[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
HEARING TO REVIEW THE U.S. FOREST
SERVICE'S PROPOSED GROUNDWATER
DIRECTIVE
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HEARING
BEFORE THE
SUBCOMMITTEE ON CONSERVATION, ENERGY,
AND FORESTRY
OF THE
COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 10, 2014
__________
Serial No. 113-21
Printed for the use of the Committee on Agriculture
agriculture.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
89-799 PDF WASHINGTON : 2014
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COMMITTEE ON AGRICULTURE
FRANK D. LUCAS, Oklahoma, Chairman
BOB GOODLATTE, Virginia, COLLIN C. PETERSON, Minnesota,
Vice Chairman Ranking Minority Member
STEVE KING, Iowa MIKE McINTYRE, North Carolina
RANDY NEUGEBAUER, Texas DAVID SCOTT, Georgia
MIKE ROGERS, Alabama JIM COSTA, California
K. MICHAEL CONAWAY, Texas TIMOTHY J. WALZ, Minnesota
GLENN THOMPSON, Pennsylvania KURT SCHRADER, Oregon
BOB GIBBS, Ohio MARCIA L. FUDGE, Ohio
AUSTIN SCOTT, Georgia JAMES P. McGOVERN, Massachusetts
SCOTT R. TIPTON, Colorado SUZAN K. DelBENE, Washington
ERIC A. ``RICK'' CRAWFORD, Arkansas GLORIA NEGRETE McLEOD, California
SCOTT DesJARLAIS, Tennessee FILEMON VELA, Texas
CHRISTOPHER P. GIBSON, New York MICHELLE LUJAN GRISHAM, New Mexico
VICKY HARTZLER, Missouri ANN M. KUSTER, New Hampshire
REID J. RIBBLE, Wisconsin RICHARD M. NOLAN, Minnesota
KRISTI L. NOEM, South Dakota PETE P. GALLEGO, Texas
DAN BENISHEK, Michigan WILLIAM L. ENYART, Illinois
JEFF DENHAM, California JUAN VARGAS, California
STEPHEN LEE FINCHER, Tennessee CHERI BUSTOS, Illinois
DOUG LaMALFA, California SEAN PATRICK MALONEY, New York
RICHARD HUDSON, North Carolina JOE COURTNEY, Connecticut
RODNEY DAVIS, Illinois JOHN GARAMENDI, California
CHRIS COLLINS, New York
TED S. YOHO, Florida
VANCE M. McALLISTER, Louisiana
______
Nicole Scott, Staff Director
Kevin J. Kramp, Chief Counsel
Tamara Hinton, Communications Director
Robert L. Larew, Minority Staff Director
______
Subcommittee on Conservation, Energy, and Forestry
GLENN THOMPSON, Pennsylvania, Chairman
MIKE ROGERS, Alabama TIMOTHY J. WALZ, Minnesota,
BOB GIBBS, Ohio Ranking Minority Member
SCOTT R. TIPTON, Colorado GLORIA NEGRETE McLEOD, California
ERIC A. ``RICK'' CRAWFORD, Arkansas ANN M. KUSTER, New Hampshire
REID J. RIBBLE, Wisconsin RICHARD M. NOLAN, Minnesota
KRISTI L. NOEM, South Dakota MIKE McINTYRE, North Carolina
DAN BENISHEK, Michigan KURT SCHRADER, Oregon
VANCE M. McALLISTER, Louisiana SUZAN K. DelBENE, Washington
(ii)
C O N T E N T S
----------
Page
Schrader, Hon. Kurt, a Representative in Congress from Oregon,
opening statement.............................................. 3
Thompson, Hon. Glenn, a Representative in Congress from
Pennsylvania, opening statement................................ 1
Prepared statement........................................... 2
Witnesses
Tidwell, Thomas L., Chief, U.S. Forest Service, U.S. Department
of Agriculture, Washington, D.C................................ 4
Prepared statement........................................... 5
Submitted questions.......................................... 77
Willardson, Anthony G., Executive Director, Western States Water
Council, Murray, UT............................................ 31
Prepared statement........................................... 32
Submitted questions.......................................... 82
Shawcroft, Don, President, Colorado Farm Bureau, Centennial, CO.. 64
Prepared statement........................................... 65
Submitted questions.......................................... 87
Verhines, P.E., Scott A., New Mexico State Engineer, Santa Fe, NM 70
Prepared statement........................................... 71
Submitted questions.......................................... 90
HEARING TO REVIEW THE U.S. FOREST
SERVICE'S PROPOSED GROUNDWATER
DIRECTIVE
----------
WEDNESDAY, SEPTEMBER 10, 2014
House of Representatives,
Subcommittee on Conservation, Energy, and Forestry,
Committee on Agriculture,
Washington, D.C.
The Subcommittee met, pursuant to call, at 10:06 a.m., in
Room 1300 of the Longworth House Office Building, Hon. Glenn
Thompson [Chairman of the Subcommittee] presiding.
Members present: Representatives Thompson, Rogers, Gibbs,
Tipton, Crawford, Noem, Benishek, McAllister, Walz, Kuster,
Nolan, Schrader, and DelBene.
Staff present: Caleb Crosswhite, Nicole Scott, Patricia
Straughn, Tamara Hinton, John Konya, Lisa Shelton, Robert L.
Larew, Evan Jurkovich, and Riley Pagett.
OPENING STATEMENT OF HON. GLENN THOMPSON, A REPRESENTATIVE IN
CONGRESS FROM PENNSYLVANIA
The Chairman. Okay, everybody. Welcome. This hearing of the
Subcommittee on Conservation, Energy, and Forestry to review
the U.S. Forest Service's proposed Groundwater Directive, will
come to order.
Once again, good morning. I want to welcome everyone to
this hearing of the Conservation, Energy, and Forestry
Subcommittee to review the Forest Service's proposed
Groundwater Directive. And while the topic of water management
is absolutely critically important for all Americans, it is
especially so for our farmers, our ranchers in rural
communities who live off the land. As an example, water
management is of critical importance to western Members of this
Committee, given the scarce supplies that we have seen in
recent years.
Now, among the Forest Service's multiple-use mission, it is
essential to note that the two principal reasons specifically
articulated within the Weeks Act behind the creation of our
National Forest System was to regulate the flow of navigable
streams or for the production of timber.
In May, USDA issued for public comment a Proposed Directive
relating to the management of groundwater, non-navigable
streams, in our National Forest System. The proposal outlines
the Forest Service's justification for this policy and provides
detailed instruction for field staff in managing groundwater
resources. The proposal lays out the scope of acceptable
groundwater uses and establishes new processes and procedures
for special use authorizations that involve access to and
withdrawal of groundwater resources.
Now, I along with other Members of the Subcommittee, have
heard concerns from forestry and agriculture groups about the
scope, lack of clarity, and potential impacts if this Directive
were to be adopted as currently proposed. We have heard
concerns that the Directive could result in less management on
the National Forest System, more litigation, potential
preclusion of private water rights, and increased permitting
requirements for activities in the National Forest System.
For many Americans around the country that rely on National
Forest lands, these possibilities are beyond comprehension.
Several groups have questioned the legal justification used by
the Forest Service in putting forth this proposal. Multiple
groups have suggested that the Proposed Directive usurps the
existing authority of states to manage groundwater. There is a
wide range of management challenges affecting the health of the
National Forests including a lack of much-needed timber
harvesting which significantly contributes to ever-increasing
problems of wildfires and invasive species.
Now, I remain concerned that this Directive would create
more problems than it proclaims to solve and will further
undermine the ability of the agency to carry out its management
responsibilities. Now, I am pleased that the Forest Service has
extended--I am very appreciative that the Forest Service has
extended the comment period for another month to allow more
time for interested groups to weigh in on this proposal, and we
have before us expert testimony on this complicated topic, and
I thank them all for being here. And I want to welcome back
Chief Tidwell who has appeared before this Subcommittee on a
number of occasions and thank him for his service in the United
States Forest Service and to our country.
I have enjoyed our working relationship over the last few
years and look forward to continue to work together to find
ways to improve the health, the economic productivity, and
recreational opportunities within the National Forest System,
and we look forward to the Chief's testimony in offering the
agency's perspective about how this Directive came about and
why the agency believes that this Directive is necessary, and
fundamentally how the Forest Service believes it has actually
the legal authority to take this unprecedented move.
We will also hear from a second panel of witnesses who will
share with us their views on this proposal and any concerns
they wish to offer publicly, and this hearing is an opportunity
for Members of the Subcommittee to learn about this sometimes
complicated topic and engage our panel of witnesses.
[The prepared statement of Mr. Thompson follows:]
Prepared Statement of Hon. Glenn Thompson, a Representative in Congress
from Pennsylvania
Good morning. I want to welcome everyone to this hearing of the
Conservation, Energy, and Forestry Subcommittee to review the Forest
Service's proposed Groundwater Directive.
While the topic of water management is critically important for all
Americans--it is especially so for our farmers, ranchers, and rural
communities who live off the land.
As an example, water management is of critical importance to the
western Members of this Committee, given the scare supplies we've seen
in recent years.
Among the Forest Service's multiple-use mission, it's essential to
note that one of the principal reasons behind the creation of our
National Forest System was to promote the health and proper maintenance
of watersheds.
In May, USDA issued for public comment a proposed directive
relating to the management of groundwater in our National Forest
System.
The proposal outlines the Forest Service's justification for this
policy and provides detailed instruction for field staff in managing
groundwater resources.
The proposal lays out the scope of acceptable groundwater uses, and
establishes new processes and procedures for special use authorizations
that involve access to and withdrawal of groundwater resources.
I, along with other Members of this Subcommittee, have heard
concerns from forestry and agricultural groups about the scope, lack of
clarity, and potential impacts if this directive were to be adopted as
currently proposed.
We have heard concerns that the directive could result in less
management on the National Forest System, more litigation, potential
preclusion of private water rights, and increased permitting
requirements for activities on the National Forest System.
For many Americans around the country who rely on National Forest
lands, these possibilities are beyond comprehension.
Several groups have questioned the legal justification used by the
Forest Service in putting forth this proposal.
Multiple groups have suggested that the proposed directive usurps
the existing authority of states to manage groundwater.
There is a wide range of management challenges affecting the health
of the National Forest System, including a lack of much needed timber
harvesting, which significantly contributes the ever increasing problem
of wildfires.
I remain concerned that this directive would create more problems
than it proclaims to solve, and will further undermine the ability of
the agency to carry out its management responsibilities.
I am pleased that the Forest Service has extended the comment
period for another month to allow more time for interested groups to
weigh in on this proposal.
We have before us expert testimony on this complicated topic and I
thank them all for being here.
I want to welcome back Chief Tidwell, who has appeared before this
Subcommittee on a number of occasions.
I've enjoyed our working relationship over the last few years and
look forward to continuing to work together to find ways to improve the
health, economic productivity, and recreational opportunities within
the National Forest System.
We look forward to the Chief's testimony offering the agency's
perspective about how this directive came about and why the agency
believes this directive is necessary.
We will also hear from a second panel of witnesses who will share
with us their views on this proposal and any concerns they wish to
offer publicly.
This hearing is an opportunity for Members of the Subcommittee to
learn about this sometimes complicated topic and engage our panel of
witnesses.
I now recognize my friend, the Ranking Member, for his opening
statement.
The Chairman. And I now recognize my friend serving for
this hearing at this point as the acting Ranking Member for his
opening statement, Mr. Schrader.
STATEMENT OF HON. KURT SCHRADER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF OREGON
Mr. Schrader. Thank you, Mr. Chairman. I appreciate it. I
appreciate our panel and Chief Tidwell for being here to answer
some of our concerns. I hope that we will get a better
understanding of why the Forest Service is approaching
groundwater issues.
The biggest concern many of us have is the budget itself.
Forest Service budget itself seems always under siege.
Wildfires consume an ever-increasing amount of it. The ability
to actually manage our Forests is in question at this point in
time. So I am very concerned about taking on a whole other
initiative, no matter how well-intended. Where we are going to
get the resources? So with that, I am looking forward to the
hearing, Mr. Chairman.
The Chairman. I thank the gentleman. Let us welcome the
first witness to the table, our only witness for this first
panel, Mr. Thomas Tidwell, Chief of the United States Forest
Service, U.S. Department of Agriculture here in Washington,
certainly no stranger to this Committee, and welcome back,
Chief. I really appreciate you being here so that we could have
this hearing and have this discussion. So Chief Tidwell, please
begin whenever you are ready.
STATEMENT OF THOMAS L. TIDWELL, CHIEF, U.S. FOREST SERVICE,
U.S. DEPARTMENT OF AGRICULTURE,
WASHINGTON, D.C.
Mr. Tidwell. Okay. Mr. Chairman, Members of the
Subcommittee, thank you for the opportunity to be here today to
discuss our proposed internal Directive on how to deal with
groundwater and the issues that resolve around that.
Mr. Chairman, as you mentioned, this concept of healthy
watersheds, clean and abundant water, was one of the
foundational reasons for the National Forests. They exist today
to secure the favorable conditions of water flow for the
multiple uses and the benefits to sustain our economies and
also maintain the communities across the nation today.
Without a clear and publicly vetted agency direction, our
agency decision makers have a very poor defensible position to
be in when it comes to evaluating proposals that may impact
groundwater. These are our proposals, things that we have to
act on. And if we don't have a more systematic approach, this
is going to continue to lead to more public concern, more
controversy, and more lawsuits as the public expects and
demands more from management of the public lands.
