underlying ecological crisis. It is the Endangered Species Act (ESA), not the prospect of a species becoming extinct, that is often identified as the driving force behind watershed planning. A federal mandate can thus give the necessary sharpness to an ongoing period of ecological decline.

The U.S. Fish and Wildlife Service recently listed as endangered a species which is found in the Rio Grande, the Rio Grande silvery minnow, although it did not establish critical habitat for the species.(96) This action was loudly denounced by the major players in water supply, and has the potential to leverage major changes in the management of the River. The drought of 1996 brought about unprecedented coordination between the U.S. Fish and Wildlife Service, the Bureau of Reclamation, the Middle Rio Grande Conservancy District, and other agencies to protect the species.

The role of the ESA in western water management is now legend. It has coalesced the new concerns for environmental balance in river management around powerful mandates for species protection, backed by federal expertise, funding, and, often, threats of dislocation of the status quo in the West's major river basins. Just a decade ago it would have been difficult to predict that federal agencies, operating for species protection, would have such a profound role on western rivers.(97)

In the Columbia River basin, the recovery of salmon has become as prominent a purpose as power generation, reversing the priorities of the last fifty years. This reversal would astound the creators of the impressive dams that awed an earlier generation.(98) Tribal fishing rights, severely impaired by the construction of power facilities, were a major factor in creating this pressure.(99) The Congress took one step to address the competing interests between fisheries and power by creating the Pacific Northwest Electric Power and Conservation Planning Council.(100) The Council is scrutinized for its faithfulness to all of these goals.(101) In this instance, recognition of the ecological crisis preceded the application of the ESA: petitions to list were made in 1990,(102) but the application of the ESA has had undeniable consequences in strengthening recovery advocates.(103)

In California's Bay-Delta region, the twin mandates of the ESA and the federal Clean Water Act have led to a ground breaking cooperative management effort between federal and state agencies and an ambitious restoration plan (the CALFED Bay-Delta Program).(104) In a short period of time, water management has been reoriented to place the restoration of ecosystems in equal position with serving the water demands of irrigators and municipalities. Even in a state with strong commitments to environmental protection, the pressure exerted by federal agencies through these two statutes has been crucial in bringing about these achievements.(105)

Both the Columbia and Sacramento-San Joaquin systems have been the focus of extensive scholarly and public attention.(106) The basins are different from the Rio Grande in ways that far transcend the role of the ESA. But, in both the Columbia and Sacramento-San Joaquin, the ESA has provided the impetus to institutional and scientific innovation, and both basin and watershed management is flourishing.

For the Rio Grande, it is too early to tell whether the continued survival of this species will require the types of fundamental changes in water use that have pushed other regions into new institutions, new initiatives, and new relationships between consumptive and instream uses. The listing of the silvery minnow has neither created a Northwest Power Planning Council nor a CALFED Bay-Delta Program. The physical needs of the minnow do not appear to require large commitments of water to the River, but rather that flows be maintained throughout the year: a requirement that conflicts with the traditional practice of diverting heavily during the irrigation season. The listing did, on the other hand, provide a mandate to keep water in stretches of the Rio Grande during a blistering summer. It also led to new relationships among the major water users; relationships that led to the identification of alternatives that the agencies agreed deserved research.(107) Finally, the political environment in which the Act is enforced makes a difference; the ESA has few vocal friends among New Mexico's decision makers at any level.

The programs of New Mexico's state government do not provide mandates for ecological restoration. New Mexico's environmental pollution programs are found mostly in a single agency, the New Mexico Environment Department.(108) These programs mirror those of EPA, with the exception of a groundwater protection program, the long-standing environmental sanitation programs, and a few other exceptions. Thus, the focus of state programs is pollution, and, as with federal programs, human health issues dominate these programs. While state agency personnel might well agree with the EPA Science Advisory Board(109) that protection of habitat and biodiversity should have a higher priority than many of the pollution programs that the agency administers, the funding of the agency is committed to providing required matches to the delegated federal programs. There are too few resources to allow the agency to pursue unfunded and unmandated program interests.

The other relevant state agency is the Energy, Minerals, and Natural Resources Department.(110) This department contains an unwieldy mixture of programs, but includes the Game and Fish Department, which has moved towards a greater involvement in habitat protection in recent years. Environmentalists heralded the creation of a Conservation Services Division, which represented a broadening of the Department's mission beyond species that are hunted or fished.(111) The division administers the state's Wildlife Conservation Act, which contains the state's endangered species protection and a recovery planning provision.(112)

Neither the legislative authorization nor the organizational culture of the State Engineer's Office and the Interstate Stream Commission provides a mandate for ecological protection. The regional water planning process has focused on water supply for communities, and it is unlikely that ecological restoration will emerge from these plans.(113) In sum, the Bosque Initiative appears to have been affected by the lack of federal and state laws that imposed enforceable environmental mandates.

C. The Relative Weakness of Citizen Activists

For a short time, I participated in meetings of attorneys who were representing environmental organizations in the Bay-Delta proceedings. They filled a conference room. In New Mexico, the citizen environmental movement is comparatively minute, as one would expect in a state with such a small population.(114) The emphasis by New Mexico groups was historically on wilderness protection, then air pollution, the now-traditional environmental pollution programs, and the manifestations of the nuclear fuel cycle (uranium mining and milling, waste disposal, and the Waste Isolation Pilot Project). Subdivisions, solid waste, mining, and threats to specific locations also have been addressed. Water quality has been a focus of activities through participation in standard setting, groundwater regulations and hearings, and monitoring of the state's Environment Department. Participation in decisions affecting water allocation and water supply has been extremely limited, although there have been some colorful exceptions.

Two newer organizations from Northern New Mexico, Amigos Bravos and Rio Grande Restoration, have begun to confront broader questions of the health of the Rio Grande. The National Audubon Society and Defenders of Wildlife have regional representatives who have been strong participants in these discussions, and several other organizations have played a role in planning processes. All these organizations are short-staffed in relationship to the demands for their involvement.

While most planning efforts go to great lengths to bring an environmental body to the table for the sake of assuring some credibility to the planning effort, this was not the case in the Bosque Initiative. This reticence may have been due to the recalcitrance expected from the landowners, the Middle Rio Grande Conservancy District, and others who would be uncomfortable with the assertive demands of environmental activists. It may also have been due to a belief that the support of the environmental community was assured without any special measures. Whether because of the deliberate distance originally imposed by the Task Force, or for other reasons, the initiative did not win as much support from the environmental community as one might have expected from its substance. Even had it done so, there are relatively few environmental organizations with the resources to devote to this effort. Most of the other New Mexico initiatives have similarly proceeded without the strong participation of environmental organizations. Their work has been conducted primarily by staff members of government agencies, academics, and a few members of the general public.

How important are environmentalists to the success of watershed initiatives? In this instance, the thinness of the state's environmental sector presents a formidable obstacle to sustaining such efforts. One reason is the pressure exerted by advocacy groups to reach a favorable conclusion; the second reason is our customary reliance on an environmental group to be the advocate for resource protection.(115)

One would expect the role of nonprofit advocates and of the consequences of their presence or absence to have been well studied. Perhaps the reason that it has not been studied is because it is tautological to observe that environmentalists are a presence in environmental disputes. Indeed, in the field of environmental law, it is groups such as the Natural Resources Defense Council or the Sierra Club that have brought the landmark litigation that comprises environmental law, and in so doing, formed our view that environmental groups are omnipresent in the field.(116)

Some scholarly commentary has circled the question of the difference that environmental advocates make to the management of natural resources. Serge Taylor, in a masterful study of how NEPA works, notes that subunits of the U.S. Army Corps of Engineers and the U.S. Forest Service reach different decisions based, in part, on the political makeup of their immediate political environments.(117) Thus, "districts and forests with well-organized environmental groups would also be more environmentally sensitive and compliant, depending also on the strength of the opposing development interests."(118)

The decision to confer standing on environmental litigants to advocate the public interest in clean air and clean water also manifests societal acknowledgment of the role played by environmental organizations and individuals. Citizen suits have grown to be an integral part of the Clean Water Act's implementation.(119)

While the absence of environmentalist participation may impair initiatives in New Mexico, there is a second consequence that goes to the heart of the participatory model, namely, the balance that is vital to the integrity of the process. The absence of well organized environmental representation in a region presents a dilemma for those who advocate participatory planning as a means of addressing resource management disputes. In a state with a relatively weak environmental sector, where only a few groups have paid staff, the disparity between those who are the paid representatives of the large institutions (for example, the attorneys and staff who represent organizations such as the Middle Rio Grande Conservancy District and the City of Albuquerque's Public Works Department) and the nonprofit sector results in weak to nonexistent advocacy of environmental interests. The model depends on equal staying power for all interests, if a balance is to be struck between use and preservation of resources. When the environmental sector cannot fulfill these needs, then the new paradigm needs to be rethought.(120) To the degree that governmental decisions are in some fashion delegated to watershed councils, their legitimacy needs definition. Electoral processes ensure legitimacy. Self-selected citizens may have the legitimacy that flows from commitment of time and energy to a watershed, but to the degree that any group is unable to participate, the legitimacy of the council's results is likely to be questioned.

