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

• Author: Fort, Denise D.

1. 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.

2. THE BOSQUE INITIATIVE

   1. 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...