So in May of this year, we put out our proposed Groundwater
Directive to provide a consistent and systematic approach to
evaluate and monitor the effects to groundwater from Forest
Service proposed activities. Now, we have extended the comment
period so that we especially have more time to be able to sit
down with the states and be able to discuss with them some of
the concerns that they have already expressed.
But I need to clarify a few key points of this proposal.
This Directive is not new authority. The Directive only
clarifies our existing agency authorities and provides a
consistent and systematic approach to evaluate the effects on
groundwater from new proposals on National Forest System land.
It is not a new regulation. We did put the notice in the
Federal Register because that is the format that we are used
to. It is what our stakeholders are really used to, and so that
is why we use the Federal Register.
It does not infringe on the states' authority, nor do we
infer that the Proposed Directive extends to the appropriation
of water. Although the term managed groundwater was used
frequently in the draft, we specifically mean to inventory and
evaluate the data and to be able to monitor the effects of uses
on the National Forests and Grasslands.
Now, part of our Proposed Directive is to be able to
strengthen our cooperation with other government entities,
states, and other Federal agencies when there is a proposal
that is adjacent to National Forests that we believe may affect
the groundwater on the National Forest. We will comment on it
if there is a process, but it is just a comment. This does not
infer that we have any authority beyond the National Forest
System lands. But if there is an activity that we feel may
impact the groundwater under the National Forests, may impact
water uses on the National Forest, we will comment to the
entity that is going to make the decision.
The Groundwater Directive does not impose any new
restrictions on mineral or oil/gas development. Our Proposed
Directives do not change the existing situation of what we
currently do when it comes to making decisions about minerals
management and oil and gas development
The Proposed Directive does assume that groundwater and
surface water are hydrologically connected unless it has been
demonstrated otherwise. This assumption is based on what we
believe is well-developed, scientific understanding but also
recognize that this is not always going to be the case, and
when it is not, that is a good thing. We identify that and we
can move on. I do want to point out that this is the approach
that many of the states also recognize--this interconnectivity.
This Proposed Directive does not change the existing
authorities of the states to allocate water and has no bearing
on state law for purpose of use allocation.
Mr. Chairman, Members of the Subcommittee, I understand
that water is a contentious issue. Our intention here with this
Proposed Directive is to make it a little less so by having a
consistent, systematic transparent approach. I believe we will
be better partners with the states to ensure that the public
continues to benefit from abundant, clean water, but also we
will be in a better position to defend our decisions as we see
more and more challenges coming from the courts.
We look forward to reviewing all of the input that has been
received on this proposal and already have heard ways to be
able to clarify and improve the Directive. Once we evaluated
all the comments, we will determine the path forward in the
content of the final Directive.
This concludes my oral remarks, and I will be happy to
answer any of your questions.
[The prepared statement of Mr. Tidwell follows:]
Prepared Statement of Thomas L. Tidwell, Chief, U.S. Forest Service,
U.S. Department of Agriculture, Washington, D.C.
Chairman Thompson, Ranking Member Walz, and Members of the
Subcommittee, thank you for the opportunity to provide perspective on
the role of the U.S. Department of Agriculture (USDA) in the
stewardship of water resources on National Forest System (NFS) lands.
Congress authorized the Forest Service to administer National
Forest System (NFS) lands and to manage the many uses of those lands,
including uses that have the potential to affect water resources.
Congress directed the Forest Service to manage NFS lands to secure
favorable conditions of water flow (Organic Administration Act of
1897), for navigable stream protection (Weeks Law of 1911), and to
mitigate floods, conserve surface and subsurface moisture, and protect
watersheds (Bankhead-Jones Act of 1935).
In addition, Congress has provided subsequent direction to the
Forest Service regarding water, watersheds, and the management of those
resources in a number of statutes, including the Multiple-Use
Sustained-Yield Act of 1960, the National Forest Management Act of
1976, and the Federal Land Policy and Management Act of 1976. To
implement these and other authorities, the Forest Service has
discretion over the ``formulation, direction, and execution of Forest
Service policies, programs, and activities (36 CFR 200.1(b)).'' This is
done in part through the issuance and revision of Forest Service
Manuals and Handbooks (together termed ``directives'') that guide
internal agency operations (7 CFR 2.7).
Water on NFS lands is important for many reasons, including
resource stewardship, domestic use, and public recreation. Today, water
from National Forests and Grasslands contributes to the economic and
ecological vitality of rural and urban communities across the nation,
and those lands supply more than 60 million Americans with clean
drinking water.\1\ NFS lands alone provide 18 percent of the nation's
freshwater, and over \1/2\ the freshwater in the West.\2\
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\1\ http://www.fs.fed.us/publications/policy-analysis/water.pdf.
\2\ www.fs.fed.us/pnw/pubs/pnw_gtr812.pdf.
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Groundwater plays a critical role in providing that freshwater,
serving as a reservoir supplying cold, clean water to springs, streams,
and wetlands, as well as water for human uses. Activities on National
Forests and Grasslands can impact the surface water, source water
drinking areas, and groundwater reserves for that water, including
major aquifers (United States Geological Survey Principal Aquifers)
such as: the Valley and Ridge aquifers in West Virginia, Virginia,
Tennessee, North Carolina, South Carolina, Georgia, and Alabama; the
Ozark Plateaus aquifer system in Missouri and Arkansas; and the
Colorado Plateaus aquifers in Utah, Colorado, Arizona, and New Mexico.
Through comments on specific proposed Forest Service decisions, and
through other avenues, the public has increasingly indicated that it
expects the Forest Service to review and address potential impacts to
groundwater resources as part of the analysis it performs to support
its decisions and actions. Many court decisions have indicated that the
Forest Service has a legal obligation to do so. Recent examples include
lawsuits in the States of Idaho and Oregon claiming that the Forest
Service conducted inadequate analysis of the potential impacts to
groundwater from proposed activities and a court remand requiring the
Forest Service to enhance its groundwater analysis.
The Forest Service currently desires to be more consistent in
evaluating the potential effects to groundwater from the multiple
surface uses of NFS lands and the role that groundwater plays in
ecosystem function on NFS land. Likewise, we would like to be more
consistent in evaluating proposals for activities on NFS lands that
could impact groundwater resources and that require Forest Service
authorization. The Forest Service plans to develop a framework to
comprehensively evaluate watersheds and water resources in order to
carry out its responsibilities to administer the NFS.
On May 6 of this year, the Forest Service published for public
comment a proposed directive on groundwater that will help the Forest
Service to establish a more consistent approach to evaluating and
monitoring the effects on groundwater from actions on NFS lands.\3\ The
proposed directive does not specifically authorize or prohibit any
uses, and is not an expansion of authority. Rather, it provides a
framework that would allow the Forest Service to clarify existing
policy and better meet existing requirements in a more consistent way
across the National Forest System. Specifically, it would:
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\3\ 79 Fed. Reg. 25815.
Create a more consistent approach for gathering information
about groundwater systems that influence and are influenced by
surface uses on NFS land and for evaluating the potential
effects on groundwater resources of proposed activities and
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uses on NFS lands;
Bolster the ability of Forest Service land managers to make
informed and legally defensible decisions, with a more complete
understanding of the potential impacts for activities on NFS
lands to and from groundwater;
Support management and authorization of various multiple
uses by better allowing the Forest Service to meet its
statutory responsibility to fully analyze and disclose the
potential impacts of uses or activities; and
Emphasize cooperation with State, Tribal and local agencies
and compliance with their applicable requirements.
The Forest Service recognizes and specifically acknowledges in the
proposed directives the role of states in the allocation of water use
and protection of water quality. The proposed directive would not
infringe on the states' authority, nor would it impose requirements on
private landowners. The proposed directive does not change the long-
standing relationship between the Forest Service and states and Tribes
on water. The Forest Service currently evaluates effects on groundwater
and surface water resources of activities on NFS lands by working
closely with state and Tribal agencies that have the responsibility for
the allocation and protection of water resources, and the Forest
Service will continue to do so in the future.
The purpose of the proposed directive on groundwater is to clarify
existing authorities and responsibilities and provide greater
consistency and accountability in how the Forest Service carries out
these obligations. By improving the agency's ability to understand
groundwater resources and manage activities on NFS lands, the proposed
directive would make the agency a better and more consistent partner to
states, Tribes, and project proponents, as well as to the downstream
communities that depend on NFS lands for their drinking water. By
restoring and maintaining healthy watersheds, the Forest Service helps
sustain these vital water resources upon which communities depend.
The Groundwater Directive does not impose new restrictions on any
uses, including oil and gas and other mineral development. The
Groundwater Directive defers to existing Forest Service Manual
Direction (Minerals and Geology Management--Chapter 2800) which
contains the Forest Service procedures for approving minerals
activities on NFS lands. States also have their own procedures for
approving minerals activities within the state.
Proposals to access federally-owned minerals on NFS lands require
approval from both the state and the Federal Government. The same is
true for proposals to access water on NFS lands. Access and occupancy
of NFS land is authorized and managed through our permit processes. The
proposed Groundwater Directive does not change that; it just makes it
clearer how the Forest Service plans to carry out that responsibility
so the agency can be more systematic and predictable for applicants,
state and local agencies, other users of water, and the public.
The proposed directive would provide transparent and consistent
direction for evaluating proposed Forest Service activities affecting
groundwater resources on NFS lands and for quantifying the nature and
extent of large groundwater withdrawals. It would also clarify
responsibilities for groundwater resource management at each level of
the Forest Service.
Through this proposed directive, the Forest Service would be better
positioned to respond to changing conditions, such as drought, climate
change, land use changes and needs for additional water supplies, in an
informed manner, while sustaining the health and productivity of NFS
lands and meeting new societal demands for resources in a responsible
way. Our goal is improve the quality and consistency of our approach to
understanding groundwater resources on National Forest System lands and
to better incorporate consideration of those resources to inform agency
decision-making. Establishing a consistent framework for evaluating
groundwater resources will also help to ensure that the Forest
Service's decisions are well informed and can withstand legal
challenge.
The proposed Groundwater Directive was published in the Federal
Register on May 6, 2014. Because of the widespread interest in this
proposal and our desire for active public input and feedback, the
original comment period was extended from August 4, 2014 until October
3, 2014, to allow more time to hear from states, Tribes, individuals,
and groups.
The agency looks forward to reviewing all the input received on
this important proposal. Once we have evaluated the comments, we will
determine the path forward and the content of a final directive. This
concludes my testimony, and I would be happy to answer any questions.
The Chairman. Thank you, Chief Tidwell. The chair would
like to remind Members that they will be recognized for
questioning in order of seniority for Members who are present
at the start of the hearing, and after that, Members will be
recognized in order of their arrival. And I appreciate Members'
understanding. I am going to defer--I will take the final
position for questioning. So at this point I am pleased to
recognize the gentleman from Ohio, Mr. Gibbs, for 5 minutes.
Mr. Gibbs. Thank you, Mr. Chairman. Thank you, Chief
Tidwell, for coming in. My question, I won't get into the
legality if the Forest Service has the legal authority under
the Weeks Act, but my concern is I want to do a scenario. Say I
am an adjacent landowner to Forest land property, and I am
looking to develop a shale oil and gas production. And we have
to go down through the water aquifer which the water aquifer
runs through Forest land, okay? The water aquifer typically--
well, in my area of the country--maximum depth is 300--150 to
300. The shale exploration in my area is 4,000 to 6,000, and
I represent the only connection that the shale and gas
production has to the water aquifer, which would be that
conduit, that borehole. As long as we meet all the requirements
that we are doing triple-casing, triple-cementing, seal that
off so it is not the conduit for the rest of the saltwater and
stuff to come up and pollute the aquifer or coming down from
the surface. Now, if the Forest Service is concerned about
groundwater, my concern is are they going to say, ``Well, you
can't do oil and gas exploration because there is a
possibility,''--even though in my opinion it is almost 100
percent remote contaminating that groundwater--I mean the
aquifer, if it is done right--``that aquifer flows into Forest
land.'' You know, under this Directive we can stop you from
doing that. And so can you expound on what I am trying to say
here?
Mr. Tidwell. Our Directive and our current authority--it
has got to stop. What it does is to disclose the potential
effects, and if there are opportunities to mitigate the impact
of those effects, to be able to pursue what is available under
our authorities and the current law if it is an operation that
is off the National Forest. All we will ever do is comment, and
if the state, whoever is the authorizing entity, have a process
to receive comments, we will send in a comment. But we have no
authority off Forest Service land.
For the other question, if there isn't this
interconnectivity, that is a good thing. There are definitely
places where there is separation between what is occurring on
the surface use from the groundwater, and we will document
that.
Mr. Gibbs. Well, I guess in the scenario I was laying out,
the interconnectivity would be the aquifer flows underneath my
property and the Forest land property. And so there is where
you could--and so if the Forest Service has a Directive to
say--let us just say in the future they have a policy, we are
not going to allow--we are not going to do any mineral
exploration or extraction on Forest land property and now the
aquifer flows through the neighboring property, so we are going
to fight you to stop that. That is I guess my concern. And I
would say there isn't really interconnectivity other than that
aquifer, and we are just going down through the aquifer and we
are meeting all the requirements to protect that aquifer. I am
just concerned about the expansion in the future, the Forest
Service using this ability to expand.
