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MORE ABOUT THE ENDANGERED SPECIES ACT

Dr. William M. Turner

In previous newsletters, I have discussed the potential impact of the Endangered Species Act (ESA) on the availability of water.  Of course, the more competition there is for water, the theory of supply and demand tells us that the supply will become more costly. 

The ESA is generally used by environmentalists to protect species of wildlife.  Now farmers are using it to try to protect their way of life. 

It is clear that, with regard to water, the ESA could be used to obtain in-stream flow for endangered species.  However, there are competing interests for the water (as we all know) and federal statutes that regulate competing interests must be completely neutral.  That is, they cannot favor one interest over another. 

In Bennett v. Spear, Oregon farmers are seeking to overturn water use restrictions that threaten their livelihood.  The argument seems to be that  a threat to their livelihood is a threat to their existence.  Whether or not the farmers of Oregon prevail, the contest for the staff of life goes on.  There can be no doubt but that, ultimately and unfortunately, in spite of the ESA, the highest and best use of water will be for domestic purposes. 

It would be well for federal and state regulators to be less concerned for protecting every habitat of every endangered species and rather protect those habitats now which are relatively unthreatened. 

The razorback suckerfish on the San Juan River is a case in point.  The habitat downstream of the Navajo Dam near Farmington, New Mexico is quite precarious.  The government is experimenting with adjusting the flow of the San Juan River by controlling releases from the Navajo Lake to bring back the habitat.  Now this is dumb because a dam is constructed for just one purpose: to totally change the natural flow of the river. 

Instead of carrying out habitat rehabilitation efforts downstream of Navajo Dam at great taxpayer expense, the feds would do well to protect the healthy, non-threatened habitat of the razorback suckerfish in the Upper Colorado River drainage upstream of Navajo Reservoir. 

Public Law 104-127 as amended by Public Law 104-180 created a Federal "Water Rights Task Force."  The Task Force was created in response to a controversy regarding the proposed use of federal land use authority to impose "bypass flow" requirements on existing water supply facilities on National Forest lands as a condition of renewal of land use authorizations.  However, the issues which Congress has directed the Task Force to address are much broader in scope.  The Task Force is to study and make recommendations on: 

• Whether federal water rights should be acquired for environmental protection on National Forest land; 

• The protection of minimum in-stream flows for environmental and watershed management purposes on national Forest land through purchase or exchanges from willing sellers in accordance with state law; 

• Measures that would be useful in avoiding or resolving conflicts between the Forest Service's responsibilities for natural resource and environmental protection, the public interest, and the property rights and interests of water holders with special use permits for water facilities, including the study of the Federal acquisition of water rights, dispute resolution, mitigation, and compensation.

Based on this, it is clear that the Federal government is going to become a stakeholder competing for water rights according to state law.  Any additional stakeholder entering the market is bound to affect the availability of water for agricultural, domestic, and commercial purposes and the value of water. 

The governments of all states in which the Forest Service has land have been asked to comment on this matter.

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