Feds again trying to usurp historic state water rights

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dly , -•,.■ , es- To • at .,L/ - - _ .' ch Feds again trying Usurp , fit ' rights es- historic state water rig so iew flow policy seeks to overturn more than a :ify. By Wayne Allard and Scott McInnis century of water law. Bypass flow authority F zily would allow the Forest Service to blackmail i that When you survey the landscape of politics water users to surrender a portion of their id. and public policy in Colorado, few issues water rights as a condition for renewing land not compare in importance to water. Indeed, use permits for existing water facilities — a as you've lived in Colorado for any period of time pipeline or a ditch,for instance—on National ling at all,you know that in this great state water Forest lands. nd- is sacrosanct. It's our life-blood. And when For example,if a rancher uses a pipeline on 1 the outsiders start meddling with our water Forest Service land to obtain water for a cabin, ;ant resources — whether it's Los Angeles, Las under the bypass flow policy the Forest Ser- 1 m a Vegas or the federal government—they can vice could force that water user to surrender a•line and should expect a fight. significant share of his or her legally held 1 ent iurt 1( Such is the case with a new U.S. Forest water right as a condition for reauthorizing Service policy that seeks to give the federal the pipeline permit.At a practical level,if the ms' government de facto authority to strip water Forest Service is allowed to maintain this users of a significant portion of their water authority, existing water users will be denied ear rights. The policy, one of a litany of legally critical supplies without compensation, cgs, suspect pronouncements made in the waning including every Colorado community that ave weeks and months of the Clinton administra- gets its water from an existing reservoir. �ths ton,is known as"bypass flow"authority.And 1992,the Forest Service lost a court case�t is while its name might sound innocent enough, water court seeking what it is now trying to ling the policy's far-reaching implications have accomplish through administrative rule-mak- serious consequences for Coloradans. ing. In our estimation, this policy is a clear In our opinion, the policy represents the overreach that is without any legitimate single largest threat to water users in Col- foundation in federal statute or case law It also orado. More broadly, it promises to perma- is a marked departure from the policies of nently upset the time-honored preeminence every previous administration,.including for- of the states in their dealings with the federal mer Presidents John F Kennedy and Jimmy government on water-related issues. Carter.Every president over the last 100 years ring The underpinnings of Colorado's system for has honored the supremacy of state-sanctioned appropriating water dates back to the expan- water rights. its sion of the American West in the 1840s and In addition to being illegal, the federal c.If 1850s. As aspiring farmers and ranchers set- bypass flow restrictions needlessly duplicate n by tied the arid West, they learned quickly that actions already taken by the state of Colorado. g if the legal remedy of allocating water in the For the last 25 years, the Colorado Water lust East was wholly inadequate for the purposes Conservation Board has protected fish habitat rail- of divvying up water rights here.And so these and the aesthetic values of Colorado's aa's settlers established a legal framework for allo- streams and rivers by regulating instream TO cating the West's comparatively scarce water flow levels. Unlike the federal bypass flow resources, a legal process that has stood the program, the state's instream flow regime 008 test of time. protects riparian areas in a manner that hon- ner, Known as prior appropriation, the doctrine ors the doctrine of prior appropriation and all el a allocates water based on when an individual preexisting water rights.This is a fundamen- atic applies a given amount of water to a beneficial tal balance that the federal bypass flow miss- ;, use. So long as that beneficial use is main- es badly. ale tained, the water right remains. What that For hese compelling reasons we have end means in simple terms is this:Any new water both urged the Bush administration to re- rights are subject—and therefore secondary think the Forest Service's bypass flow policy nce in legal importance—to more senior(older) Like leading water experts throughout tilt i.s. water rights. This system was originated in West,we believe strongly that there is a wal ers, Colorado and adopted by other western states to protect the ecological values of our state', ied, in the late 1800s. rivers and streams without usurping th. nic, For 135 years, Congress has expressly legal rights of our citizens.The state of Cr ;ov- deferred to the states in matters related to orado has achieved this balance without fitly the allocation and administration of water interference of federal land managers. l,. rights. Instead of creating sweeping national our hope that the Bush administration w,_ — guidelines, Congress has largely let the allow that balance to be returned to Col- vith states handle water issues for themselves.In ,oradans. , _ Colorado,that has meant the doctrine of prior ;ted appropriation has reigned supreme. sen.Wayne Allard and Rep.Scott McInnis represent r. Unfortunately, the Forest Service's bypass Colorado in Washington.