Although there are very few environmental groups with paid staff who could assume a role in initiating a watershed council, there are several state and federal agencies with a statutory mission that could include starting a watershed council, while supporting local initiatives is a comfortable role for agencies, creating them appears to be another matter. This reticence may come from the prevailing notion that watershed councils should come from the grassroots efforts, and that state or federal initiation oversteps propriety. Our expectations for natural resource agency officials is highly unsettled at this time in the West.(121)

Beyond propriety, there is a more fundamental question as to how robust the support is by federal agencies for watershed councils. The history of western water projects has been described as an example of an iron triangle, where federal agencies, federal legislators, and local interest groups planned and procured funding for water projects.(122) Widespread local participation in decisionmaking was an anathema to the workings of the triangle. In the absence of a forum for participation in decisionmaking in the middle Rio Grande, vestiges of these historic relationships are still evident. In 1997, spending by the U.S. Army Corps of Engineers in New Mexico was approximately $14 million and for the Bureau of Reclamation it was approximately $5 million.(123) The U.S. Army Corps of Engineers is pursuing a flood control project of levee reconstruction on the Rio Grande that is environmentally controversial.(124) No watershed council exists that could review the project, hence the Corps was able to choose a favorable venue to gather fiscal support.

While the autonomy and opportunities for growth that federal agencies gather from the classic iron triangle might point to reticence about the shared management implicit in watershed councils, federal agencies can gain support from councils, as well. In the San Francisco Bay area, the Corps has expanded its historic role of dredging the Oakland Harbor to a new role of restoring wetlands with the dredged spoils. The Corps' Bay Model has become a center for educating citizens about the hydrologic dynamics of the estuary. Councils also diffuse political pressure on governmental officials: as in regulatory negotiations, agency officials can step back and merely adopt negotiated solutions.(125) In the middle Rio Grande federal agencies appear supportive of planning initiatives. Federal agencies have given financial support to a university facilitated meeting that is billed as the beginning of a planning process for the middle Rio Grande.(126)

In sum, if there is to be a watershed council, someone will have to cause it to happen. Short-handed environmentalists seem to lack the resources to do so, and this vacuum may be filled by university or agency officials with more secure funding sources.

D. Lack of Funding

Whatever success the Bosque Initiative has enjoyed in building a sustained presence devoted to the Bosque is due in large part to the federal funding that it has received. The absence of funding can spell doom for the ability of a project to reach fruition. Unlike a short-lived controversy, watershed planning requires sustained processes, in which administrative structures support ongoing work. In the Bosque Initiative, financial support, in part from a powerful senator, has led to solid ecological research and to the preparation and dissemination of a high quality research report that will be influential for years to come. While unpaid efforts by many citizens contributed to the products of the various committees, the infrastructure provided by direct funding, federal agency support, and university research has made the difference in the project proceeding as it has to date. The lack of funding for a staff for later steps, however, has hindered its implementation.

Other restoration efforts in New Mexico have been hindered by a lack of funds. Only a few foundations have headquarters in New Mexico, in contrast, for example, to the Bay Area, where foundation support was essential to a sophisticated, long-term environmental presence in the Bay-Delta proceedings. Membership dues alone are not sufficient to support staff for environmental advocacy groups. Neither EPA nor the Department of Interior supports restoration efforts in New Mexico with any large-scale funding.

V. FEDERALISM COMES HOME: WHAT LESSONS CAN BE LEARNED FROM NEW MEXICO?

Watershed management is needed to restore the West's rivers and streams. The ample evidence of success cited by other authors(127) shows what is intuitively obvious: cooperative efforts from people who live in a region (including federal and state officials) can accomplish more than any number of programs and mandates from distant offices. The Rio Grande example teaches some things about what might be needed to make these efforts work. It also highlights the discrepancy in the embrace offered by each state to environmental protection, and thus the danger of blanket devolution to local management structures.(128)

With this caveat, the many virtues of local initiatives make one ask how their successes can be replicated. If we are to have continued progress in environmental programs in all parts of the West, the nation will have to foster local initiatives. The Rio Grande needs this attention, for without it progress is uncertain. There are constructive means of addressing these obstacles.

A. Federal Support for Watershed Initiatives and Watershed Restoration

Congress could stimulate local efforts to create watershed initiatives and to restore the Rio Grande. These two purposes are discussed together because both serve federal interests and both need to be replicated more broadly within the state.

One of the attractive aspects of this era's watershed management initiatives is that they have come about without a massive federal program to create them. There has been federal support for most initiatives,(129) but this support has been directed to those who care enough about a watershed and who have enough bureaucratic skills to find money. This formulation seems exemplary: local initiative is rewarded; success breeds success; the feedback loop is working. In conversations about funding of watershed coalitions, a common theme is that worthy projects should prove themselves before they are given funding. Money isn't given out unless a group passes a threshold of tenacity and internal organization. The problem, as seen throughout the Rio Grande basin, is that this model can leave worthy people, and worthy rivers, without support. If one views watershed funding as rewarding people for their good efforts, the current system makes sense. If we rather view watershed funding as attempting to protect watersheds that need protection, there is no necessary relationship between who gets the money and rivers in need.

Why would some states have more functioning projects and citizen entrepreneurship than others? This question needs to be examined by social scientists,(130) Some answers suggest themselves from studies in environmental federalism. New Mexico has been classified as a "regressive state" in one article:

States with weak institutional capacities as well as a weak commitment to

environmental protection include... New Mexico .... For these states

decentralization of environmental programs will likely be a disaster. They

may fail to adequately implement federal laws in this area, and they are

unlikely to take independent actions .... These states will continue to

promote economic development at the expense of environmental quality.(131)

Continued federal funding is identified as a possible inducement for regressive states to successfully manage their environments.(132) Per capita income is another factor that has been hypothesized to be a determinant of whether a state supports environmental initiatives.(133) It certainly would seem to have an effect on the resources that the citizens of a state can bring to bear on environmental problems.

If we are to see watershed initiatives succeed in poorer states, federal funding is imperative. Ponder the effect of providing federal program funding based on the lack of state initiatives, rather than giving it to populous states with high levels of commitment to environmental goals.

The benefits of funding are seen in the progress of regional water planning in New Mexico. Even in regions where there are no professional environment groups, individual citizens, less committed to strong ideological positions, can be encouraged to participate in planning. The actions of the Ford Foundation in funding a newsletter and other mechanisms to facilitate citizen participation in New Mexico's regional water planning surely helped stimulate participation by entities that would not otherwise have been present. The participation by environmentalists has been fairly minimal, but other organizations and individuals with less clearly defined ideologies have participated, moderating the influence of the traditional water powers. Recognizing the need to create a grassroots presence and spending resources to do so may be necessary to bring an initiative to fruition.