Now, I guess to follow through on that, what is the
position of the Forest Service now on--let us say we are doing
directional drilling on the shale, and they want to go under
you guys, and the Forest Service obviously has to sign a lease
to do that. What is the Forest Service's position on that now?
Are they allowing exploration on those instances where the well
is not on their property but signed leases to allow directional
drilling under their property?
Mr. Tidwell. If the area of the National Forest is leased,
we work with the leaseholder to be able to mitigate the
impacts. They can access the oil and gas resource and we have
many examples throughout the country where we have oil and gas
operations that have been in place for decades. We have also
been able to mitigate impacts also on groundwater.
A lot of this we have already been doing. What we find is
we have this inconsistent approach where one Forest is dealing
with it one way, another Forest is addressing it another way,
and then we get challenged in court. We have had a couple cases
out West where--these challenges were on mining proposals. The
court said, ``Forest Service, you did not evaluate the effects
of this proposal on groundwater.'' It didn't say you have to
stop it, but the court was very clear. ``Forest Service, you
need to evaluate what are going to be the impacts and to be
able to disclose those.'' When it is a Forest Service decision,
and we have an opportunity to mitigate the effects, that is
what we want to work on because that is what this is about. It
is not about allocation of the water. But if there is a chance
for us to mitigate the impacts by working together and which we
commonly do with many proponents already, that is what this is
about. It helps to put us in a more defensible position so
that--we are driving how our process works versus having
individual courts direct us about how to deal with this.
Mr. Gibbs. My time has expired, but I just want to--just a
quick comment is I am just concerned about the private property
rights adjacent to Forest lands and how that is all affected,
and I essentially just want to see this rule coming out of the
Army Corps of Engineers and the EPA and the jurisdictional
expansion of the waters of the United States that is the
fullness of my rationale here. Thank you, Chief.
The Chairman. Thank you. The gentleman's time has expired.
I now recognize Mr. Schrader for 5 minutes.
Mr. Schrader. Thank you, Mr. Chairman. I appreciate the
line of questioning that Representative Gibbs had, being
thoughtful about how we approach this, and just because you are
drilling through a certain aquifer, does that mean that it is
going to be regulated or cause some problems, even if there is
no contamination?
Along those lines then, what is the thought of the Forest
Service in terms of using good science to evaluate whether a
groundwater resource is being impacted? I assume there will be
testing, and if there is contamination, then and only then
would there be a regulation issued. Are there certain agencies
that tend to just issue blanket regulations on the off-chance
that something might occur as opposed to dealing with data?
What is your inclination, Chief?
Mr. Tidwell. No. There would be no blanket regulation or
anything like that. This is going to be on a case-by-case basis
based on the science, and when there is a potential to impact
the quality or quantity of groundwater, we need to evaluate
that and be able to share that with the public. And if there
are opportunities to mitigate it within our authorities, yes,
we are going to always work to be able to pursue that. If it
means a different way, a different location of the extraction
for instance, we are going to work on that. If it is dealing
with large mining operations to be able to look at ways to be
able to mitigate that as much as we can within the
authorities----
Mr. Schrader. But that would be----
Mr. Tidwell.--we will do that.
Mr. Schrader. What you would do would be based on a problem
you have identified as opposed to a potential one?
Mr. Tidwell. Yes.
Mr. Schrader. Okay.
Mr. Tidwell. Once again, this proposal is about having a
consistent approach to evaluate and monitor the effects.
Mr. Schrader. So a little line of questioning here. The
resources for the agency are limited, and while I think this is
an extremely important area for us to discuss with you, there
is another one that is definitely a problem and that is the
wildfire issue, out West in particular, but we see it wherever
lightning strikes. The wildfire issue is sucking the life out
of the Forest Service budget. It is my understanding that up to
70 percent of the Forest Service budget used to be for managing
National Forest lands, letting contracts, good forest health,
all sorts of projects that we used to be able to do. Now, my
understanding, Chief, is it is down to only 30 percent.
There is a bill out there, a bipartisan bill in both the
Senate and the House. Senators Wyden and Crapo, myself, and
Representative Simpson are trying to treat these horrific
wildfires, the few, the one percent of the wildfires that are
out of control and cataclysmic, as disasters, just like we do:
the flooding issues, hurricane issues, all that and trying to
restore your ability to keep your budget under control for the
most part. It wouldn't have any added cost. It would impact the
disaster budget just like any disaster would with no added cost
according to the Congressional Budget Office.
Don't you think it would be wise to prioritize the wildfire
aspect of this budget to try and give you the resources you
need? If you had to choose between the groundwater issue and
the wildfire issue, which is more important right now for your
budget, sir?
Mr. Tidwell. Well, if I had the flexibility to choose,
there is no question to resolve this issue around wildfire
costs. Congressman, I cannot thank you enough for your
leadership, to put forward the bipartisan legislation, and I
extend that appreciation to the Chairman and almost every
Member of this Subcommittee about your support to be able to
solve that problem.
There is just no question that conditions have changed on
the lands over the last decade plus, and the cost of fires
continue to go up. We will do whatever it takes to be able to
suppress those where we need to, but at the same time it has
had a really detrimental impact on the agency's ability to
manage, and as the Chairman mentioned in his opening remarks,
the need for us to do more to be able to restore the health of
our Forests, the resiliency of our Forests. So there is no
question that is a much more pressing issue.
This Proposed Directive, our intent with this was to
actually reduce some of the problems that we see coming: the
potential for a court direction that, in some cases, could
force us to do more than we really need to. That is what the
purpose of this is, actually to take this issue off the table
but at the same time allow us to really focus on what is really
a much more important, pressing issue for us to be dealing
with.
Mr. Schrader. Very good. Thank you, and I yield back, Mr.
Chairman.
The Chairman. I thank the gentleman. I now recognize the
gentleman from Arkansas, Mr. Crawford, for 5 minutes.
Mr. Crawford. Thank you, Mr. Chairman, and Chief, I
appreciate you being here today. USFS has claimed through the
comment period the public has indicated that it expects the
USFS to review potential impacts to groundwater resources. In
your opinion, does review also mean manage?
Mr. Tidwell. Once again, when we talk about manage, we are
referring to doing the inventory and monitor the effects of our
activities on groundwater. It is to be able to disclose those,
and when we are authorizing a surface use, if there is
something that can be done to mitigate the impact on
groundwater from our decision, we want to be able to disclose
what those impacts are, and then pursue ways to mitigate that.
And when there are no effects--and that is just as important as
anything--to be able to disclose that because we are often
challenged, especially when it comes to some mining proposals
and oil and gas proposals. We get challenged that effects of
this proposal are going to have more effects than we are
disclosing, and because we don't have a systematic approach, it
puts us in a more difficult position to be able to say, ``Well,
Your Honor, we have this approach and we have taken these steps
to be able to evaluate. We have done inventory. We have been
working with the states to understand the relationship here.
And based on our outcome of this, we feel that this proposal
has no effect.'' That is just as important or more so than in
those cases where we have the opportunity to be able to
mitigate the surface use in a way that has less of an impact on
groundwater.
Mr. Crawford. Okay. I am curious about the comment period.
Where have the majority of the comments during the comment
period come from or was it--is there a particular group or a
particular region or association or anything that were
particularly or especially represented?
Mr. Tidwell. Well, we have received comments from states
across the country. There has definitely been more from the
western states than maybe the eastern states, and we have
received comments from all sides of this issue, everything from
that we should stop this, the states can handle this issue to
you don't need to do anything to Forest Service as it carries
out authorities, you need to place more requirements, et
cetera, into this.
We tried to be very clear that this is not a rule. It is
not a regulation. It is our internal direction that we issue so
that we take a consistent approach to evaluate this. There is
no question on the comments that there are some things that we
need to change in here to clarify the intent. I mean, that is
one of the things that we have heard loud and clear. We have
had some good comments. We have had good discussion, that we
need to clarify it. And I go back to that one term manage that
we recognize without any question. We need to clarify that
because with some interpretation of the word manage, it means
more than what we intended. That is definitely one of the first
things that we are going to be working on.
Mr. Crawford. Okay. Did you get any comments during the
public comment period from any Federal agencies?
Mr. Tidwell. I would have to go back to check on that with
the group. We still have an open comment period, but I am not
aware of any at this point. But I am sure there is probably
going to be some.
Mr. Crawford. Is it pretty commonplace for other Federal
agencies to weigh in in public comment period?
Mr. Tidwell. It often is, depending on what the issue is
for us to receive comments.
Mr. Crawford. Do they get greater consideration than a
private citizen in your opinion?
Mr. Tidwell. They get the same consideration of all of the
comments that come in, whether it is from the states or from
individuals. We look at all of them as a way to be able to move
forward with this, to be able to clarify this, and at the same
time to make sure that we have a direction that can be followed
and understandable.
Mr. Crawford. You mentioned just a second ago in responding
that this was an internal Directive, and you said that we
issued this. Can you define we? Can you be a little more
specific?
Mr. Tidwell. It is the U.S. Forest Service.
Mr. Crawford. Okay. Is there an individual that directed
this? Was it you or was it a collective effort or----
Mr. Tidwell. This is mine. This is something we have
actually been working on for quite a few years, recognizing
that there was a need to have a consistent approach. It wasn't
as pressing as it is today because in the past we hadn't had as
much interest through litigation as we have seen recently. And
so it is something we have been working on for several years to
be able to put this forward.
Mr. Crawford. Several meaning what, 3, 4, 5?
Mr. Tidwell. I think some of our folks have probably been
working on this, thinking about this for probably more like 6
or 7 years.
Mr. Crawford. Okay. All right. Thank you, Chief. I
appreciate it. I yield back.
The Chairman. I thank the gentleman for yielding back, and
now we are going to recognize the gentlelady from Washington,
Ms. DelBene, for 5 minutes.
Ms. DelBene. Thank you, Mr. Chairman, and thank you, Chief,
for being here with us today.
I want to quickly go back to a little bit of the question
that Congressman Schrader had brought up with respect to
wildfires, and I just wanted to get a quick update from you
kind of what the state is right now of wildfires on Federal
lands and what you are seeing.
Mr. Tidwell. Well, Congresswoman, just a few weeks ago, we
were in a place where we had over 20,000 firefighters out, and
we were close to being in a position where we would not have
enough resources to respond to anymore new fires. Fortunately,
we had a very favorable weather pattern move in, especially
through your state. Through the Northwest, it has really
moderated the fire season to the point where today we are in
very good shape except the State of California where the fires
in northern California just topped over 100,000 acres yesterday
and some other Forest there in the Sierras. So the situation
has moderated.
A few weeks ago I sent out the direction for us once again
to stop activity so that we could prepare to transfer funds
from other program areas to be able to fund suppression. Now
with this moderation, we are now looking at having to change
that direction because we probably won't have to transfer
anywhere near what we thought we would have to. At the same
time, it has had an impact for a few weeks on our programs, and
here I am now having to call up my Regional Foresters and say,
``Okay, now with this favorable weather, what can we possibly
get done over the next 2 weeks here, 3 weeks in September?''
It has been very fortunate, but at the same time it has
been a problematic fire season, especially as you know in your
state with the hundreds of homes that have been lost there from
those fires. It is just another pressing issue. Once again, I
just appreciate everyone's support to be able to find a
solution to this issue so that we would no longer be faced with
this disruptive practice of having to stop operations to
transfer money.
Ms. DelBene. Yes. I have heard that there have been
challenges with OMB and how fire funding is allocated. Has
progress been made there?
Mr. Tidwell. I think we are working very well with OMB.
They understand the problem. They have been very supportive of
finding a solution. It was in the President's Budget Request
for this year, recognizing we needed to have a different
approach to dealing with some of the large fires, and that is
why the proposal--it is in the President's budget--merits or
tracks very well with the introduced legislation to recognize
that one to two percent of these fires need to be viewed as a
natural disaster and that we should be able to access emergency
funding to be able to pay for those, where the 98 to 99 percent
of fires every year will still be paid for within our budget,
just like it has been in the past. This would eliminate the
need to transfer money. So OMB has been very supportive to be
able to work with us and be able to talk to folks, to explain
about how this would actually work with the recognition that
this problem, over the years, has just gotten to the point that
it has really impacted our ability to carry out our mission and
be able to restore these lands and also provide for all the
services that the public expects.
Ms. DelBene. Let me move back to the groundwater issue, and
I wondered, are Tribes and states treated equally in your
Directive?
Mr. Tidwell. We do an additional consultation with the
Tribes on all of our proposals. We work very closely with the
states. We coordinate, we sit down and work with them. We do
the same thing with Tribes, but we also have an additional
formal consultation that we get to work with, for our tribal
entities.
Ms. DelBene. Okay. Thank you very much for your feedback. I
appreciate it. I yield back, Mr. Chairman.
The Chairman. I thank the gentlelady for yielding back. I
now recognize the gentlelady from South Dakota, Mrs. Noem, for
5 minutes.
Mrs. Noem. Thank you, Mr. Chairman. Hi, Chief Tidwell.
Thank you so much for being here today, and I appreciate all
the help that you have given me in South Dakota, with the Black
Hills and dealing with the pine beetle epidemic that has gone
on, and I know that you have a lot of wildfires and situations
across the country you are dealing with.
But this new Directive does have me really concerned, and I
have a letter here in front of me from the South Dakota
Department of Environment and Natural Resources, and I want to
tell you some of the concerns that they have. They are strongly
opposed to this new Directive. They cite lack of authority, at
the Forest Service, as one of the reasons for this Directive.
