Among all the rivers in the world, the Colorado River is among the most historic. The Colorado River basin drains water from seven states, is the largest watershed in the Southwest, and comprises roughly one-twelfth of the contiguous United States. Ten freshwater species of fishes have called this area home, but four are listed as endangered under the Endangered Species Act (“ESA”): bonytail chub (Gila elegans), Colorado pikeminnow (Ptychocheilus lucius), razorback sucker (Xyrauchen texanus), and humpback chub (Gila cypha).
Despite evolving and swimming in the upper Colorado River basin (the “Basin”) for more than three million years, these four fishes have the highest rate of jeopardy toward extinction of any fishes in the nation. Only five populations of humpback chub and two populations of Colorado pikeminnow exist in the Basin. Although hatchery restocking has occurred, there are no known populations of wild razorback suckers in the Basin and no known reproducing populations of bonytail in the world.
The Causes of Endangerment
While debatable to degrees, the causes of imperilment, extirpation, and extinction are certain and multiple: streamflow regulations (e.g., dams and reservoirs), water depletions, habitat modifications, pollution, non-native fishes, altered food webs, parasites, and even intentional poisoning. Piled on top of these “natural” issues are rights to water: property rights created by the Colorado Compact, federal laws, court decisions and decrees, contracts, and regulatory guidelines, known collectively as the “Law of the River.”
Conflict and Change
A major shift in environmental thinking led to passage of the National Environmental Protection Act and the ESA in 1969 and 1972, respectively. Soon after enactment of these laws, controversy became the central focus of the Colorado River. The Colorado River Water Conservation District sued the federal government challenging the listing of the Colorado pikeminnow and humpback chub as endangered under the ESA. Water developers challenged certain instream flow determinations by the U.S. Fish and Wildlife Service (“FWS”). By 1984, FWS had issued biological opinions concluding that nearly 100 specific water projects were likely to jeopardize the continued existence of endangered Colorado River fishes. By the mid-Eighties, application of NEPA and the ESA threatened to bring all development to a halt and simultaneously further endanger the Basin’s native fishes.
Realizing that litigation was the least attractive way to solve the myriad of problems, the FWS combined with other interested parties to form the Upper Colorado River Basin Coordinating Committee in 1984. Over the next four years, this committee sought to consider development and fish recovery from every angle. As a result of this committee’s work, a cooperative agreement and the Upper Colorado River Basin Endangered Fish Recovery Program (“Recovery Program”) emerged in 1988. In 2013, the parties to the agreement extended the Recovery Program through September 30, 2023.
The express purpose of the Recovery Program is to “recover endangered fish in the Upper Colorado River Basin while water development proceeds in accordance with federal and state laws and interstate compacts.” The Recovery Program has five key recovery elements: instream flow identification and protection, habitat restoration, nonnative fish management propagation and stocking, research and monitoring, and information and education. The Recovery Program is a conglomerate, informally known as “strange bedfellows,” consisting of thirteen federal agencies, three western states, water users, power users, and environmental groups.
The preeminent goal of the Recovery Program is to “downlist” the four endangered native species from endangered to threatened and, ultimately, to “delist” them. The FWS applies established criteria for downlisting and delisting each species. These criteria focus on a minimum number of distinct fish populations in distinct portions of the river system, minimum population sizes, and specific biological characteristics for each population. For example, the FWS will downlist the humpback chub when the agency can establish that, over a five-year monitoring period, the species has maintained six distinct populations (defined as “no net loss”) and has one core population in the upper and lower Colorado River basins greater than 2,100 adults. The FWS will delist the humpback chub when it can establish that, for an additional three year period beyond downlisting, the species has maintained the six populations, has two core populations in the upper basin of greater than 2,100 adults and has one core population in the lower basin of greater than 2,100 adults.
In 2002, the FWS predicted that downlisting the humpback chub could be proposed in 2007 and delisting could be proposed by 2010; downlisting the Colorado pikeminnow could be proposed in 2006 and delisting could be proposed in 2013; and downlisting the razorback sucker and bonytail chub could be proposed in 2020 and delisting could be proposed in 2023. As of 2012, anticipated downlisting for the humpback chub and Colorado pikeminnow has been pushed back to 2020 and 2018, respectively.
The Cost of Recovery
For the fiscal years 1989 to 2013, the Recovery Program expended $293,157,700. For this twenty-five-year period, the average yearly expenditure was $11,726,308. Applying the yearly average expenditure stated above to the next ten years, and not accounting for possible increases in expenditures or inflation, the total projected expenditure over thirty-five years in current dollars is $410,420,480. Combining the present value of the expenditures over the past twenty-five years ($519,614,165) with the future value of expenditures over the next ten years ($95,110,862), the total expenditure from 1989 to 2023 can be estimated at approximately $614 million in current dollars. This equates to over $153 million per fish species over the thirty-five year period, or over $4 million per species per year.
Who finances the Recovery Program? Historically, the U.S. Bureau of Reclamation and FWS (with annual approval from the U.S. Congress) contribute some 54% of the required funds. Power companies (e.g., dam operators) contribute 37%, states contribute 14%, and various other entities contribute 3%. Appropriators contribute only 1% toward the Recovery Program’s budget, and these payments go toward avoiding a jeopardy determination.
Success or Failure?