New Mexico needs federal backing for river restoration, as well as for stimulating watershed councils, if the state's rivers are to be restored. Here, as well, Congressional support, not surprisingly, goes to regions that are well organized, where environmental restoration has been identified as a local priority, and where collaborative processes give reason to think that restoration will be implemented.(134) Congressional support of river restoration is becoming almost as commonplace as support for dams was in a past era. The 1992 Omnibus Miller Bradley bill gave contained funding for restoration projects, hand in hand with water development projects.(135) Massive federal support has gone to California's Bay Delta and the rivers of the Pacific Northwest. The Florida Everglades restoration effort has represented a commitment of hundreds of millions of federal dollars.(136) Indeed, the U.S. Army Corps of Engineers now has the authority through the 1996 Water Resources Development Act to develop restoration projects that are not linked to existing Corps facilities, The Corps is in the early stages of pursuing development of a project for the Rio Grande.

B. Federal Mandates Continue to be Needed as Incentive to Solve Problems Locally and as a Floor on Local Decision Making

While federal funding would go a long way toward stimulating watershed management, the federal role in establishing and enforcing national mandates to protect environmental and ecological values must be maintained if local watershed initiatives are to be successful. Both the Clean Water Act and the Endangered Species Act have spurred watershed management.(137) The federal government has historically performed this function across environmental programs.(138)

It is an open question whether the ESA will continue to provide a mandate for planning and restoration. Many of those who criticize the ESA probably have not fully Comprehended what its demise could mean for projects where it has provided the driver. These mandates are typically debated in anecdotal terms, in which an individual has been unfairly treated by the unyielding application of a federal law.(139) On other occasions, however, the unyielding mandate is what has assisted a community in solving a larger problem. Accommodation between the goals of the ESA and other legitimate goals in a watershed has led to both processes and results that the participants hail.

While the intent of those who participate in watershed management is the improvement of the environment, the movement towards local management hovers near a call for local control.(140) The delicacy with which the changing relationships between the federal government and states is approached by the proponents of watershed management varies. The notion that the local acceptance of responsibility should result in a diminished federal role is a logical, but not inescapable, conclusion. The middle Rio Grande's management by state agencies reveals that any protection that is afforded its environmental or ecological qualities continues to come as the result of federal law. At the same time, the relationship between communities and national mandates will change as watershed councils develop.

Watershed management is likely to strengthen local decision making regarding the environment, even if formal environmental mandates are not weakened. As people in watersheds organize themselves, the relative independence that federal agencies now enjoy will lessen. The iron triangle made possible the era of massive dam construction and water projects, where there were often local losers as well as winners.(141) There are very few proposals for massive federal projects of this sort under active consideration.(142) Nonetheless, Congress continues to spend real money on western water(143) and some constituencies have a greater voice than others in how that money is directed. If watersheds "spoke with one voice," it; seems likely that a different mix of priorities might be presented than what now emerges from federal agencies' budget submissions.

The current relationship between federal agency priorities, Congressional offices, and local entities over funding for water projects is very difficult to characterize, in part because it already spans a spectrum of possibilities. At one end, and perhaps the trend, is the process between the Northwest Power Planning Council and the relevant federal agencies. The agencies' budget submissions are known to Council staff, and disagreements may be aired with the Executive Office of Management and Budget (OMB) before the President's budget is submitted.(144) At the other end is the traditional model, where federal agencies in a region work up to a Washington, D.C. agency head, then the OMB, with budget proposals, before Presidential submission of a budget to Congress--the first moment at which citizens can even know of an agency's proposals.(145) That is not to say that influential local bodies and influential Congressional offices will not be familiar with the contents of these submissions, but rather that no "outsiders," such as one would find on a watershed council, will have had early input. In the absence of place-based entities with their own proposals for their watersheds, great discretion rests with federal officials.

The ideological slant that might be taken by place-based entities on the burning questions of water policy (development of new sources and degree of environmental protection) is not as clear as one might expect. At least two very different possibilities present themselves. A public choice perspective would suggest that local involvement may serve to weaken the protection of the environment. This conclusion is readily drawn from an historical perspective of resource use in the west. A critical examination by Michael C. Blumm of the "multiple use" principle of public lands argues that national mandates, representing national interests, must be maintained to avoid agency capture by local commodity users.(146) (In the Bosque model, local commodity users would presumably be those who use water for municipal or irrigation purposes.) Blumm cites Mancur Olson's theory to demonstrate why this can occur:

organizing large numbers of individuals seeking broadly dispersed public

goods would be extremely difficult, and he predicted that political activity

would be dominated by small special interest groups engaging in rent-seeking

at the expense of the public.(147)

Administrative law reforms provided increased public participation in an effort to balance the commodity users who had captured land use agencies with environmental interests. Blumm doubts whether opening up participation alone is enough to reduce agency capture:

[p]ublic choice studies suggest that the influence of special interest

groups will be strongest under three conditions: 1) when the group opposes

changes to the status quo, 2) when the group's goals are narrow and have

low political visibility, and 3) when the group has the ability to enlist

support from an alternative friendly forum, such as a sympathetic

Congressman or congressional committee.(148)

With respect to federal resources, Blumm suggests that commodity users are more likely to prevail at a local level than at a national level.(149)

The argument is sobering in its implications. If decentralization proposals rest on a belief in "balanced pluralism," Blumm's application of public choice theory suggests that commodity users are likely to control natural resources in most instances. National mandates to preserve environmental values thus are necessary because environmental "sacrifices"(150) are unlikely to be imposed by local users on themselves.

Indeed, without the ESA and the federal managers who implement it, the Rio Grande would have been in far worse shape, to the detriment of the silvery minnow as well as other aspects of its ecology: Commodity users predominate in the management of the state's water, and it is unlikely that this situation will change. Nevertheless, if there were a functioning watershed council in this region, commodity users might be the strongest voice, but other users would gain a seat they now lack.

The new faces at the table point to another possible outcome of place-based management. The vestiges of the iron triangle may be strongest where local governance alternatives are weakest. Even in a state with a weak environmental sector, a forum for water decisionmaking will attract participation from diverse interests. The long-held belief of political scientists (and our preference for democracy) is that greater participation in decision-making will make for better decisions.(151) Accordingly, it seems likely that the decisions of a middle Rio Grande watershed council would include more consideration for the environmental aspects of the River than are afforded by any of the existing decisionmaking entities.

The strengthening of local institutions that are representative of those who live in a watershed, of those who use resources, and those who wish to preserve or restore resources will in all likelihood lead to the eventual decline, though not extinguishment, of federal authority. The legitimacy and utility of federal mandates is always subject to question in a democracy. There are certain areas of federal environmental responsibility where the need to maintain standards will continue to find popular support. One rationale for federal involvement in environmental regulation is the fact that neither pollution nor species recognize state boundaries.(152) A national program will be required to preserve them as long as there is a national will to do so.(153) For many states, federal mandates may simply lose their relevance, as local initiatives surpass the minimum required by them, and eventually bring resources to bear on environmental problems that are believed by the jurisdiction to be more important. In California, Proposition 204 identifies a whole array of environmental improvement measures, some of which relate to federal mandates and some of which represent state initiatives.(154) California has a strong program to identify habitats and protect biodiversity that springs from state, not federal, goals.(155)

The difficult question posed by the vitality of watershed management is the degree to which these local institutions should be able to modify national mandates.(156) Proof of capacity in these institutions will make the case for federal involvement more difficult and Congress may respond with modifications in statutory schemes. At the least, federal agencies are not likely to ignore the preferences of these institutions, although they may reject them. As the public choice theorists establish, those who favor environmental protection may have the most to lose with stronger local institutions. But the possibility of real improvements, not simply regulatory stalemate, may make the gamble worthwhile.

VI. CONCLUSION

It is undeniable that the management of rivers and watersheds is moving into a new era. Federal laws, such as the Clean Water Act and the Endangered Species Act, have had an enormous impact on what had been seen as state prerogatives. States are changing, however, and many states have improved their capacity to protect their environments. The Congress has also changed, and it is unlikely to mandate additional environmental protection. New coalitions have shaken the traditional water establishments, with Native Americans, municipalities, cities, and environmentalists demanding a place at the table.

In this changing scene, the best stories have come from the grassroots. Citizens and representatives of all the water interests, both old and new, have successfully tackled difficult river management problems, building communities and negotiating solutions where diffuse interests are served.

This Article has examined a river where, despite the importance and even devotion shown to it, environmental degradation is accelerating. Other rivers in the state, much less well known, face similar threats without the consolation of any organized efforts aimed at their protection. Faced with a declining federal presence and a new adherence to bottom-up planning, what will become of rivers where no such initiatives are forthcoming, or where those that are initiated fizzle out?