They believe it would expand the agency's responsibilities with
no Congressional oversight or deference to state water laws.
I want to read a few of the other concerns that they have
in their letter. Redundancy that would come forward as the
Forest Service taking part in these new actions in evaluating
water quality. Also they believe that delays and burdens to the
state permitting processes, that there is a lack of scientific
basis for groundwater ecosystems, a lack of due process, and
the one that probably concerns me the most is the lack of state
input.
One of the things that they brought out in their letter
that does concern me quite a bit and that you actually talked
about earlier in your testimony is that you came forward with
this Directive or that this is a result of lawsuits that you
faced in the past where you were found deficient in how you
evaluated water quality throughout the process. I believe that
from what I am interpreting the new Directive to say is that
you believe that that means you need to mitigate the effects of
what the activities are that you are taking. When you say
mitigate and manage, that that means taking action on your part
to deal with groundwater and groundwater quality, that you
don't have the authority to do so. And throughout this process,
there is no timeframe listed within the Directive that would
constrain you to making that evaluation process go forward.
There is nothing that says you are going to consult with any of
the state agencies who have always been responsible for
monitoring these water quality issues. You could potentially
burden these state agencies by questioning every single water
permit that is adjacent to or on Forest Service land.
You could see why this would alarm everybody who has been
in charge of this process in the past when you suddenly,
through a Directive, claim jurisdiction over something that you
have never been able to do before.
How would you anticipate dealing with some of these
concerns that some of these state agencies and people that live
in these areas have raised?
Mr. Tidwell. Congresswoman, first of all, one of the
reasons we extended the comment period is to have additional
time to be able to sit down, primarily with the states, to be
able to hear their concerns directly and be able to discuss
this. And as I have already stated, we recognize that based on
the comments that we received on this Proposed Directive that
there are some things we need to clarify, and we need to make
it very clear especially when we talk about manage. It is
talking about evaluating inventory of those effects. It has
nothing to do with the allocation of water. And so we need to
find ways to make that clear so that folks fully understand
that.
Of course we want to work with the states, and in almost
all of our states, we work very closely with them. If the
states are pulling this information together already and they
can share it with us so that as we make our decision, we can
include that in our analysis. That is very, very helpful.
Ideally, this will actually make us a better partner with the
states so that we will have a predictable process of the
information that we need to be able to evaluate the effects, to
be able to disclose those if there are effects or not, include
that in our analysis, and then be able to go forward with
implementing the project.
When we talk about mitigating, it is to mitigate where we
have the authority with the surface occupancy. It is not about
the water. It is about the responsibility that if we are
authorizing an activity and if there are some things that we
can do to mitigate the effects, whether it is on affecting the
quality of groundwater, it is not only something that we are
required to do, it is something that I would think, from what
we have heard, the public wants us to do that. But if we don't
know, that is where we have been really challenged. In some
situations we do not have a good process in place and we have
not pulled the information together. We haven't reached out to
the states to ask them because our Forests haven't had the
direction to say, ``Okay, how are we supposed to deal with
this?''
We have been all over the board on this, and that is what
has created the need to have this consistent approach. And yes,
there are some additional court challenges that we are having
to deal with, and that isn't the only reason for this. But it
is definitely one of the benefits that will come out of this
that will put us in a more defensible position.
Mrs. Noem. I am out of time. Thank you.
The Chairman. At this time I am pleased to recognize the
gentlelady from New Hampshire for 5 minutes.
Ms. Kuster. Thank you very much, Mr. Chairman, and thank
you, Chief Tidwell, and all of the witnesses here today.
Forestry is a very big deal in New Hampshire. It plays a
key role in the economy of our north country, providing timber
for builders, pulp for paper mills, and fuel to heat and power
our homes and businesses. We in the Granite State know that a
thriving, responsible timber industry is vital, not only to the
economic health of our state but to the health and longevity of
our beautiful forests. We are pretty fortunate that folks
understand this balance. Though I frequently hear from the
timber community about a number of challenges facing them, I
have not heard from them about this Groundwater Directive.
But what I do hear about, if I could take just a minute, is
the reference that you made to fires in the West, and I want to
be supportive of my colleagues. Actually, my brother lives in a
very small town, Twisp, Washington, that they spent an entire
month in fear that they would lose a beautiful home that he
built and everything that his family has worked for.
The challenge for us back East is when your budget is taken
over by the wildfires, we have delays in the Forest Service's
ability to effectively manage the National Forests and meet the
timber harvest goals. I have been hearing from a number of my
constituents in the timber and forestry sector about the
problem in meeting our timber harvest goals because they can't
get the Forester out to approve the cut.
If you would comment on that, and if there is anything that
we could do to be supportive so that you have sufficient
funding for the fires and supporting our timber industry.
Mr. Tidwell. Your point that the fires out West and the
cost of dealing with the suppression does also affect our
eastern Forests because when we need to stop operations, delay
operations, postpone operations to be able to transfer money,
it impacts everyone. You have seen it in your state, and often
Congress has been great to repay the money, usually within the
next 3 to 6 months. That is very helpful. But we lose out on
that field season, and in the case like in your state right
now, this is the prime field season for folks to be out there
prepping the timber sale, doing the surveys that need to be
done for this coming winter's work and also for next year.
So when we slow down and have to stop operations,
especially in this time of year, it really has the most effect
on next year's work. And that is why we just need to find a
solution to be able to stop this disruptive practice, and once
again, I just can't thank everyone enough for the recognition
and your support of this bipartisan, bicameral approach to be
able to resolve this once and for all. Congress tried to
resolve this once with the FLAME Act. This is not a new issue.
That didn't quite work out as intended. We believe that this is
a better proposal. It would actually solve this and allow us to
be more proactive, and that is the other benefit of this is
that it potentially would allow us to be able to invest more in
the restoration, restoring our Forests, restoring the Forest
health, and put us in a better position so that we reduce the
threat to communities, reduce the threat to your brother. I was
up in his community this summer. I talked to the folks up there
about how difficult a year they were having. That is the
benefit.
This proposal would help all of us, help every state in the
System. I just really appreciate how everybody has worked on
this. I know it is not an easy issue, but it is definitely one
that would be very helpful if we could get resolved.
Ms. Kuster. Great. You can count on my support, and thank
you. I yield back. Thank you, Mr. Chairman.
The Chairman. I thank the gentlelady for yielding back. I
now recognize the gentleman from Colorado, Mr. Tipton, for 5
minutes.
Mr. Tipton. Thank you, Mr. Chairman. Chief Tidwell, thank
you for taking the time to be here. One of the concerns that we
have, and I know you are well-aware of this. Out of the State
of Colorado, we are a headwaters state. Most of our water
obviously originates on Federal land. We have the complexity
that that water coming off perhaps Forest Service land may flow
through private land, on the BLM land, maybe even back onto
Forest Service land, so it is a very complex issue.
I know our state is always appreciated and in fact, demands
that the State Law 1876 when we were incorporated, as with
other western states, that water is a private property right.
We have state law. We have a priority-based system that we
expect to be respected. And the concern I would like to bring
up, given the Groundwater Directive that we are seeing out of
the Forest Service, when we couple this with the EPA waters of
the United States, we are seeing effectively, in my opinion,
the biggest water grab in American history in terms of our
ability to be able to grow our communities, to be able to
protect the interests of the State of Colorado. We have a
pretty good track record of being able to manage that.
What concerns me, Chief, and I would like you to be able to
speak to is in the Forest Service Manual it states your
employees claim water rights for water used by permitees,
contractors, and others to carry out activities related to
multiple-use objectives. This is in the manual. We now see the
Forest Service groundwater management directive, and it seems
to me that this literally doubles down on the policy to be able
to obtain water rights in the name of the United States. But at
this current time, this is massive groundwater management
policy that you are trying to put forward.
So given the scope of this overall policy, combined with
the Directive to obtain water rights under applicable state law
for groundwater and groundwater-dependent service of water
needed by the Forest Service, doesn't this effectively give the
regional Forest Service staff and the agency approval to go
after any water right rising off of Forest Service lands that
they deem necessary to carry out the broad objectives of the
manual?
Mr. Tidwell. This proposed internal Directive does not
infer anything into water rights, does not infringe on the
states' responsibility, their authority to allocate water. What
this is about is to evaluate and monitor the effects of our
actions on groundwater, and if there is an opportunity to
mitigate adverse effects, then we have the responsibility to be
able to pursue that with the surface occupancy where we do have
the authority.
When it comes to the multiple uses, for decades we have had
a policy in place where the best assurance we could provide the
public that multiple use would continue is that when water is
required for that multiple-use activity, the water would be
held for the public. There have been questions, and some of the
policies that we have had in place going back to the mid-1980s
and that we have worked with, like with the ski areas back in
the 1980s to put a term and condition on their permits in place
that work very well, had no adverse impact on any ski areas. In
2004, I personally worked with National Ski Area Association to
modify that clause so that it would work for everyone. We
thought we had it done. Then a few years later, we find that
once again, it wasn't in compliance with all state laws so we
sat down again to be able to modify that. And now we are to a
point where we are proposing a way to just keep the water tied
to the use. It is to protect the public and it is----
Mr. Tipton. But it does it kind of concern you, though,
Chief, when we are pursuing these policies? There is a threat,
and one thing you did not speak to is respect for the state
laws. There is case history for this throughout the western
United States. You weren't speaking to that, but when we are
talking about ski area permits, there is nothing in your policy
that protects actually the ski areas. You still speak in those
broad, general terms in terms of some of the agreement that is
coming out. And that is why we introduced and passed through
the House with bipartisan support the Protecting Our Water
Rights Act.
Mr. Tidwell. Without any question, we respect the states'
authority on water rights. That is one of the reasons that we
sat down to change the clause that we had in those permits, and
when you think about protecting the ski area, if water is
necessary for a use, and without that water that use can't
occur, that's a concern for the public. We authorize for any
activity on National Forests for the benefit of the public. If
the public can't benefit from that activity without having the
water, we feel that the water should somehow be tied to the
use, and if at all possible be available for future uses.
So whether something happens with a ski area, whether it is
no longer financially possible to operate, that is something we
of course would sit down and work with them. But in cases where
if there is a foreclosure, for instance, and the financial
institution needs to dissolve all the assets, it eliminates the
opportunity for the public to ever enjoy skiing on that area
again.
This is what we work very closely on is to find ways to
work with our partners, our proponents of these activities, to
find a way to provide the public assurances that when we permit
an activity, that we want to be able to maintain that for as
long as it is viably possible. That has been our approach on
water.
On the groundwater, again, it is not new authority. It is a
consistent approach so that we are a more predictable partner
with our states, that we can be a better partner with the
states, work with them, and have the information to be able to
answer the questions when we get challenged as to what is the
effect of groundwater, and of the Forest Service, on your
proposed activity? We have to be able to answer that. If not,
especially based on the last couple of court cases, we are
going to go back and have to redo the analysis.
Mr. Tipton. But with respect, it is important to note that
not one ski area has ever sold off its water. We had that
conversation, and you agreed with us on that. And there is real
concern from the farm and ranch community that we are now
seeing the Federal Government not only trying to be able to
control the water above but now below the ground, and this is
going to have a real impact, I believe negatively, potentially
on our communities. So I yield back.
Mr. Tidwell. And Congressman, to my knowledge, ever since
we have had the water clause in our ski area permits going back
to the mid-1980s, I am not familiar of any situation where
there has been a financial impact. And yes, I am not aware of
any ski areas selling off their water. But I also don't know
that because of that clause, maybe it prevented it. It would be
interesting to look at some of the foreclosures that occurred,
some of the bankruptcies that occurred over the years with ski
areas to just see.
The point is that we have worked very closely with the ski
areas, and we will continue to work with them to be able to
find a way that we can provide the assurances to the public
that the use will continue versus being in a position that the
day when the water is worth more, has more value, than the
operation of the ski area, that the water would be sold off or
used for a different purpose. Then the public loses out. And at
the end of a 40 year term permit, if the decision is for the
ski area not to go forward, well, then that is a good time to
have that discussion.
The Chairman. The gentleman's time has expired. I now
recognize the gentleman from Minnesota, Mr. Nolan, for 5
minutes.
Mr. Nolan. Thank you, Chairman Thompson. Real quickly I
wanted to commend you, Mr. Chairman, for calling this hearing
and suggest that we should have more of these. You know, there
is a great deal of concern about the long-eared bat, gypsy
moths, emerald ash bores, pine beetles. It would be nice to
hear more about the harvest on our Federal lands and the timber
sales and the percentage that are being harvested, the biomass
boiler rules that are under consideration. Others have brought
up wildfire funding and programmatic environmental impact
statements. There is such a wide range of things that we need
to start working on and dealing with here.
With that in mind, I would like to, Chief Tidwell, commend
Brenda Halter who is your supervisor up in northeastern
Minnesota. She does a wonderful job and is to be commended
particularly for her attention to the mixed use of Federal
lands including mining up in Minnesota's Iron Range. I want to
commend you as well for being here and being so forthright in
selecting the Christmas tree from the Chippewa National Forest.
I intend to be out there to help cut that tree down and escort
it to Washington. Having said that, I want you to know my wife
and I have planted over 100,000 in our lifetime, so we don't
apologize to anybody for cutting a beautiful one down and
bringing it to our capitol.
