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Let Free Market Approaches Cure the By-pass Flow Controversy <br /> By Attorney General Ken Salazar <br /> The current budget surplus gives the Bush administration a unique opportunity <br /> to achieve the instream flow protection sought for our federal public lands without <br /> using the heavy handed tactics of the past. Federal agencies in the past have used <br /> reserved rights litigation or its permitting authority to attempt to protect instream <br /> flows on federal lands. Too often these tools have threatened to upset decades of pre- <br /> existing water uses and the local economies that those uses support. The end result of <br /> these tactics is the enriching of some water lawyers and engineers, but little protection <br /> of the resource that was intended to benefit. All of that could change if the Bush <br /> administration would use the Land and Water Conservation Fund to purchase or lease <br /> senior water rights from willing private sellers. <br /> The members of the Water Congress are only too familiar with the attempts by <br /> various federal agencies to impose by-pass flows during the re-permitting or re- <br /> licensing of structures diverting from or passing through federal lands. This approach <br /> has endangered the yield of many municipal and irrigation water suppliers, years and <br /> even decades after those water rights first began diversions. Though the State is <br /> sympathetic to the water needs of our public lands, the by-pass flow approach is <br /> unfair, wrong-headed and must change if meaningful protection for our public lands <br /> is to be achieved. <br /> The good news is that there is a tool available that would allow federal land <br /> managers to discard the regulatory by-pass flow. The tool is the 900 million dollar <br /> Land and Water Conservation Fund. The Land and Water Conservation Fund <br /> (LWCF) is a special account created in 1964. While this fund has primarily been <br /> used in the past to acquire new recreation lands, the law creating the fund specifically <br /> authorizes use of the fund to acquire water. <br /> In the Forest Service's November 30, 2000, white paper concerning "Instream <br /> Flow Protection Strategies for the 21st Century," one of the ten tools mentioned for <br /> protecting instream flows through public lands was the purchase or lease of water <br /> rights from willing private sellers. This free market approach has been very <br /> successful in acquiring over 7 million acres of important recreational lands over the <br /> last 35 years. As public land mangers now turn more of their efforts in the Western <br /> United States from acquisition to stewardship of existing public lands, water takes on <br /> an increased importance. <br /> The Land and Water Fund accumulates revenues from federal outdoor <br /> recreation user fees, the federal motorboat fuel tax, surplus property sales and <br /> revenues from oil and gas leases on the Outer Continental Shelf. While the fund is <br /> authorized to spend up to 900 million dollars a year, Congress must authorize <br /> appropriations and if not authorized, the revenues remain in the U.S. Treasury. Large <br />