The debate over central control versus decentralized control is insufficiently nuanced to reflect the strengths and weaknesses of each level of government. The firmest environmental advocate of centralized control may swiftly switch positions to preach the virtues of state control when the state is protecting rivers against federally licensed water projects.(157) The movement towards state control contains both opponents of environmental regulation, who believe that state regulation will be less stringent, and those who believe that smaller units of government are more accessible and responsive to the needs of their citizens, and hence more likely to arrive at better decisions than a far-off government in Washington. On the other hand, there are national interests in federal lands, and many years of compelling evidence that the support of a national government makes protection of environmental interests more likely to occur. Finally, the states vary widely in their attitudes towards environmental protection, so the movement towards decentralization must candidly acknowledge that some states will aggressively utilize new management powers, while others will do very little.

The successful examples of watershed management that are emerging across the West should not lull policymakers into thinking that it will occur everywhere. Congress can awaken and nurture the interest that communities have in their watersheds through a wide array of federal mechanisms and to do so would lessen many of our most divisive conflicts over environmental protection.

(1) There is no widely accepted demarcation between watershed and basin management. I have used the term watershed here because the reach of the Rio Grande that is the subject of this Article lies within one state, in contrast to reaches that cross interstate borders. "Basin" management typically refers to larger hydrologic commonly interstate units, and management entities at a basin level have been comprised of governmental officials. The Northwest Power Planning Council is an example of basin management.

(2) William Goldfarb, Watershed Management: Slogan or Solution, 21 B.C. ENVTL. AFF. L. REV. 483, 498-99 (1994) (footnotes omitted).

(3) The philosophy underlying watershed management is in contrast with that of the Progressive Era, where science was enshrined as a determinant of government action. Under some versions of the new paradigm of watershed management, in contrast, local values would control: "Decentralization allows decision-making authority to be vested in a group which is directly affected by its decisions, and the values held by the most affected group should be the controlling factor in any decision." Robert H. Nelson, Government as Theater: Toward a New Paradigm for the Public Lands, 65 U. COLO. L. REV. 335, 358 (1994).

(4) An inspiring example of this is occurring in Henry's Fork, Idaho, where agricultural and environmental users have learned how to face disagreements and preserve their community. See, e.g., Janice Brown & Dale Swensen, The Henry's Fork: Finding Mutual Interest in the Watershed, in NATURAL RESOURCES LAW CENTER, UNIVERSITY OF COLORADO, SUSTAINABLE USE OF THE WEST'S WATER (1995) (describing the negotiations and common ground between the agricultural and environmental communities); David H. Getches, Changing the River's Course: Western Water Policy Reform, 26 ENVTL. L. 157, 171 (1996) (describing the history of western water law and new ways of dealing with old problems, specifically the Henry's Fork case); see generally DANIEL KEMMIS, COMMUNITY AND THE POLITICS OF PLACE (1990) (arguing for community-based decision making).

(5) See generally RIVER NETWORK, RIVER VOICES (Summer 1994) (endorsing watershed management). Dissenting voices are rare, although they have emerged in the application of these principles to wilderness and grazing decisions. See Mike Matz, Project 2000 Dead End, SOUTHERN UTAH WILDERNESS ALLIANCE NEWSLETTER 21, 23 (Winter/Spring 1994) (providing reasons for eschewing participation in advisory councils). The article's rationale questions the basis upon which federal agencies have so eagerly embraced watershed management:

Advisory committees come out of a controversy sparked by government agency

either failing to or attempting to carry out its statutory or regulatory

mandate. An agency loves nothing more than to shirk its duty by shifting

responsibility to affected parties, rather than risk perturbing any of these

parties by doing its job. SUWA will not participate just to tell an agency

to do what is legally required. We will tell the agency, then sue if no

compliance follows.

Why SUWA Stays Off Advisory Committees and Their Ilk, SOUTHERN UTAH WILDERNESS ALLIANCE NEWSLETTER 23 (Winter/Spring 1994).

(6) ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 73 (1992).

(7) 33 U.S.C. [subsections] 1251-1387 (1994).

(8) 16 U.S.C. [subsections] 1531-1544 (1994).

(9) See Tom Bahr, The Park City Principles: A New Paradigm for Managing Western Water, 31 LAND WATER L. REV. 299 (1996) (discussing the potential for applying principles derived in the 1970s to present day water management).

(10) AMERICAN RIVERS, NORTH AMERICA'S MOST ENDANGERED AND THREATENED RIVERS OF 1994 7 (1994).

(11) This trend is visible in the congressional debate over the reauthorization of the Endangered Species Act, where much of the debate centers around how state participation would be increased. See Endangered Species Reauthorization, Part 1: Hearings Before the Subcomm. on Drinking Water, Fisheries and Wildlife of the Senate Comm. on Env't and Pub. Works, 104th Cong., 1013-32 (1995) (arguing the points of state control versus federal control).

(12) These initiatives include the following:

1) New Mexico has been moving slowly towards regional planning for water supply. See Charles T. DuMars & Michelle Minnis, New Mexico Water Law: Determining Public Welfare Values in Water Rights Allocation, 31 ARIZ. L. REV. 817 (1989) (describing New Mexico's shift to regional planning). While the effect that will be given to a region's plans by decision makers is unclear, there is a solid coalition of local supporters for these efforts, due in large part to foundation funding. Additionally, the state legislature has provided funding to regions to prepare these plans.

2) The United States Geological Survey has recently revealed that the City of Albuquerque's aquifer is much smaller than had been believed. This information has touched off a flurry of meetings, proposals, and studies. Several ad hoc groups have delineated the scientific research that they believe is necessary and the City has begun to study possible changes in water management. Ecological concerns are not a high priority of any of these efforts.

3) The Rio Grande/Rio Bravo Sustainable Development Initiative is attempting to involve people from the entire river basin in planning for sustainable development of the region. This group's work is especially noteworthy because of the collaboration that it has fostered with Mexican universities and citizens. Foundation funding and the support of the participating universities have assisted this effort.

4) New Mexico can lay claim to one of the most desertified regions in the United States, which contributes enormous amounts of silt to the Rio Grande through the Rio Puerco. The Rio Puerco watershed has been the focus of a planning effort led by the Bureau of Land Management Legislation introduced by Senator Bingaman (D-N.M.) mandates this planning, with the eventual goal of providing support for a restoration effort in the Rio Puerco. Omnibus Parks and Public Lands Management Act of 1996, Pub. L. No. 104-333, [sections] 401, 110 Stat. 4145-4148 (1996).

5) Possibly the most successful initiative is the least structured. Agency employees from federal, state, and regional organizations have held "joint initiatives" meetings, which have resulted in minimum flows being maintained in one stretch of the river. Other projects dealing with flow releases are being developed.

6) Tribal governments have also been involved in restoration activities, participating in some of these organizations, as well as restoring their own watersheds. The Zuni Pueblo's watershed project is a model for these activities. Zuni Land Conservation Act of 1990 and Zuni River Watershed Act of 1992, Pub. L No. 102-338, 106 Stat. 866 (1992).

7) Additionally, there are several agencies and organizations involved in the collection and publication of data and water related research. These include the State Engineer's Office, the United States Geological Service, a new project called the New Mexico Inventory and Assessment, and the Water Resources Research Institute at New Mexico State University. The state also has a Riparian Council, which advocates support for riparian restoration projects.

(13) There are several recent studies that provide overviews of the River and this region. A pointed review of the challenges facing the river from its headwaters in Colorado to Fort Quitman, Texas, was performed by a consulting finn, ECONorthwest, for the use of the Western Water Policy Review Advisory Commission. ERNIE NIEMI, WESTERN WATER POLICY REVIEW ADVISORY COMMISSION, WATER MANAGEMENT STUDY: UPPER RIO GRANDE BASIN (1997) [hereinafter WATER MANAGEMENT STUDY]; see also ECOLOGY, DIVERSITY AND THE SUSTAINABILITY OF THE MIDDLE RIO GRANDE BASIN (D.M. Finch & J.A. Tainter eds , 1995) (studying the management strategies of the Rio Grande); BIOLOGICAL INTERAGENCY TEAM, MIDDLE RIO GRANDE ECOSYSTEM: BOSQUE BIOLOGICAL MANAGEMENT PLAN (1993) (discussing the effects of management and development on the Rio Grande and ways to remedy the damage) [hereinafter BBMP].