With regard to groundwater, my first and primary concern is
whether or not this rule will in any way damage the Pierian
Spring that exists along Highway 6 between the town of Outing
and Remer, Minnesota. There I go, misspeaking again. The
Pierian Spring was the fountain of knowledge, and we have been
drinking from that one out in Minnesota for over 100 years now.
It is right along the highway there, and if you haven't tasted
of it, I suggest you do, and perhaps it would be a good idea
for all the Members of Congress to go out and take a taste of
that spring. It is the one they say where drink deep or taste
not because there, shallow draughts can intoxicate the brain.
What I meant to say was the artesian spring which is in that
spot. I never drive by without taking an opportunity to take a
sip out of it.
But forgive me for going off on some tangents here. I just
couldn't resist. I do have a couple questions with regard to
groundwater, and I will just quickly throw them out there. One,
does this in any way affect the mining operations that we find
in the Upper Peninsula and the Iron Range of Minnesota? Is this
Directive in any way related to the waters of the United States
rule that was recently considered here? Does it treat livestock
water in any way differently than snow ski area water? And are
the Tribes in the states treated equally in this Directive? I
know there are a whole bunch of questions. Take whichever one
you want in the time we have and see if you can give us some
answers here. Thank you.
Mr. Tidwell. Well, I will start with the waters of the
United States. You know, this is our internal Directive to
carry out our authority. There is really no connection with the
EPA, their proposed rule.
On grazing, it doesn't make any changes from what we are
currently doing. You know, permitees apply through the state
for their water rights. If they have a well and they have to
close that well, they follow through with the states'
requirements on that.
On mining, there is no additional regulations or anything
put into place. It just provides a more consistent approach. In
your state, there are a couple of examples on the PolyMet
proposal. We are working together with the State of Minnesota,
D&R, and others to be able to do the analysis on the effects of
groundwater from that proposal so that the state has the
information to make their decision and we have the information
to make our decision. On another proposal in your state with
Twin Meadows, that proponent, even though it is very early in
the stage, they recognize the concern around this. We have
authorized the drilling of some deep wells in the area that
they are proposing to mine so that they can collect the
information to be able to understand how their project could
potentially affect groundwater. And so there is a case where
two proponents on two different proposals recognize that this
is a question that needs to be addressed, and either the state
needs the information or in this case, the Forest Service. So
by working together, this is the best scenario so that we both
have it. We have the same information. We can both use the same
information to make our decisions.
Mr. Nolan. Thank you, Mr. Chairman. Thank you, Chief
Tidwell, for the great job you are doing over there at Forest
Service.
The Chairman. I thank the gentleman, and I now am pleased
to recognize the gentleman from Michigan, Mr. Benishek, for 5
minutes.
Mr. Benishek. Thank you, Mr. Chairman. Thank you, Chief
Tidwell, for being here this morning. I have a couple of issues
that I want brought up, and frankly, my concern is that you are
having a tough job doing the job you have already, and to me
this is adding more to your work list. The procedure works now
as I understand it, the Forest Service works with the state as
an interested party and when the state develops its groundwater
regulations and stuff.
So I don't see why this internal Directive is needed since
you already have input. And a couple of things had come to me
in your testimony. You cited the Weeks Act as giving the Forest
Service authority to mitigate floods and conserve water and
surface and subsurface moisture. So what are the examples of
mitigate? I mean, what does that mean? How is that not
happening now with your conversations within the various
states?
Mr. Tidwell. Well, an example of mitigation, if there is a
surface occupancy of the National Forest that is being
proposed, and it is going to have some effect on the quality of
groundwater, if there are things that we can put into place
whether----
Mr. Benishek. Give me an example. Give me some examples by
what you mean, mitigate.
Mr. Tidwell. Okay. As far as where the disturbed area is
going to be, if it is going to be on top of a spring versus
moving it away from that spring to put it over in another place
so that that spring----
Mr. Benishek. That would not be addressed by the procedures
that are in place now?
Mr. Tidwell. Exactly. The only difference here is to have a
consistent approach.
Mr. Benishek. I don't see that people can build on top of a
spring right now.
Mr. Tidwell. That is one example. Another example is that--
referring to----
Mr. Benishek. That is not an example that works, though,
Chief.
Mr. Tidwell. Okay. So with the mining proposal, the
proposals in Minnesota, we are working with the proponents in
the state to evaluate the impacts of groundwater. We had a
couple situations out West in two other states where we had a
mining proposal, and we didn't do that. The court then directed
us and said, ``No, Forest Service. Stop. Do not authorize that.
Go back and do the analysis.''
Mr. Benishek. But don't you usually participate with the
states? That is more of a--to me, that is more of an oversight
area for you rather changing the way you do things. It is just
that you didn't do what should have been done already.
Mr. Tidwell. But our employees benefit from having
direction in their manual about what is their responsibility--
how do they do this--so that we have a consistent approach.
Mr. Benishek. I understand that, Mr. Tidwell.
Mr. Tidwell. And that is----
Mr. Benishek. What I am----
Mr. Tidwell.--the difference----
Mr. Benishek.--concerned about----
Mr. Tidwell.--we are trying to make.
Mr. Benishek.--is the fact that, when we give the Federal
Government more authority to do things, then they tend to
override the local concerns because we are seeing this in the
Natural Resources Committee with this Endangered Species Act.
Several states out West put together a plan in conjunction with
the Fish and Wildlife Service, worked with them for a long time
to develop a plan for this prairie chicken. And then all of a
sudden, the Fish and Wildlife, after approving the plan and all
that, changed their minds at the last minute and disapproved
all that. And I just don't like giving more Federal authority.
I mean, you are already in the process of working with the
states. Why isn't that good enough?
Mr. Tidwell. Because we don't do it consistently across
the----
Mr. Benishek. That is not a problem with the law. That is a
problem with your agency. And I am saying that this is a
problem with taking on more jobs.
Mr. Tidwell. Well, that is why this is an internal
directive to the agency--to have a systematic, consistent
approach so that we are better partners with the states so that
we do a better job to cooperate with the states based on the
examples I have given and then also in places where we have not
done this.
And so it is difficult with everything that we have on our
plates, for our land managers to be able to understand, okay,
when it comes to groundwater, what do we need to do?
Mr. Benishek. Let me just ask one more question. In your
written testimony it says through comments on specific proposed
Forest Service decisions and through other avenues the public
has increasingly indicated it expects the Forest Service to
review and address the potential impacts on groundwater. What
other avenues are you talking about?
Mr. Tidwell. For instance, if there is a proposal that is
adjacent to a National Forest and it has the potential to maybe
impact groundwater on National Forests, the opportunity we have
to be able to submit a comment to that entity who is regulating
that authority.
Mr. Benishek. It says comment through other avenues the
public has increasingly indicated. So what other avenues does
the public have to comment on your decisions besides the
comment period we are talking about?
Mr. Tidwell. So on the Proposed Directive, when we actually
would then go to use this and evaluate it on a project, the
public also has the opportunity to comment on that.
Mr. Benishek. Well, it doesn't seem like you are answering
the question, but I am out of time. Thank you.
The Chairman. The gentleman yields back. I now recognize
the Ranking Member from Minnesota, Mr. Walz, for 5 minutes.
Mr. Walz. Well, I thank the Chairman, and thank you for
indulging me to be at a markup on VA. Chief, thank you for
being here. I appreciate your work and your agency's work, and
I think you are hearing it here. We know you have a lot on your
plate. We know you have to multi-task on a lot of things.
Something I would say, though, is we are the Subcommittee
on Conservation, Energy, and Forestry. We have not held a
hearing on wildfires since 2010. During that time, 25.7 million
acres have burned, and over 200,000 incidents have burned. I
might mention to the gentleman in Colorado, the Hayman and
Missionary Ridge fires together cost $380 million for
suppression and direct cost to those. Those are real things
that really happened, that are happening now, and I do not
disregard the importance of every issue we talk about here. But
we must prioritize. We must move things forward. When I hear
you say and I hear Secretary Vilsack come to me 9 weeks ago and
say you have to do something because it is impacting our budget
across the board and how it impacts southern Minnesota. You
just told us that a more predictable budgeting measure is the
weather for you, when a weather turned a favorable direction.
That was more predictable than the actual budget.
I would just like to ask, let us have a hearing on
forestry, too. I think we could probably all agree. We can do
this one, we can do that, we can address some of these issues.
The questions are valid. There are concerns that are being
expressed. I will have to say, I have not heard groundwater
concerns from my people, but it doesn't mean they are not
important. And I understand water issues are regional. While an
issue in California, I had an abundance of water in my
district. But as a nation, these issues can't be done, and I
would also, as someone who grew up in western Nebraska knows,
that as Colorado's water rights goes, so goes Nebraska's water
rights. And they end up in court. Kansas just received a lot of
money a while back because of that from the State of Colorado.
These are issues that must be discussed federally. They
must include inter-agency collaboration. They must include the
ability of us to be able to express this. But I am deeply
concerned that not enough foresight was given. Secretaries and
chiefs of the Forest Service came to us over 2\1/2\ months ago
and said let us do something different on wildfires and get it
going, and we have sat silent. That is unacceptable, and I want
you and your agency to know, it is not for the lack of you
telling us, that we have heard you on it.
My question to you is, Chief, can you help me a little more
specifically? This helps me when I go home and talk to people.
Secretary Vilsack was able to help me out and understand. On
these budgeting shifts, tell me what it means. If the wildfire
season had not shrunk to these eight major fires you are
fighting now, if we had had 16 to 20, how would that have
impacted other operations? What would that look like at
Superior National Forest or Chippewa or things like that?
Mr. Tidwell. On your Forests, we would have had to stop
many of the operations during the month of September. For
instance, folks that are out doing surveys, preparing for
projects, prepping for timber sales, that would actually be
implemented in the winter, that work would stop. That is what
we had to do in previous years. This year looked like we were
headed there again, and now with the favorable weather, we are
doing almost an about-face. I was talking to our folks
yesterday that now it looks like we are going to be okay or
just have a minor transfer we are going to have to do, and so
what can we get done--
Mr. Walz. Did they stop? Did they start pulling those
things back? Because those things can't happen in a Minnesota
winter if----
Mr. Tidwell. Yes----
Mr. Walz.--work was put off.
Mr. Tidwell.--they did. I sent out the direction to be
prepared with a list of steps that we needed to take to be able
to stop or we had the option to defer, and for the most part,
we deferred these projects. But we lose that field season, and
then thus, we are not able to get the work done this coming
winter and especially in your state where we are able to do a
lot of the special timber harvesting in winter.
Mr. Walz. Could you help us understand, and I think this is
a fair critique of this, of saying, ``Okay, we were going to
budget and we gave you the money, and then you didn't use it.''
I think there is legitimate fear of some people saying would
that money have come back? What does it mean when you are
talking about and Secretary Vilsack is talking about emergency
funding, tell us how that can protect taxpayer dollars while
making budgeting more predictable for you.
Mr. Tidwell. If we don't use the funding for fire
suppression, it is still available. It is available for the
Appropriations Committee to appropriate it the following year.
But we do not spend it. We cannot spend it on anything else. So
if we have it, then it allows us to be able to carry out the
direction of Congress when they pass a budget, and that is the
direction we take very seriously. We are not able to carry that
out the last 6 weeks or so of the year because we have had to
transfer money. It just creates this disruption. It doesn't
cost anything more. It is just as I have mentioned, Congress
has been very responsive to pay the money back 3 to 6 months
later. And so we just lose that field season, we postpone
projects, and we can't ever make up that time because can
only--
Mr. Walz. It makes--
Mr. Tidwell.--get so much work done in a 12 month period.
Mr. Walz. So is it safe to say it makes you much more
inefficient?
Mr. Tidwell. Yes.
Mr. Walz. Okay. I yield back.
The Chairman. I thank the Ranking Member for his questions
and for yielding back, and now I am pleased to recognize the
gentleman from Alabama, Mr. Rogers, for 5 minutes.
Mr. Rogers. Thank you, Mr. Chairman. In your testimony you
referenced major aquifers. What is the difference between a
major aquifer and a minor aquifer and how does the Proposed
Directive affect both?
Mr. Tidwell. Well, when we talk about a major aquifer,
these are more of the large collections of water that usually
are much deeper but not always much deeper versus more of a
minor aquifer. Often, our surface activities are probably going
to have a greater potential impact on more of these minor
aquifers that are closer to the surface than maybe a deep
aquifer, but at the same time, those are the things that we
have to be able to understand and be able to disclose. Often we
get challenged that, ``Okay, your activity is going to affect
the quality of the groundwater, and I get my drinking water out
of that.'' It is essential for us to be able to show that,
``No, what we are proposing here is not going to have any
affect or, if it is, we disclose that.'' And if there is an
opportunity to be able to work within our authorities to be
able to mitigate the effects, then we need to be able to do
that. But much of this issue is about not knowing, and so when
we can disclose what the effects are or that there are no
effects, it puts us in a better position to be able to
implement the action, and it is actually reassurance to the
public. And yes, we want to work closely with the states, and
in many cases, that is exactly what happens so that we do this
together. This is information the states need to be able to
make their decisions, and it is the information that we need to
be able to make ours.
Mr. Rogers. Let me ask this. Under the Directive, could the
Forest Service reduce access to a water right if a proposed
activity might adversely affect the National Forest Service
groundwater resources?
