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Federal-State Decisionmaking on Water: Applying Lessons Learned

October 2002

Citation: 32 ELR 11253

Issue: 10

Author: David J. Hayes

Water policy in the United States has been significantly influenced in recent years by a number of high-profile environmental and water use conflicts, including disputes relating to California's Bay Delta, Florida's Everglades, the management of the Colorado River system, the Columbia/Snake system, and the Klamath and Trinity River Basins. For a variety of legal, institutional, and financial reasons, the federal government has played a major role in all of these matters, typically in partnership with state and local stakeholders. This Dialogue provides a "lessons learned" perspective on the federal/state decisionmaking process in these major water policy disputes. It briefly summarizes key issues involved in the disputes, identifies important drivers in each conflict, and discusses the nature of the decisionmaking process, including the role of federal and state authorities, science, funding, and political support.

The Dialogue then looks across these high-profile disputes and draws a number of conclusions regarding the ingredients for successful resolution of difficult water-related conflicts in which federal and state authorities have a significant role. It notes that success often depends upon a mix of a strong triggering event (often a galvanizing regulatory or environmental development, such as the listing of an endangered species and/or a hard drought); significant public interest in the issue; personal attention by leaders that have the standing and wherewithal to deliver on promises; a close federal/state partnership; a heavy dose of science and money; and an opportunity for meaningful stakeholder involvement in shaping a solution. Typically, all of these requirements are needed to successfully solve large, difficult water-related conflicts, although the strong presence of one or two of the elements, e.g., personal leadership by high-ranking officials, can sometimes compensate for the absence of others, e.g., significant public interest in an issue. Failure is almost assured, however, when at least two of these elements are missing.

The author is a partner at the law firm of Latham & Watkins. He served as Deputy Secretary, U.S. Department of the Interior, during the Clinton Administration. This Dialogue is an adaption of a speech delivered by the author, David J. Hayes, Keynote Address at the Natural Resources Law Center International Water Conference in Boulder, Colo. (June 11, 2002).

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