(14) See Andrew A. Skolnick, ALong the US Southern Border, Pollution, Poverty, Ignorance and Greed Threaten Nation's Health, 273 JAMA 1478 (May 17, 1995) (describing the unsafe water supply along the United States and Mexico border).

(15) See NEW MEXICO WATER QUALITY CONTROL COMMISSION, WATER QUALITY AND WATER POLLUTION IN NEW MEXICO 27 (1992) (discussing the effects of agriculture on water resources). 16 WATER MANAGEMENT STUDY, supra note 13, at 46.

(17) Id. at 42.

(18) BBMP, supra note 13, at 36.

(19) Id. at 38.

(20) Id.

(21) Id. at 39.

(22) UNITED STATES DEPARTMENT OF THE INTERIOR U.S. GEOLOGICAL SURVEY, WATER RESOURCES INVESTIGATIONS, REPORT 93-4149, GEOHYDROLOGIC FRAMEWORK AND HYDROLOGIC CONDITIONS IN THE ALBUQUERQUE BASIN CENTRAL NEW MEXICO (1993).

(23) BBMP, supra note 13, at viii, ix.

(24) Id. at 40 (citations omitted).

(25) This description of the River's importance will be familiar because the role it plays in the Rio Grande is not different from that of other rivers in arid regions. It is estimated that about 80% of all vertebrates are dependent upon rivers for some portion of their life cycle. Aubrey Stephen Johnson, The Thin Green Line: Riparian Corridors and Endangered Species in Arizona and New Mexico, in DEFENDERS OF WILDLIFE, PRESERVING COMMUNITIES AND CORRIDORS 35, 37 (Gay Mackintosh ed., 1989). Riparian ecosystems are dubbed the "premier biological resource in the entire arid Southwest." Id. at 36.

(26) BBMP, supra note 13, at 112.

(27) Id. at 140.

(28) STATE OF NEW MEXICO, WATER QUALITY CONTROL COMMISSION, STANDARDS FOR INTERSTATE AND INTRASTATE STREAMS (1995).

(29) NEW MEXICO WATER QUALITY CONTROL COMMISSION, WATER QUALITY AND WATER POLLUTION CONTROL IN NEW MEXICO (1994).

(30) Id.

(31) BBMP, supra note 13, at 58.

(32) Id. at 54.

(33) Sherman Ellis et al., Rio Grande Valley, Colorado, New Mexico, and Texas, 29 WATER RES. BULL. 617, 629 (1993).

(34) 33 U.S.C. [sections] 1362(14) (1994).

(35) See, e.g., City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), cert. denied, U.S. --, 118 S.Ct. 410 (1997) (challenge by City of Albequerque to EPA's approval of tribal water quality standards).

(36) In his seminal article on watershed management, Robert Adler summarizes the voluminous literature on the complicated structure for water management. Robert Adler, Addressing Barriers to Watershed Protection, 25 ENVTL. L. 973, 991-94 (1995).

(37) BBMP, supra note 13, at 42-44; see generally IRA G. CLARK, WATER IN NEW MEXICO: A HISTORY OF ITS MANAGEMENT AND USE (1987) (discussing the impact of dams and reservoirs on the Rio Grande).

(38) BBMP, supra note 13, at 46-49.

(39) Pub. L. No. 92-514, 86 Stat. 964 (1972), as amended by Pub. L. No. 96-375, [sections] 6, 94 Stat. 1507 (1980); Pub. L. No. 98-570, 98 Stat. 2941 (1984); Pub. L. No. 100-516, [sections] 22, 102 Stat. 2566, 2575 (1988).

(40) BUREAU OF LAND MANAGEMENT, THE RIO GRANDE CORRIDOR PLAN (1997).

(41) Id.

(42) Act of June 13, 1962, Pub. L. No. 87-483, [sections] 8, 76 Stat. 97 (1962) (authorizing the construction, operation, and maintenance of the initial stage of the San Juan Chama Project, Colorado-New Mexico).

(43) WATER MANAGEMENT STUDY, supra note 13, at 5.

(44) Robbie Farley-Villabos, Las Cruces, N.M. Bus. J., Jan. 1, 1997, at 83.

(45) See, e.g., City of El Paso v. Reynolds, 563 F. Supp. 379 (D.N.M. 1983) (litigating the water demands of surrounding areas).

(46) New Mexico-Texas Water Commission, described in WATER MANAGEMENT STUDY, supra note 13, at 84; Charles T. DuMars, Application of Park City Principles to Federal-State Conflicts, 31 LAND & WATER L. REV. 313, 320 n.22 (1996).

(47) As one study noted:

Whatever water is in the river below El Paso and Ciudad Juarez

generally includes return flow from municipal waste water and

irrigators. The quality and reliability of this water is low

and is used for agricultural production through the Hudspeth Irrigation

District on a first-come, first served basis. About 100 miles below

El Paso at Ft. Quitman, the Rio Grande essentially goes dry.

WATER MANAGEMENT STUDY, supra note 13, at 6.

(48) WILLIAM DEBUYS, ENCHANTMENT AND EXPLOITATION: THE LIFE AND HARD TIMES OF A NEW MEXICO MOUNTAIN RANGE (1985); WILLIAM DEBUYS, RIVER OF TRAPS: A VILLAGE LIFE (1990).

(49) William deBuys, Moving from Diverse Viewpoints to Results, in Barbara Tellman, et al., U.S. Department of Agriculture, Forest Service, Rocky Mountain Forest and Range Experiment Station, Riparian Management; Common Threads & Shared Interests--A Western Regional Conference on River Management Strategies, GEN. TECH. REP. RM-226 (Feb. 4-6, 1993).

(50) BBMP, supra note 13, at vii.

(51) Id. at xiii.

(52) Id. at 154-55 (citations omitted).

(53) Id. at 149.

(54) Id. at 152.

(55) BBMP, supra note 13, at 152-56.

(56) Id. at 160.

(57) Because the west side of the River (the established portion of Albuquerque is on the east side) is booming with new growth, the River and Bosque are viewed by some as an impediment to the unification of the geographically far flung city. Fragmentation of the Bosque was recently exacerbated by the construction of a bridge through the Bosque, a proposal backed by the mayor of Albuquerque and the state's largest newspaper.

(58) BBMP, supra note 13, at 159-63.

(59) Rio Grande Bosque Conservation Committee, 1993.

(60) S. J. Mem. 12, 41st Leg., 1st Sess. (N.M. 1993).

(61) REPORT OF THE MIDDLE RIO GRANDE TASK FORCE TO THE NEW MEXICO LEGISLATURE 2 (Oct. 12, 1994) (report on file with the Author and the Task Force).

(62) Id. at 3.

(63) Id.

(64) S.B. 663, 42nd Leg., 1st Sess. (N.M. 1995).

(65) Exec. Message No. 96 (N.M. Apr. 5, 1995).

(66) Id.

(67) S.B. 879, 43rd Leg., 1st Sess. (N.M. 1997) (vetoed Apr. 9, 1997).

(68) Id.

(69) New Mexico ranked 48th in the United States in per capita income in 1994. BUREAU OF THE CENSUS, ECONOMICS AND STATISTICS ADMINISTRATION, U.S. DEPT. OF COMMERCE, 1995 PER CAPITA INCOME FOR STATES, CENSUS AND YOU 5 (May 1996).

(70) The population was 1.5 million in 1993 and is projected to grow to 2.2 million by the year 2020. BUREAU OF BUSINESS AND ECONOMIC RESEARCH, UNIVERSITY OF NEW MEXICO, POPULATION PROJECTIONS FOR THE STATE OF NEW MEXICO BY AGE AND SEX 1990 And 2020, at 1 (1994).

(71) BBMP, supra note 13, at 10.