Mr. Tidwell. It could change the access point if there was
a need to mitigate the impact, and by doing that, by changing
the access point, that could happen. That happens now.
Mr. Rogers. Okay, so there is nothing different then?
Mr. Tidwell. There is nothing different except this would
be a consistent approach so that the proponent in your state is
going to be treated the same way the proponent would be in
Colorado or in Pennsylvania. That is the difference that we are
talking about.
Mr. Rogers. The Forest Service has claimed through the
comment period that the public has indicated it expects the
Forest Service to review potential impacts to the groundwater
services. In your opinion, does the word review also mean to
manage?
Mr. Tidwell. Both terms mean to evaluate the effects and in
some cases, to monitor the activity. When we talk about manage,
we talk about----
Mr. Rogers. Well, you all used the word review. I used the
word manage. So I am wondering if you see them as the same
thing.
Mr. Tidwell. What it comes down to is inventory, evaluate,
and monitor, and that is one of the points that I mentioned
earlier that we use the term manage multiple places in the
draft Directive. We received many comments on that, but that is
not a clear term. It means different things, and it can be.
That is one of the things we definitely are going to work with
the states to be able to be very specific on what that means so
that folks don't think that it is managing, like when it comes
to allocation of water. That is not what this is about.
Mr. Rogers. Where did the majority of the comments during
the comment period come from? Were they specific regions of the
country, associations, or what?
Mr. Tidwell. Probably the majority of them are from the
West. We have had a lot of comments from states, comments from
user groups, some comments from environmental groups,
conservation groups. But we have had a lot of comments from our
states. It is one of the reasons why we wanted to extend the
comment period, so we would have additional time to actually
sit down and say, ``Okay, we received your initial comment. Now
we want to talk about it.'' So we make sure we understand and
see--so we know what we need to do to clarify this. The intent
of this is to be a better partner with our states. This is
something we need to work very closely together on, and we want
to make sure whatever it takes that we clarify that this does
not infringe on the states' responsibility, the states'
authorities in any way.
Mr. Rogers. Thank you very much. My time has expired. Thank
you, Mr. Chairman.
The Chairman. I thank the gentleman. Chief, I take the last
5 minutes here, so I really appreciate you being here and your
candid responses. I think you are a great partner to work with
for the health of the United States Forests and what that means
for Forest health and quite frankly, our rural communities in
particular. So thank you for that.
And normally, we are on the same page. We are not on this
one. You know, your goal--I think your goal is admirable, but
it is not the Forest Service's role, my perspective. I think
the Forest Service has interest. There is no doubt about it,
but you clearly do not have authority. The primary authority is
the states, and that is based on 100 years of legislation,
including the Clean Water Act that establishes the federalism
model of which the states' authority for water and the Weeks
Act which clearly talks about navigable waterways, that makes
sure the regulation flow, nothing about groundwater and new
case law that has been as far as the Supreme Court on this
issue.
And so I really see a very weak case which means you go
forward with this, you are going to get peppered with what you
always get peppered with which is more lawsuits which is going
to drain more money out of management of our Forests in a
healthy way. I really encourage you to reconsider as these
final comments come in because I think it is going to make your
job tougher and almost where this will go from a litigation
perspective. You know, the case law defines and upholds the
states' sovereignty, and I would argue that the separation of
water of states in terms of surface and groundwater is an
important part of the checks and balances, especially in
western states where the Forest Service, ``owns so much
surface''. This is actually one of the few checks and balances
the western states have in terms of having the groundwater
authority which forces the Forest Service--we don't always get
great chiefs like you, but you know, it forces the Forest
Service to be a collaborative partner with our states. I think
this is one of those checks and balances that does that.
Now, my first question is straightforward. I am pretty sure
I know how you are going to answer this, but I can't help but
ask because it looks like a taking. Is this not a taking, when
instead the Forest Service should be working on improving the
collaboration with the authority that has primacy on this
issue, which is the states?
Mr. Tidwell. No, it is not. It, once again, does not
infringe on the states' authority when it comes to allocation
of water and water rights in any way.
What this is about is that when we are considering an
activity on the National Forest, if it has the potential to
affect groundwater, we need to evaluate what those effects are,
disclose that to the public so that we understand. For
instance, if there is a proposal that would be a large
extraction, and based on the analysis that it will de-water all
these springs that are higher up in the watershed, de-water
this stream, people that have water rights up there are going
to be impacted.
It may be that we have no discretion on the activity, say
if it is for mining, for instance, we are somewhat limited
there. But we need to be able to disclose that. This is the
information that the states want. I think this is the
information the public wants.
The Chairman. Well, you have been peeking at my questions,
Chief. That was perfect because I agree that somebody needs to
be concerned with that, but the primacy needs to come from the
authority that has responsibility over the groundwater.
So my question has been--because you are speculating. You
gave me a what-if. We don't make policy based on speculation
because we could sit here and I could get a doomsday proposal
from every Member of what could go wrong. We need to deal with
data and science.
So my question for you is what data demonstrates that there
has been significant harm, and that is the term that is
important, significant. There are anecdotal things that may
occur from time to time, but I mean really consistent and
significant harm to warrant this Directive. Have the states
that have authority and responsibility for groundwater clearly,
by law--and you have acknowledged that and I appreciate it. I
mean, we are just talking about how do we work together, and I
just want to put the states at the point of the spear versus
the Forest Service because legally, that is the way it needs to
be. But there needs to be collaboration between the two. Have
the states that have authority and responsibility for
groundwater filed complaints or lawsuits regarding
contamination of groundwater from Forest Service surface use?
Because that is what this comes down to. Your whole argument is
based about ``what if.''
Mr. Tidwell. I am not aware of anywhere a state has filed a
lawsuit. I am aware of where other parties have filed lawsuits
when we did----
The Chairman. Well, we all know about the third-party
environmental organizations----
Mr. Tidwell. Correct.
The Chairman.--that makes your life difficult and make our
Forests unhealthy, and I would argue the negative consequences
that we have seen is a result of--and this is just my opinion.
I am not speaking for other Members. The wildfires, because of
timbering reduction, limitations we have seen because of
various regulatory--waters of the United States is going to do
that. Endangered Species Act has certainly done that in the
western states. You know, those are all good laws but have been
improperly administered over years in a bipartisan, negative
way, in both Administrations and both parties.
And so it is interesting you tell me you are not aware of
any. And please go back and check with the staff because I know
what it is like. Most of my good information comes from my
staff. So if your staff have records of lawsuits that have been
filed or complaints from states, then it would be good to know
about because if there is none, then there is not a need for
this Directive. I understand that you have stated that mostly
through court challenges--threats. Let us call it what it is,
threats to the Forest Service. Then God bless you for living
and working with those that you have to deal with. You talked
about what I call threats. You have stated that the variability
among the Forests and the lack of a systematic approach has
been what has been challenged.
Now, I would argue, and my question for you, is it not
appropriate and defensible given the clear law, the case law,
the legislative record, the legal status of state authority
over non-navigable and groundwater which has responsibility of
the states. If that is done by a state authority, unfortunately
that is the world you work in. You are going to have to be
flexible and not have a cookie-cutter approach which you are
trying to do with this Directive. You are going to have to be
able to come to the table and have a candid conversation. Now,
you can do that in an efficient way, maybe working with
coalitions of states obviously, and I think there is a--we are
going to hear one of our witnesses who is from Western States
Water Council that represents multiple states. But that is my
question.
And my next question is the fact that we don't have a
systematic approach, isn't that appropriate and defensible
given the legal status of state authority over non-navigable
and groundwater?
Mr. Tidwell. Mr. Chairman, the courts have disagreed with
that, and the point that we have never had a state sue us----
The Chairman. Well, which point, though? Every court case
including the Supreme Court I see clearly reinforces states'
rights and states' authorities when it comes to non-navigable
and groundwater.
Mr. Tidwell. Yes. I would be glad to provide the lawsuits
that we have received when we didn't----
The Chairman. Well, I know the lawsuits. The threats. And
those are threats.
Mr. Tidwell. Well--yes.
The Chairman. Those are not legal findings.
Mr. Tidwell. Well, but we get sued and the project gets
stopped----
The Chairman. I understand. It happens to the world--
Mr. Tidwell.--because we haven't evaluated the----
The Chairman.--and it frustrates me--
Mr. Tidwell.--impact.
The Chairman.--as much as it does you. But that does not
dictate law. Threats should not dictate good public policy. I
know the world you work in, and I am--I respect you and I know
how tough your job is. But we are lawmakers, and we take our
authority under Article I of the Constitution very seriously of
writing laws and enacting laws, and we really--the threats of
lawsuit should not dictate public policy.
Mr. Tidwell. In this case we work very closely with the
states. I will check to see if a state has ever filed a suit
about--
The Chairman. I appreciate it.
Mr. Tidwell.--our activities. But I would be surprised
because we work together on that, and for most of our projects,
the state has a decision they are making, like on a mining
proposal. They have a decision to make. We have a decision to
make. We often make those decisions together, but in these last
couple cases, it has been the Forest Service that has been
taken to court because the judge found that we were not
following the law, carrying out our responsibility to be able
to evaluate----
The Chairman. And I would argue--
Mr. Tidwell.--the impact from----
The Chairman.--that that judge is completely out of order
in terms of the law.
Mr. Tidwell. Well----
The Chairman. All the arguments you have provided, when you
read those--and I read your testimony. When you look at the
wording there, it is very clear. It talks about the regulation
of the flow of navigable waters, and I appreciate the difficult
situation that you are in. You know, there is no doubt about
it.
A specific question, I always have to answer back home. The
question was I have heard from some of my constituents who,
obviously produce oil and gas, and I appreciate that you have
talked about that, how it wouldn't interfere. I am concerned
that it actually opens up more nuisance lawsuits which I will
get to. But in the Allegheny National Forest, the fears that
this Directive appears to be another effort by the Forest
Service to manage access to private mineral estates. Can you
assure me and this Subcommittee that the Forest Service has no
intention to circumvent the clear message and the rulings of
the Minard Run decision or use this Directive in any way to
control access to private oil, gas, and mineral estates? As you
know, in the Allegheny where, I don't know where we are at, 90
percent subsurface rights are all privately held. That is the
way my predecessors determined to do that or deny access of the
rightful owners.
Mr. Tidwell. We will continue of course to follow the
Minard Run decision, just like we follow all court direction.
But an example there on Allegheny is that the Forest employees
are working very well with the oil and gas proponents about
cooperating together about when they are looking at a need to
access in-groundwater, about where the location is of where
they should put the well? If there is an opportunity to be able
to mitigate some potential impacts of that through the
location, we are working cooperatively like that.
We feel that is the approach that we are taking in your
state on the Allegheny National Forest. Once again, there are a
lot of places where this is working well. And I want to make
sure as we move forward that this is a very clear Directive and
it is something that the states can understand and be able to
see that we can be a more predictable partner with them because
often on these decisions, especially the ones where we get
challenged on, we are often both making a decision. The state
has their decision to make, we have ours. And so we use the
same information. And yes, there are going to be cases where we
are going to have to maybe do more than what the state feels
they need to do but recognizing that if we don't, we are not
going to be able to move forward with the project.
The Chairman. Chief, I think the unintended consequence
which we are going to see is you have a System that requires a
lot of work because you are doing it Forest by Forest and state
by state right now. I think you are creating more work and more
harm, and you are going to ruin those relationships because you
are going to try to create--you talked about a systematic
approach. That is a cookie cutter from Washington and impose
that on different states and different Forests that have
different geological formations and different water subsurface
groundwater issues. And I just think bad things are going to
happen.
Isn't the approach better what you do currently--and I want
to congratulate you on that--with the State of Montana? Montana
and the Forest Service have the compact. Isn't that a better
approach of increasing communications, collaboration, of really
looking at it so that the state, that authority can let you
know if your surface activity is negatively impairing the
groundwater, which it doesn't seem like there is any cases for
that. But it just seems like a good model.
Mr. Tidwell. The case in Montana is a good model. I think
the MOU we have in Colorado is a good model. It lays out our
responsibilities and how we do this. Ideally, we probably need
something like an MOU with every state to be able to clarify
how we are going to be working together. But the challenge that
we have here is that in some states, Montana, places like
Colorado, Minnesota. I can go through a long list where we are
doing what we need to do. But then there are other states, and
I will use the last couple court cases in Idaho and Washington,
where we didn't. And so the proponent is the one that gets
impacted by this, and we can have the discussion that maybe the
court shouldn't be involved as much as they are, but they are.
This is an opportunity for us to be in a better position.
The thing that I worry about is having someone else direct us
to what we need to do versus being able to sit down. And your
point about we need to look at this state by state because in
certain states, water issues are different. The aquifers are
different. The geology is very different. That is what we work
out with the state. But our employees need to have the basic
understanding that yes, you need to evaluate, monitor what
affects the groundwater. And right now, we don't have anything.
Even if they have done what they feel is an adequate job, the
court says, ``Well, we don't think it is adequate,'' versus if
we have a consistent, systematic approach that has been
publicly vetted, had the input from most of the states in it,
it is going to put us in a better position, better partner with
the states and also be in a more defensible position.
The intent of this really to be a better partner and make
this less contentious.
The Chairman. Yes.
Mr. Tidwell. That is our intent, Mr. Chairman.
The Chairman. Well--and----
Mr. Tidwell. And I know we have a lot of work to do on it.
