WSP03125 - Laserfiche WebLink

Home Browse Search

WESTERN STATES WATER 002824 '\ ~F' ~ j- ~ ~ _ f I " "\ \ c, _") -j-~ / August 13. 1999 Issue No. ]317 o RECEIVE AUG 17 11 recycled paper conserves water Colorado Walel Conservation Boa THE WEEKLY NEWSLETTER OF THE WESTERN STATES WATER COUNCIL 942 East 7145 So, i Suite A-201 / Midvale, Utah 84047 / (801) 561-5300 / FAX 255-9642/ www,westgov,org/wswc Chairman .. Francis Schwindt; Executive Director - Craig Bell; Editor - Tony WiJlardson; Subscriptions - Julie Starn CONGRESSIONAL UPDATE Endangered Species Act The United States House of Representatives Committee on Resources held an oversight hearing on implementation of the Endangered Species Act (ESA) in Greeley, Colorado on JUly 24, 1999. Among the witnesses testifying was Bennett W. Raley of Trout & Raley, who has represented private landowners, local ,< . '\ governments, water districts, and a western state . .P regarding ESA matters. He focused on the issue of the relationship between federal uses of water for Endangered Species Act purposes and existing water rights and water allocation and administration systems. "This issue is not academic or hypothetical, as conflicts between water users and the Endangered Species Act have arisen in California, Oregon, Washington, Nevada, Arizona, Colorado, Wyoming, Idaho, Montana, Texas, Nebraska, Utah, and New Mexico," he stated. He drew attention to an "impending disaster In New Mexico because it orovides a look at what may lie ahead for other arid States like Colorado." He said, "New Mexico is faced with the distinct possibility that the implementation of the Endangered Species Act will destroy a substantial portion of its irrigated agriculture and make it impossible for the State to comply with Interstate Compacts that have been negotiated with other States and ratified by Congress." , He described the central issues as: (1) How will federal demands for the use of water for Endangered Species Act purposes be integrated into existing water allocation and administration systems which are based ", on state law, Interstate compacts, and equitable apportionment decrees of the Untied States Supreme Court; and (2) Can federal agencies simply take water from irrigated agriculture or muniCipalities in the West because the Endangered Species Act is so powerful? He said the answer to these questions is found in eXisting federal law - and in particular in the McCarran Amendment and the United States Supreme Court cases which have interpreted this statute. He said because federal agencies are unwilling to accept the water rights priorities that are established in McCarran Act adjudications, they are currently engaged in a concerted attempt to use the Endangered Species Act and other federal laws to control the use of water. For example, he said, the Forest Service asserts that it has the authority to impose bypass flow conditions on the operation of water facilities which are different from or inconsistent with its federal reserved water rights. Likewise, the United States Fish & Wildlife Service has attempted to use Sections 7 and 9 of the Endangered Species Act to reallocate water from those who own the water rights to federal environmental purposes. "Simply put," he stated, "if federal agencies can use the ESA and other federal environmental or land management statutes to control existinq and future water uses, the relative priorities to the use of water that have or will be established in the McCarran adjudications are meaningless." He argued that the Congressional decision that the McCarran adjudications must be all inclusive and comprehensive, and must include all federal claims to the use of water was deliberate. "The obvious reason for the unsuccessful opposition to the McCarran Amendment by the Department of Justice was that it recognized that the decrees entered in these proceedings would be a binding determination of the rights to the use of water for federal and non-federal purposes, and it feared that these decrees would allocate water to non-federal claimants and therefore limit the amount of water that would be available for use for federal purposes." I n response to the claim that the use of water by the United States for environmental purposes IS subject to