(72) CONDE R. THORN ET AL, U.S. GEOLOGICAL SURV., REPORT No. 93-4149, GEOHYDROLOGIC FRAMEWORK AND HYDROLOGIC CONDITIONS IN THE ALBUQUERQUE BASIN, CENTRAL NEW MEXICO (1993).

(73) Decreasing groundwater pumping might have beneficial effects on the River, on the other hand, depending on the nature of the hydrologic connections. These connections are not well understood.

(74) The City could presumably remove additional water and be credited for water that it did not use consumptively.

(75) New Mexico is one of only three states in the West that lacks either administrative or statutory mechanisms to protect instream flows. Steven J. Shupe & Lawrence J. MacDonnell, Recognizing the Value of In-Place Uses of Water in the West: An Introduction to the Laws, Strategies, and Issues, in INSTREAM FLOW PROTECTION IN THE WEST 1-1, 1-4 (Lawrence J. MacDonnell & Teresa A. Rice eds., 1993).

(76) The lack of consideration given to instream flows is manifested in a study Albuquerque commissioned to support its planning process. While the Commission noted the listing of an endangered species, it did not discuss the ecology of the River nor the effect of the City's decision making on the River (although it did recognize that federal law will likely require a full exploration of environmental effects). The Commission captured the "use it or lose it' philosophy: "If it [the City's San Juan-Chama water] is released to the Rio Grande to offset a fictional depletion of the river, it is not used, it is lost." CITY OF ALBUQUERQUE PUBLIC WORKS DEPARTMENT, WATER RESOURCES, ALBUQUERQUE WATER RESOURCES MANAGEMENT STRATEGY SAN JUAN-CHAMA DIVERSION PROJECT OPTIONS, 1 SUMMARY REPORT 1, 1-13 (1995). Later reports provided more attention to environmental aspects.

(77) Steve Reynolds, the late State Engineer, used to argue that compact delivery obligations provided adequate protection for ecological functions. The compacts have demonstrably failed to protect flows in those tributaries of compact-governed rivers that have been entirely depleted by agricultural or municipal diversions. For the main stems of those rivers, the effect of compacts is less clear. While they do require deliveries of certain flows, no timing requirements attach to these flows, nor are the volumes of these flows tied to ecological needs. This question has not been scientifically analyzed because state law does not require it.

(78) IAN L. McHARG, DESIGN WITH NATURE (1992).

(79) See MARC REISNER, CADILLAC DESERT (1986) (discussing the origins and growth of Los Angeles through its use of water).

(80) In the lower basin (Texas and Mexico), in contrast, human health issues associated with the River have received widespread publicity and governmental attention. See Skolnick, supra note 14 (discussing health problems caused by the river); Jeannie Ralston, Among the Ruins of Matamoros, Audubon, Nov. 1993, at 86 (describing how a Mexican city's population growth and unchecked pollution is destroying water supply and causing birth defects and childhood cancers); Philip Elmer-DeWitt, Love Canals in the Making, TIME, May 20, 1991, at 51; Michael Satchell, Poisoning the Border: Many American-Owned Factories in Mexico are Fouling the Environment, and Their Workers Aren't Prospering, U.S. NEWS & WORLD REPORT, May 6, 1991, at 32.

(81) There is much more to be considered in asking what attributes of a river lead to an active constituency for it. There are notable environmental battles that have been waged over ecological (or aesthetic) values in other regions. The battle for Alaskan wilderness was fought by many who had never even visited the state. Nonetheless, it seems likely that rivers that are used by humans for purposes that are considered important are more likely to receive the benefits of advocacy than others. Robert Adler explores the tension between the views expressed in 1973 by Dr. Helen Ingram that led her to conclude that "water in particular `has not been a subject which raises the level of regional cohesiveness,'" and the emerging concept of bioregionalism, "an increased allegiance to specific places." Adler, supra note 36, at 1001 (footnotes omitted). He concludes that the new support for watershed management is emerging from this love of place. The question remains whether this phenomenon is universal or linked to identifiable characteristics of place or the human communities that inhabit them.

(82) The economic importance of the Bosque is not recognized in institutional decision making and hence is not valued. Like rivers everywhere, it is a magnet for Albuquerque residents who use it for hiking, birdwatching, bicycling, and fishing. It, along with the Sandia mountains, surely contributes to Albuquerque's quality of life. For the most part, the recreational opportunities have not been fully developed and the Bosque's importance to Albuquerque's citizens is rarely considered.

(83) National Environmental Policy Act, 42 U.S.C. [subsections] 4321-4370(d) (1994). Participation in water resources decisionmaking by environmentalists is the exception across the west and only became notable in recent years. Ingram commented:

Policy-making coalitions in water resources politics still tend

to be small, stable, and exclusive. The major participants in

the politics of water have had interest, skill, and resources.

They are associated with the big water users including municipalities,

agribusiness, energy, and industry ....

It is rare for water supply issues to become the basis of

broadly based conflict within localities because interests in

water are differentiated along geographic rather than ideological

or partisan lines.... Environmentalists have made no more than symbolic

inroads into the inner sanctum of decision making concerning water

quantity.

HELEN INGRAM, WATER POLITICS: CONTINUITY AND CHANGE 7-8 (1990).

(84) Rio Grande Compact, ch. 155, Stat. 785 (May 31, 1939) (codified at 43 U.S.C. [sections] 620(o) (1994)). The Compact was executed by commissioners representing the states of Colorado, New Mexico and Texas, and was consented to by Congress in 1939. Id., see also Charles R. McCash, Comment, The Rise and Demise of the New Mexico Environmental Quality Act, "Little NEPA," 14 NAT. RESOURCES J. 401 (1974).

(85) The protection of flows for environmental purposes is not part of the agency's statutory mandate. An intervenor might be able to raise concerns about flows under the public welfare clause. See Consuelo Bokum, Implementing the Public Welfare Requirement in New Mexico's Water Code, 36 NAT. RESOURCES. J. 681 (1996).

(86) The fierceness with which communities have fought for their water is another stow. One such confrontation was the challenge by a rural Hispanic community to a proposed transfer of irrigation water to a ski developer, memorialized in Ensenada Land and Water Ass'n v. Sleeper, 686 P.2d 269 (N.M. Ct. App. 1984). See Shannon A. Parden, The Milagro Beanfield War Revisited in Ensenada Land & Water Ass'n. v. Sleeper: Public Welfare Defies Transfer of Water Rights, 29 NAT. RESOURCES J. 861 (1989) (contrasting the actions in the Milagro Beanfield War to legal action).

(87) MIDDLE RIO GRANDE CONSERVANCY DISTRICT: WATER POLICIES PLAN 1 (Charles Dumars & S.C. Nunn eds., 1993).

(88) Id.

(89) Id.

(90) Id.

(91) Id.

(92) In contrast, Albequerque residents who are restricted to the municipal water supply are seeing their water rates climb sharply, with landscaping maintenance becoming an expensive hobby.

(93) Who Will Boss the Bosque?, Conservancy Today (Fall 1994) (on file with author).

(94) Telephone Interview with State Senator Dede Feldman (D) (March 1998). Senator Feldman is a cosponsor of the legislation.

(95) See generally ENVIRONMENTAL POLITICS AND POLICY IN THE WEST (Zachary A. Smith ed., 1993) (discussing politics and its effect on western water management).

(96) 59 Fed. Reg. 36,988 (July 20, 1994) (to be codified at 50 C.F.R. [sections] 17). The critical habitat designation initially was delayed because the economic analysis had not been completed for the species. Id. The Department of Interior still has not listed critical habitat for the species, which has led to litigation by two environmental groups. Ian Hoffman, Two Groups Sue to Protect Minnow's Habitat in Middle Rio Grande, Albuquerque J., April 9, 1997, at C-7.

(97) The Clean Water Act was initially viewed as a threat to the western states' management of water. Section 101(g) of the Clean Water Act specifically addressed the relationship of federal water quality regulation and allocation schemes, although the language appears not to have been a bar to EPA's implementation of the Act. 33 U.S.C. [sections] 1251(g) (1994).

(98) See W. DIETRICH, NORTHWEST PASSAGE, THE GREAT COLUMBIA RIVER (1995) (discussing salmon recovery and the Columbia River).