The Chairman. I know, and Chief, I appreciate your time and
I appreciate your leadership on this area. I guess I am not as
optimistic that these groups that are bringing these lawsuits
are going to be satisfied with what you are doing when it is
done. I think they are just going to find other targets related
to this.
Thank you so much for taking the time out of what I know is
a very busy schedule. I know the full--speaking on behalf of
the entire Committee, we really appreciate your leadership and
appreciate you being here, how accessible you are to each of us
individually and the Committee as a whole.
Mr. Tidwell. Well, Mr. Chairman, you and the Subcommittee,
thank you for having the opportunity to come up here and to
have the time to really have the dialogue and the discussion. I
really appreciate it. I appreciate you giving us the time to
have this today. Thank you.
The Chairman. My pleasure. Thank you very much.
At this point, I would like to welcome our second panel of
witnesses to the table. Mr. Tony Willardson, Executive Director
of the Western States Water Council from Murray, Utah. Mr.
Scott Verhines?
Mr. Verhines. Verhines.
The Chairman. Verhines. I only had two choices. I picked
the wrong one. Sorry. New Mexico State Engineer from Santa Fe,
New Mexico, and for purposes of the third introduction, I am
pleased to yield to the gentleman from Colorado.
Mr. Tipton. Thank you, Mr. Chairman, and it is truly a
pleasure of mine to have the privilege to be able to introduce
a friend and also a constituent out of my district, Don
Shawcroft. He is representing our farm and ranch community in
this panel. He is the owner of John B. Shawcroft Ranch in the
San Luis Valley in South Central Colorado. In addition to
running his cattle operation, Mr. Shawcroft serves as President
for the Colorado Farm Bureau.
In his capacity of the Colorado Farm Bureau President, Mr.
Shawcroft also serves on the Board of Directors of the Southern
Farm Bureau Casualty Insurance Company as well as on that of
the Farm Bureau Bank and the American Farm Bureau Insurance
Services and the American Ag Insurance Company. So he is a busy
guy.
So Mr. Shawcroft, Don, it is a pleasure to have you here.
Mr. Shawcroft. Thank you. I appreciate that introduction.
The Chairman. Once again, thank you to all the witnesses
for being here. We are looking forward to your testimony. Just
know that we have your written testimony as a part of the
record that all Members have received. And so we will proceed
with 5 minutes of verbal testimony. I am pleased to recognize,
once again, Mr. Willardson for 5 minutes.
STATEMENT OF ANTHONY G. WILLARDSON, EXECUTIVE DIRECTOR, WESTERN
STATES WATER COUNCIL, MURRAY, UT
Mr. Willardson. Thank you, Mr. Chairman, and Members of the
Subcommittee for the opportunity to testify. The Council is a
nonpartisan government entity that advises western governors on
water policy issues, and our members are appointed by the
governors, Mr. Verhines being a representative of Governor
Susana Martinez. My remarks are based on the Council's
positions which are attached to my testimony, as well as a
letter from Governor John Hickenlooper who was then chair of
the Western Governors' Association to Secretary Vilsack
opposing a number of questions regarding the Directive. The
governors observed that the states are the exclusive authority
for allocating, protecting, and developing their groundwater
resources and also recognize, given their initial review, that
the Directive leads them to believe that this measure could
have significant implications for our states and our
groundwater resources.
Secretary Vilsack recently responded to that letter and
offered an open invitation to meet with the governors, and we
also look forward to working with the Forest Service to be more
fully engaged in a dialogue, a dialogue that has not yet taken
place.
I would also point out that appended to my testimony a
comment submitted by seven of our states which included South
Dakota, Washington, and others that are represented here on the
Committee.
The Forest Service should have consulted with us, and we
actually believe that the Executive Order 13132 requires that
consultation on matters that respect federalism. It has also
been pointed out earlier that they did consult with the Tribes,
but there was no process directly to consult with the states,
and we believe that that needs to be done.
You have already mentioned and we have talked about the
Supreme Court decisions and also the Acts of Congress including
the Desert Land Act of 1877 that recognizes the states'
exclusive authority over groundwater. The Council is concerned
that the Forest Service could put conditions on the exercise of
private property rights which many water rights are on in the
West. And we agree that they have no authority to limit how we
might allocate those resources, but they can have an impact on
how those are actually exercised. And there has been little
information presented on what is the problem? What is it that
the Forest Service is trying to address? I point out that
actually we ran some information and found in Oregon there are
some 230 groundwater wells that pump more than 35 gallons per
minute. Is that an issue in Oregon? We don't know.
But one of the other concerns is that given the presumptive
connection between surface and groundwater that is put in the
Directive, in Oregon there are over 18,000 surface water
rights. I think it would be helpful to know those numbers for
many of the other states.
In addition, there are restrictions or it talks about
possible restrictions on injection wells. We use those for
groundwater recharge on conservation which could affect the
exercise of rights and requiring the special use permits.
And in this area, the State Administrators have the
authority to consider the Forest Service's interest and the
Forest Service's needs and for the most part also have a public
interest requirement that they can take into consideration. The
Forest Service has the right to participate in these
administrative processes.
One of the big issues for us is going to be the language in
the Directive that directs the Forest Service to claim Federal
reserve water rights to groundwater. We do not believe that
there is any Federal statute, nor is there any Federal court
case that has ever recognized a Federal reserve right to
groundwater, and in fact, in the United States v. New Mexico,
the Supreme Court in 1978 strictly limited the authority or the
implied reserved rights to surface waters the minimum amount
needed for the primary purposes of the National Forest which
were forest production and maintenance of flows which I think
is talking about watershed protection because many of us depend
on those watersheds in the West for our water resources. And
the court specifically denied any implied reserved right for
fish and wildlife or recreation uses.
We appreciate the Forest Service, the challenges that they
have to address. We look forward to a dialogue with them, but
we do not believe that this is primarily their responsibility.
It is the responsibility of the states, and we appreciate your
oversight of this action and oppose any assertion of Federal
ownership interest in groundwater. And I appreciate again the
opportunity to testify.
[The prepared statement of Mr. Willardson follows:]
Prepared Statement of Anthony G. Willardson, Executive Director,
Western States Water Council, Murray, UT
On behalf of the Western States Water Council, a nonpartisan
government entity created by western governors to advise them on water
policy issues, I am here to express the concerns of the Council
regarding the U.S. Forest Service's (USFS) Proposed Directive on
Groundwater Resource Management, published in the Federal Register for
public comment on May 6. My testimony is based on Council Position No.
340--State Primacy over Groundwater (attached), as well as WGA Policy
Resolution 2014-03 on Water Resources Management in the West, and a
July 2nd letter to USDA Secretary Tom Vilsack from Governors John
Hickenlooper of Colorado and Brian Sandoval of Nevada, then Chair and
Vice Chair of the Western Governors' Association (also attached). The
latter states: ``Our initial review of the Proposed Directive leads us
to believe that this measure could have significant implications for
our states and our groundwater resources.''
In an August 29th letter, shortly before the close of the
originally published comment period, Secretary Vilsack responded to a
number of questions raised by the Governors and the Western Governors'
Association, which is considering the Secretary's explanations and
plans to comment prior to the newly extended deadline of October 3rd.
The Council and WGA continue to work closely together on this issue,
and reiterate, as stated in the Governors' letter that: ``States are
the exclusive authority for allocating, administering, protecting and
developing groundwater resources, and they are primarily responsible
for water supply planning within their boundaries.''
We request that the USFS seek an authentic dialogue with the states
to achieve appropriate policies that reflect both the legal division of
power and the on-the-ground realities of the West. USFS should have
consulted with the states before publishing the proposed directive, and
should now seek substantive engagement with the states in order to
define and remedy any perceived deficiencies or inconsistencies. The
directive may be well intentioned, but the problems that it is designed
to address are not apparent, nor is the protection of groundwater a
primary USFS responsibility.
I. State Primacy Over Surface Water and Groundwater
The Congress and the U.S. Supreme Court have consistently
recognized that states have primary authority and responsibility for
the appropriation, allocation, development, conservation and protection
of the surface water and groundwater resources. Congress has recognized
states as the sole authority over groundwater since the Desert Land Act
of 1877. Moreover, the Court held in California Oregon Power Co. v.
Beaver Portland Cement Co., 295 U.S. 142 (1935), that states have
exclusive authority over the allocation, administration, protection,
and control of the non-navigable waters located within their borders.
While the proposed directive identifies states as ``potentially
affected parties'' and recognizes states as having responsibilities for
water resources within their boundaries, it does not adequately
acknowledge the primary and exclusive nature of these responsibilities.
Further, the proposed directive does not explain how it will ensure
that it will not infringe upon state allocation and administration of
water rights and uses for both surface water and groundwater.
Consequently, the Council is concerned that the proposed directive
could conflict with state water management and water rights
administration.
First, the Council is concerned that the proposed directive will
require the implementation of certain conditions and limitations as
part of the approval or renewal of special use permits that may
interfere with the exercise of state issued water rights. Such
requirements may create a significant burden on existing surface water
and groundwater right holders who need the special use permits to
exercise their water rights and could limit or hinder the exercise of
current and future rights as permitted by the states. For example,
proposed conservation requirements could limit the full exercise of
certain water rights. The proposal would also require special use
permit holders to meter and report their groundwater use, which could
be expensive and may run contrary to the laws of some states.
Restrictions placed on injection wells, already regulated by state and
Federal laws, could affect groundwater recharge projects. These are
just a few examples.
There is little information presented on the extent of groundwater
use on USFS lands and the needs the directive is intended to address.
Consequently, additional work is needed before adoption of the
directive to better understand its implications for myriad projects and
activities to ensure that the proposal does not impair the exercise of
existing and prospective state granted water rights. The USFS should
work with the state authorities, and state expertise and resources
could help define the problem areas within the directive.
Second, the directive would require the USFS to evaluate all water
rights applications on National Forest System (NFS) lands, as well as
applications on adjacent lands that could adversely affect groundwater
resources the USFS asserts are NFS groundwater resources. As any other
landowner or water user, USFS has the right to participate in state
administrative processes to ensure that USFS interests are represented.
USFS may also condition activities on National Forest lands and permit
land surface disturbances. However, to the extent that the directive
purports to interfere with or limit the exercise of state granted
groundwater rights and state water use permitting authorities on USFS
lands, and particularly pertaining to uses on non-USFS property, the
proposed directive is beyond the scope of the agency's authority. The
directive's requirement could also impose an unnecessary burden on USFS
staff and other resources, as state water right administrators not only
have exclusive water use permitting authority, but also have the
expertise to evaluate any and all impacts on water resources and water
users. The directive raises the possibility of USFS actions interfering
with the exercise of valid pre-existing property rights to the use of
state waters. It is inappropriate for the USFS to attempt to extend its
administrative reach to waters and adjacent lands over which it has no
authority.
Third, the proposal's rebuttable presumption that surface water and
groundwater are hydraulically connected raises another set of
questions, including the standard and methods that may be used to rebut
this presumption. In fact, groundwater and surface waters may or may
not be hydrologically connected requiring extensive and expensive
geohydrologic analyses, which the USFS is ill equipped to undertake on
a large scale. Further, the management of groundwater and rights to the
use of groundwater varies by state and is as much a legal question as
it is a scientific question of connectivity. Moreover, if the USFS
presumes to have authority to regulate groundwater uses, then their
rebuttable presumption of a connection to surface water sources could
lead to an unwarranted and contentious assertion of authority over
surface water uses as well, which the U.S. Supreme Court has clearly
rebuffed.
II. Legal Basis of the Proposed Directive
The Council has a number of questions about the legal basis for the
proposed directive. While the proposal cites various Federal statutes
that it describes as directing or authorizing water or watershed
management on NFS lands, it contains very little discussion or analysis
of how these provisions specifically authorize the activities
contemplated in the proposed directive. The proposal also does not
address the limits of the USFS' legal authority regarding water
resources.
Instead of supporting the proposed directive's activities, many of
the authorities cited in the proposal support a more limited scope for
USFS water management activities. For instance, none of the cited
statutes mention groundwater specifically and many are primarily
limited to the surface estate. Moreover, 16 U.S. Code Section 481
specifically provides that: ``All waters within the boundaries of
National Forests may be used for domestic, mining, milling, or
irrigation purposes, under the laws of the state wherein such National
Forests are situated . . . .''
The Council is particularly troubled by language in the directive
that would require application of the reserved water rights doctrine to
groundwater. As noted in the Council's attached position, the U.S.
Supreme Court has recognized Federal reserved rights to surface water,
but no Federal statute has addressed, nor has any Federal court
recognized, any Federal property or other rights related to
groundwater. Except as otherwise recognized under state water law, the
Council opposes any assertion of a Federal ownership interest in
groundwater or efforts to otherwise diminish the primary and exclusive
authority of states over groundwater.
It is also important to note that the U.S. Supreme Court narrowly
interpreted the Organic Act, which the USFS cites as one of the legal
justifications for the proposal, in United States v. New Mexico, 438
U.S. 696 (1978). Namely, the Court denied USFS claims to implied
reserved surface water rights claims for fish, wildlife, and recreation
uses and found that reserved rights made pursuant to the Act were
limited to the minimum amount of water necessary to satisfy ``primary
purposes'' of the National Forest reservation, such as the conservation
of favorable surface water flows and the production of timber.