Despite twenty-five years of good intentions, one serious question remains: Has the Recovery Program been successful? The answer depends on who you ask. According to the Recovery Program itself, “With its demonstrated successes, the Upper Colorado River Endangered Fish Recovery Program has become a national model for its collaborative conservation efforts to protect endangered species.” Indeed, the Recovery Program provides ESA compliance for approximately 2,025 water projects depleting more than 3.7 million acre-feet per year. Quite remarkably, and likely due to the successful collaborative process, no lawsuits have been filed on ESA compliance for any of these water projects. John Loomis, a professor at Colorado State University, recently analyzed the social benefits of the Recovery Program. After conducting a detailed analysis and comparing the Recovery Program’s ESA compliance with “business as usual” (i.e., litigating ESA compliance), Professor Loomis concluded that the Recovery Program “yield[ed] $315 million in net cost savings over the two decades that the cooperative Recovery Program has been in place.” The FWS is charged with the responsibility of evaluating the Recovery Program and determining whether “sufficient progress” has been made toward recovery. Although the term “sufficient progress” is not defined in any of the Recovery Program agreements, the FWS has found “sufficient progress” every year.
Still, others cast a dubious eye upon the Recovery Program. According to author and attorney Robert Adler, “Stepping back from the details of the specific restoration efforts up and down the river, one thing is abundantly clear. For the most part, they are not working. Populations of endangered species continue to decline, despite years of study and planning and millions of dollars spent.” According to On the Colorado, a website that “delivers the latest news and views” about issues impacting the Colorado River, “bureaucratic bean counting is essentially why these fish suffer.” In 2006, the Post Independent reported that the FWS and Colorado Department of Wildlife’s practice of removing non-native sport fish as a way of encouraging native fish recovery “has outraged many.” Among the dissenters, former Colorado Wildlife Commissioner Rick Enstrom referred to the Recovery Program as a “boondoggle.”
Over the course of a quarter-decade, under the supervision of the Upper Colorado River Basin Endangered Fish Recovery Program, populations of four endangered fishes native to the upper Colorado River basin – humpback chub, Colorado pikeminnow, bonytail chub, and razorback sucker – have not increased significantly. On the other hand, and perhaps most importantly, they have not gone extinct, and no species is likely to be delisted before the Recovery Program celebrates its thirtieth anniversary. If success is measured by “extinction or not,” then the Recovery Program is clearly a success, at least at this point in time. Decades of imperilment have been halted, if not reversed. Alternatively, if success is measured by dollars spent, then over $4 million per species per year could be considered expensive relative to the nominal increases in species populations. Even despite the Recovery Program’s best efforts, a single natural or environmental disaster could devastate any of the four endangered species’ populations and preclude delisting. In the end, the success or failure of the Upper Colorado River Basin Endangered Fish Recovery Program will be measured by future, undefined, uncertain events.
Endangered Species Act, 16 U.S.C. § 1531 (2012).
Robert W. Adler, Restoring Colorado River Ecosystems: A Troubled Sense of Immensity (2007).
Gordon A. Mueller, Predatory Fish Removal and Native Fish Recovery in the Colorado River Mainstem: What Have We Learned?, 30 Fisheries 9 (2005), available at http://fisheries.org/docs/fisheries_magazine_archive/fisheries_3009.pdf.
John Loomis and Jeffrey A. Ballweber, A Policy Analysis of the Collaborative Upper Colorado River Basin Endangered Fish Recovery Program: Cost Savings or Cost Shifting?, 52 Natural Resources Journal 337 (2012).
John Weisheit, The Endangered Fish of the Colorado River Basin, On the Colorado (Jan. 1, 2009), http://www.onthecolorado.com/articles.cfm?mode=detail&id=1230799075869.
Eric Yonts, The reel deal, Post Independent (Aug. 16, 2006), available at http://www.postindependent.com/article/20060816/SPORTS/60816016.
Memorandum from Stephen Guertin, Region 6 Regional Director, U.S. Fish & Wildlife Service, to Implementation/Management Committee, Consultants, and Interested Parties for the Upper Colorado River Endangered Fish Recovery Program, p. 10 (June 11, 2011), available at http://www.riversimulator.org/Resources/USFWS/RIP/SufficientProgress2011June13.pdf.
Karen Hopfl, Case Study of The Endangered Fish Recovery Program of The Upper Colorado River (Feb. 1994) (unpublished manuscript), available at http://www.colorado.edu/conflict/full_text_search/AllCRCDocs/94-57.htm.
Tom Pitts, Upper Colorado River Endangered Fish Recovery Program, (Power Point presentation) (Sept. 15, 2006), available at http://www.crwcd.org/media/uploads/2006_Seminar_Mr_Pitts.pdf.
Upper Colorado River Endangered Fish Recovery Program, http://www.coloradoriverrecovery.org (last visited Jan. 12, 2014).
Upper Colorado River Endangered Fish Recovery Program, Implementing Innovative Solutions to Manage Water and Hydropower Resources While Recovering Endangered Species: Highlights 2012-2013, available at http://www.fws.gov/southwest/sjrip/pdf/20122013highlights.pdf.
U.S. Fish & Wildlife Service, Humpback Chub Recovery Goals, Amendment and Supplement to the Humpback Chub Recovery Plan (Aug. 1, 2002), available at http://www.riversimulator.org/Resources/USFWS/Recovery/Humpbackchub.pdf.
The title picture is of a bonytail chub. The picture is attributed to Haplochromis and is covered by the Creative Commons Attribution 2.0 Generic license. The use of this picture does not in any way suggest that Haplochromis endorses this blog.