Over the past 40 years, the United States Congress has constructed a body of law aimed at salvaging fish and wildlife resources from the impacts of federal water resource projects—dams, canals, channelization, and their attendant improvements. These provisions and their amendments, known collectively as the Fish and Wildlife Coordination Act (FWCA),¹ call for "equal consideration" of fish and wildlife in project planning, close coordination between federal construction and fish and wildlife agencies,² reports on measures to compensate for fish and wildlife losses, and specific recommendations to Congress—the so-called fish and wildlife "mitigation plan." The implementation of these provisions over the past 40 years has been a rather unblemished history of failure in every branch of government.

The construction agencies have failed to consult. The wildlife agencies have failed to prepare mitigation reports. The construction agencies have failed to make mitigation recommendations to Congress which, in turn, has simply looked the other way.³ And courts of law, faced with bald violations of the Act, have commonly found compliance with its provisions judicially unenforceable.