(99) See Department of Ecology v. Yakima Reservation Irrigation Dist., 850 P.2d 1306 (Wash. 1993) (litigating over Indian rights and the consequences of power facilities).

(100) Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. [section] 839b(a)(1) (1994).

(101) Northwest Resource Info. Center, Inc. v. Northwest Power Planning Council, 35 F.3d 1371 (9th Cir. 1994).

(102) JOHN VOLKMAN, A RIVER IN COMMON: THE COLUMBIA RIVER, THE SALMON ECOSYSTEM, AND WATER POLICY 85 (1997).

(103) See id. at 135-37.

(104) Proposition 204, codified as CAL. WATER CODE [sections] 12300 (Deering 1996).

(105) SUE MCCLURG, SACRAMENTO-SAN JOAQUIN RIVER BASIN STUDY 21 (1997).

(106) There is a wealth of literature on both systems. See KAI N. LEE, COMPASS AND GYROSCOPE: INTEGRATING SCIENCE AND POLITICS FOR THE ENVIRONMENT (1993) (discussing the two rivers as well as many others in the context of environmental law); Colloquium, Who Runs the River?, 25 ENVTL. L. 349 (1995) (generally discussing different water systems in the northwest); Elizabeth Rieke, The Bay-Delta Accord: A Stride Toward Sustainability, 67 U. COLO. L. REV. 341 (1996) (discussing the application of the Clean Water Act and the Endangered Species Act to the Bay-Delta area).

(107) Water Management Strategy for the Middle Rio Grande Valley (1996) (unpublished document on file with the author).

(108) Department of Environment Act, N.M. STAT. ANN. [subsections] 9-7A-1 to 9-7A-12 (Michie 1994).

(109) EPA SCIENCE ADVISORY BOARD, REDUCING RISK: SETTING PRIORITIES AND STRATEGIES FOR ENVIRONMENTAL PROTECTION (1990).

(110) Energy, Minerals and Natural Resources Department Act, N.M. STAT. ANN. [subsections] 9-5A-1 to 9-5A-7 (Michie 1994).

(111) The division was created by 1994 N.M. LAWS 129, codified at N.M. STAT. ANN. [sections] 17-1-5.1 (Michie 1995).

(112) Id. [subsections] 17-2-37 to 17-2-46.

(113) The Regional Water Planning Handbook developed as part of this process virtually ignored ecological aspects of water. Planners were directed to analyze water use for public water supply, domestic, irrigated agriculture, livestock, commercial, industrial, mining, power, reservoir evaporation, fish, wildlife, and recreation. NEW MEXICO INTERSTATE STREAM COMMISSION, REGIONAL WATER PLANNING HANDBOOK (1994). In the last category, however, only water in reservoirs for fish and wildlife was to be considered, not instream needs. Id. at 9. A more detailed template lists "riparian uses/instream flows" as a use that a planner might wish to consider. Id. at 17.

(114) While the number of environmental activists is small in comparison with the Bay Area, New Mexico has a higher number of members of environmental organizations in comparison to its population than many other states. Thomas A. Wikle, Geographical Patterns of Membership in U.S. Environmental Organizations, 47 PROFESSIONAL GEOGRAPHER 41 (1995). For purposes of participation in policy making the absolute number of activists is important, however, because resource decisions are related to the size of the state, not the population. New Mexico is the fifth largest state in area.

(115) The efforts that are led by agency officials have some advantages over those initiated by citizens. Little "hard money" is required because the organizations that allow staff to participate are effectively subsidizing their costs. Agency members and academics are also likely to bring scientific understanding, technical skills, and an understanding of bureaucracies. What they lack is a tradition of acting as advocates, and their ability to continue their efforts is premised on political support from higher levels in the agencies. The open question is whether agency-led efforts will be sustained and achieve results without the strong participation of advocacy groups.

(116) Environmental controversies also arise, of course, between administrative agencies and industries, but the landmark cases have had environmental groups as plaintiffs. Think of TVA v. Hill, 437 U.S. 153 (1978), Kleppe v. Sierra, Club, 427 U.S. 390 (1976), and Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987).

(117) SERGE Taylor, MAKING; BUREAUCRACIES THINK: THE ENVIRONMENTAL IMPACT STATEMENT STRATEGY OF ADMINISTRATIVE REFORM 131-33 (1984).

(118) Id. at 133.

(119) Jeffrey G. Miller, Private Enforcement of Federal Pollution Control Laws: Part III, 14 Envtl. L. Rep. (Envtl. L. Inst.) 10407, 10424 (Nov. 1984).

(120) The middle Rio Grande presents a situation where watershed initiatives have yet to come to fruition. It is plausible that a quasi-public process could result in the semblance of a watershed initiative on the Rio Grande, but legitimate interests would be missing. This concern has been strongly voiced by a representative of an environmental group, in commenting on the Western Water Policy Review Advisory Commission's interest in watershed management: "We believe that in many cases, local watershed efforts are primarily intended to protect and promote local economic interests, rather than restore ecosystem health." Letter from Reed Benson to Natural Resources Law Center, April 23, 1997 (on file with the author).

(121) The role of agency staff in natural resource disputes is itself disputed. Are they mediators? Protectors of the environment against misguided exploitative interests? Scientific experts applying the new science of ecosystem management? See Sally Fairfax, Interest Group Participation in Public Land Planning and Decision Making Processes: Paradigm Lost, Paradigm Found, 1994 Second Annual Western Lands Conference, Natural Resources Law Center, University of Colorado School of Law. The suggestion that agency officials would play an environmentalist role, if unrestrained, presupposes ail agency culture that leans towards resource protection. There is nothing timeless about this perception of agencies, and those confronted with environmental abuses fostered by these same agencies might find the suggestion preposterous. Fairfax characterizes environmentalists as "awkwardly inconsistent" on the role of federal agencies. Id.

(122) See DANIEL MCCOOL, COMMAND OF THE WATERS: IRON TRIANGLES, FEDERAL WATER DEVELOPMENT AND INDIAN WATER (1994). He defines "iron triangles" as

an informal political alliance that forms to influence a specific public

policy to its advantage. Consisting of Congressional committees and

sub-committee, administrative agencies, and interest groups, these

tripartite coalitions influence the allocation of government goods and

services in such a way that the Congressional committee members get credit

for `bringing home the bacon' to their constituents, the administrative

agencies expand their budget, personnel and turf, and the interest groups

get what they want from the government. Thus the triangle works in a

symbiotic fashion that creates advantages for all three participants; by

helping one another they help themselves.

Id. at 5.

(123) EOP FOUNDATION, BUDGETING FOR FEDERAL WATER PROJECTS--REPORT TO THE WESTERN WATER POLICY REVIEW ADVISORY COMMISSION 16 (1997).

(124) The project is described in U.S. CORPS OF ENGINEERS, FINAL ENVIRONMENTAL ASSESSMENT, MIDDLE RIO GRANDE FLOOD PROTECTION: BERNALILLO TO BELEN, NEW MEXICO (Apr. 1995).

(125) This is precisely what some environmental groups fear about consensus processes: insofar as a federal official is charged with interpreting environmental laws, yielding to the preferences of a local group can mean that too much responsibility is delegated to a nongovernmental entity.

(126) Tania Soussan, Group Breaks Ground on Water, ALBUQUERQUE J., Aug. 10, 1997, at, B1.

(127) See generally Adler, supra note 36 (reviewing several large watershed projects); DOUGLAS S. KENNEY & BETSY RIEKE, RESOURCES MANAGEMENT AT THE WATERSHED LEVEL: AN ASSESSMENT OF THE CHANGING FEDERAL ROLE IN TIlE EMERGING ERA OF COMMUNITY-BASED WATERSHED MANAGEMENT (Western Water Policy Review Advisory Commission ed., 1997) (examining twelve case studies of active watershed initiatives with recommendations to policymakers) [hereinafter RESOURCES MANAGEMENT].

(128) See generally A. Dan Tarlock, Biodiversity Federalism, 54 MD. L. REV. 1315 (1995) (considering how biodiversity protection can succeed with the involvement of different levels of government).

(129) RESOURCES MANAGEMENT, supra note 127, at 62.

