The Great Accomplishments and Uncertain Future of the Land & Water Conservation Fund

T. Destry Jarvis

Authorization of the Land & Water Conservation Fund Act of 1965 (LWCF) will expire on September 30, 2015 unless Congress takes action to extend the legislation. Enacted to create a source of federal funds for the purchase of private lands for outdoor recreation and conservation purposes, the LWCF funds two different accounts one for federal land agencies and the other for the States, Tribes, and territories. LWCF is itself funded from a portion of federal oil and gas leasing royalty payments, derived from leasing of submerged lands owned by all of us on the outer continental shelf (OCS) for off-shore drilling. The rationale for the LWCF is that as one finite public resource is permanently depleted (oil & gas), a percentage of the money derived from selling off what we all own should be allocated to buying land to serve as a permanent conservation legacy.

Funds from the federal side of LWCF have been used to conserve some of the most iconic and well-recognized sites in America. Funds from the state-side of LWCF granted annually to each State and territory, have acquired lands and built recreation facilities in all 50 States, the District, and five territories, including projects in some 98% of all Counties, and over 40,000 individual projects. But all of this could come to a halt unless The 1965 LWCF Act is extended. While there is bipartisan support in Congress for simple re-authorization (extend the sunset date), there is also strong opposition from key leaders in Congress. The Western public land states, which include the Chairs of the key Committees, oppose any more federal land acquisition.

A real irony of the current re-authorization debate is that when the sunset date passes on September 30, the only program that disappears is the state-grant program, since its entire authorization is contained in the 1965 Act, while each of the federal land management agencies has land acquisition authority fully independent of the LWCF Act.

A closer look at the political debate on LWCF
Congressional opponents of LWCF re-authorization argue that there is already too much federal land and that funds should be spent on maintenance of existing land and facilities rather than buying more land. In the alternative other members (depending on their geography) believe OCS royalties should go to coastal states to mitigate impacts of OCS drilling or that OCS receipts should pay for Payments-in-Lieu- of-Taxes in states with significant public lands.

Supporters defend the value of conserving land and increasing public recreational access. They also note that most federal acquisitions do not occur in Western States, but in east and central states, where federal ownership only averages 4% of the land in a State. On the maintenance question they note that new acquisitions are often for land that lack facilities and do not add to any future backlog. For federal lands most acquisitions are for lands inside of special management area boundaries that have already been approved by Congress for acquisition.

Another vulnerability of the LWCF Act is that it is not a true “trust fund, like the Highway Trust Fund (which relies on motor fuel taxes for its revenues) the funds for which cannot be diverted to other purposes. As a consequence, Congress has regularly diverted LWCF funds from their intended purposes.
For the past five years Congress had taken no action on the Administration’s request to full funding for LWCF at $900 million gradually move LWCF funds from the “Discretionary” budget to the “Mandatory” budget – to make a “trust” fund.

So what are the Next Steps?
The simplest solution would be to amend the sunset date, for some period, say 25 years. That can be done as a simple floor amendment to some other bill that is moving in the Congress, including the FY 2016 Appropriations bill, or some other “must pass” measure, such as the likely “Continuing Resolution” that Congress will need to enact when it does not pass the appropriations bills by September 30 of this year.

Next, but perhaps toughest to do in this budget climate, would be to make LWCF a “permanent appropriation” like the highway trust fund, so that the full amount authorized – currently $900 million annually – would be available for use every year.

Even a simple reauthorization has challenges. 1) Advocates for the Stateside of LWCF are adamant that the “no less than 40%” for the federal side be deleted from the law, and would prefer a 50-50% split between federal and state accounts. 2) Advocates for city parks, including some 50 big city Mayors for Parks, who rightly assert that city parks, which serve most Americans, have been systematically under-funded seek a 30-30-30% split – federal-state-local, with 10% being awarded to special joint projects.

Western State Members of Congress want to move PILT or the Safe Rural Schools program into LWCF so its funds would also be mandatory appropriation. Others have proposed that for the 11 Western States, any new federal acquisition could only be funded with funds generated through sale of surplus federal lands in those states.

It should be apparent that resolving the future of LWCF will take time, patience, and legislative skill, traits that have not been seen in abundance on the Hill even with the clock ticking away.

T. Destry Jarvis is the President of Outdoor Recreation & Park Services LLC