(130) Its significance to environmental and natural resource policy goes beyond watersheds. Increasingly, public processes rely on citizen volunteers, whether to initiate problem solving, participate in negotiated rulemaking, or to direct public priorities. If the absence of volunteers means that problems are not addressed, then we have to understand how to locate and nourish these activists. On a very different scale, I was once active in a street campaign to get speed bumps installed by the City of Albequerque. The traffic engineer decided that the citizen volunteers should operate a radar display and initiate letters to speeders, as a possible alternative to speed bumps. When we protested that full-time jobs made this unlikely, he questioned our commitment, to traffic safety. Government officials requiring volunteerism as a condition of carrying out their responsibilities somehow turns this relationship on its head.

(131) James P. Lester, A New Federalism? Environmental Policy in the States, in ENVIRONMENTAL POLICY IN THE 1990S: REFORM OR REACTION? 59, 74 (Norman J. Vig & Michael Kraft eds., 1990).

(132) Id. at 75.

(133) Id. at 70-71. Lester asserts that "[w]ealth accounts for a significant amount of the variation in state efforts to protect the environment." Id. at 71. This assertion seems entirely consistent with development theory and personal observation: we expect California and Western Europe, for example, to have stringent environmental controls, and that poorer states and poorer nations would not raise environmental protections to that level.

(134) These are characteristics of the Bay-Delta and Columbia basins. On the other hand, a former assistant secretary of the Department of Interior, when asked about the basis for the current distribution of restoration funds, answered "politics." The electoral votes of California and the Pacific Northwest cannot be matched by New Mexico.

(135) Reclamation Projects Authorization and Adjustment Act of 1992, Pub. L. No. 102-575, 106 Stat. 4600 (1992).

(136) See U.S. GENERAL ACCOUNTING OFFICE'S REPORT TO CONGRESSIONAL REQUESTERS, RESTORING THE EVERGLADES: PUBLIC PARTICIPATION IN FEDERAL EFFORTS, GAO/RCED 96-5 (1995) (describing public participation efforts of federal agencies in this massive effort).

(137) RESOURCES MANAGEMENT, supra note 127, at 62.

(138) State environmental directors have privately acknowledged how important the superintending role of EPA is to state enforcement efforts. This was remarked upon by a former EPA administrator: "`Unless the states have a gorilla in the closet, they can't do the job. And the gorilla is the EPA. If they open the closet and fund nobody there, or somebody who won't come out, that doesn't do them any good." Richard J. Tobin, Environmental Protection and the New Federalism: A Longitudinal Analysis of State Perceptions, 22 PUBLIUS: THE JOURNAL OF FEDERALISM 93, 105 (Winter 1992). A survey of state air and water quality administrators found that they agreed that the federal presence in these fields strengthened their own ability to enforce their laws. Id. at 104.

(139) See The State of the Law on the Taking of Private Property Rights by the Government and the Experiences in this Matter, Oversight Hearing Before the Task Force on Private Property Rights of the Committee on Resources, 104th Cong., 1st Sess., 20-35 and 100-63 (July 17, 1995) (debating the effects of the ESA, using examples of individuals).

(140) The tension between local and federal agencies is explicit in the public review draft of the report of the Western Water Policy Review Advisory Commission, which endorsed watershed management and experimentation, but refused to recommend that federal environmental mandates be modifiable at a local level. See WESTERN WATER POLICY REVIEW ADVISORY COMMISSION, WATER IN THE WEST: THE CHALLENGE FOR THE NEXT CENTURY 480-82 (19971) (reviewing water policies).

(141) HELEN INGRAM, WATER POLITICS: CONTINUITY AND CHANGE 9 (1990) (developing the categories of "winners and losers" in today's water politics).

(142) Two noteworthy exceptions are the Animas La Plata project in southern Colorado and the Auburn Dam in California.

(143) See EOP FOUNDATION, BUDGETING FOR FEDERAL WATER PROJECTS (1997).

(144) U.S. Department of Interior, Western Water Policy Review Advisory Commission 48082 (Transcript of Denver Meeting, April 18, 1997) (on file with author).

(145) ROBERT ALAN KEITH, A BRIEF INTRODUCTION TO THE FEDERAL BUDGET PROCESS, CONG. RES. REP. at CRS-7 (1996).

(146) Michael C. Blumm, Public Choice Theory and the Public Lands: Why 'Multiple Use" Failed, 18 HARV. ENVTL. L. REV. 405 (1994).

(147) Id. at 418 (footnotes omitted).

(148) Id. at 420-21 (citing DANIEL A. FARBES & PHILLIP P. FRICKEY, LAW AND PUBIC CHOICE: A CRITICAL INTRODUCTION 19 (1991)).

(149) Id. at 422. Devolving resource management decisions to rural areas has another likely outcome. The disparity in support for environmental protection between rural and urban dwellers has been studied: "American urbanites consistently support environmental measures to a far greater extent than do rural dwellers." MARTIN W. LEWIS, GREEN DELUSIONS: AN ENVIRONMENTALIST CRITIQUE OF RADICAL ENVIRONMENTALISM 97 (1992) (citing voting records on environmental initiatives).

(150) See Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L. J. 1196 (1977) (providing a classic exposition of why national environmental mandates are more stringent than their local counterparts).

(151) HELEN INGRAM, WATER POLITICS: CONTINUITY AND CHANGE 6 (1990). Ingram contends:

[i]t is a well-accepted axiom in public policy studies that the quality of

policy decisions can be related to the availability of information and the

access of affected interests to decision-making processes. The best

decisions are made when the interests that potentially bear burdens and

enjoy benefits are informed and participate.

Id.

(152) This rationale is as current as the day's papers. See George V. Voinovich, The Clean Air War, N.Y. TIMES, Aug. 12, 1997, at A19 (describing the battle waged by the governors of eastern states over air pollutants from neighboring states); Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 MD. L. REV. 1141, 1156-57 (1995) (discussing the federal reaction to interstate pollution). Another rationale is based on the fear that, in the absence of national standards, states will engage in a "race to the bottom." A vigorous debate has been reopened over the accuracy of this fear. See Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992) (arguing that the race-to-the-bottom rationale has no basis); Kirsten H. Engel, State Environmental Standard-Setting: Is There a "Race" and Is It "to the Bottom?" 48 HASTINGS L. J. 271 (1997) (discussing game theory and the race-to-the-bottom to analyze Professor Revesz's arguments).

(153) This is not to say that the means by which species are protected could not involve states and tribes in a different fashion. See Migratory Bird Hunting, 50 C.F.R. pt. 20 (1996) (regulating migratory bird hunting through new methods).

(154) Proposition 204 authorized $995 million in general obligation bonds to meet a number of water needs, including implementation of the Central Valley Project Improvement Act, physical improvements to Delta infrastructure, wastewater, recycling, and drainage projects, and $390 million for ecosystem restoration in the Bay-Delta. CAL. WATER CODE [sections] 78684 (West 1966 & Supp. 1998).

(155) See California Biodiversity Council (last modified Jan. 29, 1998), available at <http://ceres.ca.gov/theme/biodiversity.html> (setting out California's habitat protection policies).

(156) This debate is raised in the relationship between the Northwest Power Planning Council and federal agencies. The Council has considered legislation under which its decisions would be presumed "consistent" with federal law, with federal agencies able to rebut this presumption.

(157) PUD No.1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700 (1994).

DENISE D. FORT, Associate Professor at the University of New Mexico School of Law. I have benefited from the generosity of many people who assisted me in thinking about western rivers and their human communities. Those who worked on the Basque Initiative and those who wrote the Bosque Biological Management Plan are gratefully acknowledged, as well as Professor Cliff Crawford, Jeff Whitney of the U.S. Fish and Wildlife Service, Michele Minnis, Ph.D., and Lawrence MacDonnell, of Boulder, Colo. This Article is an expanded version of a talk, "Restoring the Rio Grande," delivered at the University of Colorado, School of Law, Natural Resources Law Center, June 12-14, 1995. The conference proceedings are published as SUSTAINABLE USE OF THE WEST'S WATER, 1995. I serve as Chair of the Western Water Policy Review Advisory Commission, and discussions and research prepared for the Commission have also been useful in thinking about these issues.