Furthermore, the Court found that all other needs were secondary
purposes that required state-issued water rights. Similarly, the
Court's other decisions regarding the reserved water rights doctrine
have generally narrowed its scope by imposing ``primary purpose'' and
``minimal needs'' requirements. The proposal must ensure that it
complies with the limits the Court has placed upon the recognition and
exercise of implied Federal reserved water rights.
Further, the assertion of reserved water rights in state general
water rights adjudications and administrative proceedings can be
contentious, time-consuming, costly, and counterproductive, often
resulting in outcomes that do not adequately provide for Federal needs.
For this reason, different states and Federal agencies have worked
together to craft mutually acceptable and innovative solutions to
address Federal water needs. The State of Montana and USFS have entered
into a compact that recognizes and resolves such needs. These types of
negotiated outcomes are often much more capable of accommodating
Federal interests and needs and should be considered before asserting
any reserved rights claims. At a minimum, the directive should require
the USFS to consider alternatives to asserting reserved water rights
claims, including those made in general state water rights
adjudications and administrative proceedings.
III. The Lack of State Consultation
The Council is especially concerned by the lack of state
consultation in the development of the proposed directive and its
assertion that it will not have substantial direct effects on the
states, on the relationship between the Federal Government and the
states, and the distribution of powers between the various levels of
government. WSWC Position No. 371 (attached) notes that E.O. 13132
requires Federal agencies to ``have an accountable process to ensure
meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications .
. . .''
As declared by the governors, the directive has the potential to
significantly impact the states and their groundwater resources. Any
Federal action that involves the possible infringement on state water
rights and the assertion of reserved water rights claims has, on its
face, the ability to significantly impact state granted private
property and water use rights, their administration, and state water
management and water supply planning.
It is particularly perplexing that the USFS deems it necessary to
consult with Tribes under Executive Order 13175, but has determined
that the states do not warrant similar consultation under Executive
Order 13132. It is difficult to understand how the USFS will be able to
carry out this proposal in coordination with the states, as the
directive proposes, without robust and meaningful consultation with the
states. Moreover, waiting until the public comment period to solicit
state input, as the USFS has done in this instance, is dismissive and
counterproductive. Timely and substantive discussions could have led to
improvements in the directive before being proposed, recognized and
incorporated state's authorities and values, and avoided or minimized
conflicts. The states should have been consulted much earlier in the
development of this directive, especially given that it has apparently
been under discussion for years.
IV. Conclusion
The Council appreciates the opportunity to testify and express our
concerns with the proposed directive. Secretary Vilsack's letter to the
Governors includes an invitation to meet and discuss the directive. The
Council encourages such a dialogue before the USFS takes any further
action on this proposal. The Council is also ready to participate in a
dialogue with the USFS to address questions and concerns raised herein
regarding the proposed directive, as well as those raised by our member
states in their comments, some of which have already been submitted and
are attached to this testimony. Given the extension recently granted,
some of these states may choose to supplement their comments before the
new deadline. (Separately attached for the record are comments provided
USFS from Alaska, Idaho, Nevada, North Dakota, South Dakota, Washington
and Wyoming.)
Thank you for your oversight efforts. We ask for your careful
consideration of our concerns and those of our member states. We look
forward to further dialogue with the USFS regarding this proposal, and
hope the USFS will appropriately defer to the authority of the states
to manage their groundwater and surface waters, as recognized by the
Congress and the Supreme Court.
Attachment 1
Position No. 340
Position of the Western States Water Council on State Primacy Over
Groundwater
Washington, D.C.
March 15, 2012
Whereas, groundwater is a critically important natural resource
that is vital to the economy and environment of the arid West;
Whereas, the Desert Land Act of 1877 and the United States Supreme
Court in California Oregon Power Co. v. Beaver Portland Cement Co., 295
U.S. 142 (1935) recognize states have exclusive authority over the
allocation and administration of rights to the use of the groundwater
within their borders and states and their political subdivisions are
primarily responsible for the protection, control and management of the
resource;
Whereas, the Congress has created and the U.S. Supreme Court has
recognized Federal reserved rights to surface water, but no Federal
statute has addressed nor Federal court recognized any Federal property
or other rights related to groundwater; and
Whereas, the regulatory reach of Federal statutes and regulations,
including but not limited to the Clean Water Act, Endangered Species
Act, National Environmental Policy Act, Reclamation Act of 1902, Safe
Drinking Water Act, and the Comprehensive Environmental Response,
Compensation, and Liability Act, were never intended to infringe upon
state ownership or control over groundwater; and
Whereas, States recognize the importance of effective groundwater
management and are in the best position to protect groundwater quality
and allow for the orderly and rational allocation and administration of
the resource through state laws and regulations that are specific to
their individual circumstances; and
Whereas, the conditions affecting groundwater supplies, demands,
and impairments vary considerably across the West and within individual
states; and
Whereas, Federal efforts to exert control over or ownership
interests related to groundwater or otherwise infringe upon or
supersede state groundwater management are contrary to Federal law and
threaten effective groundwater management and protection; and
Whereas, nothing stated in this position is intended to apply to
the interpretation or application of any interstate compact.
Now Therefore Be It Resolved, states have exclusive authority over
the allocation and administration of rights to the use of the
groundwater located within their borders and are primarily responsible
for allocating, protecting, managing and otherwise controlling the
resource; and
Be It Further Resolved, that the Western States Water Council
opposes any and all efforts that would establish a Federal ownership
interest in groundwater or diminish the primary and exclusive authority
of states over groundwater.*
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* (See also Position No. 337).
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Attachment 2
Position No. 371
Resolution of the Western States Water Council Regarding Water-Related
Federal Rules, Regulations, Directives, Orders and Policies
Helena, Montana
August 11, 2014
Whereas, Presidential Executive Order 13132, issued on August 4,
1999, requires Federal agencies to ``have an accountable process to
ensure meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications .
. .''; and
Whereas, an increasing number of Federal regulatory initiatives and
directives are being proposed that threaten principles of federalism,
an appropriate balance of responsibilities, and the authority of the
states to govern the appropriation, allocation, protection,
conservation, development and management of the waters within their
borders; and
Whereas, taking such actions goes beyond the intent of the
applicable laws; and
Whereas, a number of these recent proposals have been made with
little substantive consultation with state governments; and
Whereas, a Western Federal Agency Support Team (WestFAST) now
comprised of twelve water-related Federal agencies was created pursuant
to a recommendation of the Western Governors' Association and Western
States Water Council to foster cooperation and collaboration between
the Federal agencies and states and state agencies in addressing water
resource needs; and
Whereas, State consultation should take place early in the policy
development process, with the states as partners in the development of
policies; and
Whereas, Federal agencies have inappropriately dismissed the need
to apply this requirement to their rulemaking processes and procedures;
and
Whereas, water quantity regulation and management are the
prerogatives of states, and water rights are private property,
protected and regulated under state law;
Now Therefore Be It Resolved, that nothing in any Federal rule,
regulation, directive, order or policy should affect, erode, or
interfere with the lawful government and role of the respective states
relating to: (a) the appropriation and allocation of water from any and
all sources within their borders; and/or (b) the withdrawal, control,
use, or distribution of water; and/or (c) affect or interfere with any
interstate compact, decree or negotiated water rights agreement; and/or
(d) application, development and/or implementation of rules, laws, and
regulations related to water.
Be It Further Resolved, that Federal agencies with water related
responsibilities fully recognize and follow the requirements of
Executive Order 13132 by establishing and implementing appropriate
procedures and processes for substantively consulting with states,
their Governors, as elected by the people, and their appointed
representatives, such as the Western States Water Council, on the
implications of their proposals and fully recognize and defer to
states' prerogatives.
Attachment 3
July 2, 2014
Hon. Tom Vilsack,
Secretary of Agriculture,
U.S. Department of Agriculture,
Washington, D.C.
Dear Secretary Vilsack:
Western Governors are concerned by the United States Forest
Service's (USFS) recently released Proposed Directive on Groundwater
Resource Management (hereafter ``Proposed Directive''). As you know,
states are the exclusive authority for allocating, administering,
protecting and developing groundwater resources, and they are primarily
responsible for water supply planning within their boundaries.
Congress recognized states as the sole authority over groundwater
in the Desert Land Act of 1877. The United States Supreme Court
reiterated the exclusive nature of state authority in California Oregon
Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935).
Despite that legal and historical underpinning, the Proposed
Directive only identifies states as ``potentially affected parties,''
and asserts that the USFS's proposed actions would ``not have
substantial direct effects on the states.'' Our initial review of the
Proposed Directive leads us to believe that this measure could have
significant implications for our states and our groundwater resources.
For this Proposed Directive--as well as the Proposed Directives for
National Best Management Practices for Water Quality Protection on
National Forest System Lands--USFS should seek authentic partnership
with the states to achieve appropriate policies that reflect both the
legal division of power and the on-the-ground realities of the region.
We respectfully request your responses to the attached questions to
help us better understand the rationale behind this new proposal.
Sincerely,
John Hickenlooper Brian Sandoval,
Governor, State of Colorado, Governor, State of Nevada,
Chairman, WGA; Vice Chairman, WGA.
western governors' association questions regarding proposed united
states forest service (usfs) water quality-related directives
Proposed Directive on Groundwater Resource Management
Legal Basis for USFS Action:
Well over a century ago, Congress recognized states as the sole
authority over groundwater in the Desert Land Act of 1877. The United
States Supreme Court reiterated the exclusive nature of state authority
in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S.
142 (1935), recognizing that states have exclusive say over the
allocation, administration, protection and control of groundwater
within their borders.
What is the legal basis for U.S. Department of Agriculture
(USDA)/USFS assertion of federal authority in the context of
the Proposed Directive? What does the USDA/USFS recognize as
the limits of federal authority?
The Proposed Directive states that, when filing groundwater
use claims during state water rights adjudications and
administrative proceedings, Forest Service employees should ``.
. . [a]pply Federal reserved water rights (the Reservation or
Winters doctrine) to groundwater as well as surface water to
meet Federal purposes under the Organic Administration Act, the
Wild and Scenic Rivers Act, and the Wilderness Act'' (emphasis
added).
What is the legal basis for these claims?
When and how will USFS assert reserved water rights
claims to groundwater?
The Proposed Directive states that the assertion of reserved
rights to surface water and groundwater should be consistent
with the purposes of the Organic Administration Act, the Wild
and Scenic Rivers Act, and the Wilderness Act. In the 1978 case
United States v. New Mexico, 438 U.S. 696 (1978), the U.S.
Supreme Court denied USFS claims to reserved rights for fish,
wildlife and recreation uses. Rather, the Court found that the
Organic Act limits reserved rights to those necessary to meet
the primary purposes of the Act--the conservation of favorable
water flows and the production of timber--and that other
secondary needs must be met by obtaining appropriation rights
from the state.
How does the Proposed Directive work within the legal
framework required by the Court?
Given the Supreme Court's finding, how does the
Organic Act authorize USFS reserved rights to groundwater
here?
State Authority:
Given the Federal statutory grant of state authority over
groundwater and U.S. Supreme Court case law discussed above:
What will ``cooperatively managing groundwater with
states'' mean in practice?
How will the Department ensure that the Proposed
Directive will not infringe upon, abrogate, or in any way
interfere with states' exclusive authority to allocate and
administer rights to the use of groundwater as well as the
states' primary responsibility to protect, manage, and
otherwise control water resources within their borders?
Do the new considerations for groundwater under USFS'
existing special use authorizations amount to a permit for
groundwater use? If (as stated) groundwater and surface
water are assumed to be hydraulically connected, could this
special use authorization for groundwater amount to water
rights permitting of both groundwater and surface water?
Will there be an increase in regulatory responsibilities
for states and water users? What will the new requirements
for monitoring and mitigation entail?
The Proposed Directive asserts that it does not trigger the
requirements of E.O. 13132 on federalism--that it would not
impose compliance costs on states or have substantial direct
effects on states or the distribution of power.
Given the changes this directive would make in the
ways state-managed waters are permitted, why do USDA and
USFS believe this action would not trigger E.O. 13132?
Scientific Assumptions and Definitions:
How will definitions be established for the Proposed
Directive? Particularly regarding the definition of
``groundwater-dependent ecosystems,'' states should be able to
weigh in with information regarding the unique hydrology within
certain areas.
The Proposed Directive would require the Forest Service to,
``[a]ssume that there is a hydrological connection between
groundwater and surface water, regardless of whether state law
addresses these water resources separately, unless a
hydrogeological evaluation using site-specific data indicates
otherwise.'' The Federal Register notice for the Directive
further states that, ``this assumption is consistent with
scientific understanding of the role and importance of
groundwater in the planet's hydrological cycle.'' Yet without
citing specific scientific evidence for specific areas, the
assumption of connectivity opens new waters to permitting
without sound evidence that takes site-specific considerations
into account.
What quantifiable science does USFS depend upon to
justify this broad assertion of Federal authority?
Application to Existing Permitted Uses:
How will the Proposed Directive apply to existing, permitted
activities on USFS lands? How will it affect existing uses that
rely on state-based water rights?
Nexus to Forest Planning Rule:
How is this Proposed Directive related to the Forest
Planning Rule?
Process Concerns:
Given the Proposed Directive's potential impacts on states
and stakeholders, why was this new policy released as a
Proposed Directive rather than a rule?
Why were states--the exclusive authorities over groundwater
management--not consulted during USDA/USFS' development of this
Proposed Directive?
Proposed Directives for National Best Management Practices for
Water Quality Protection on National Forest System Lands:
How do the proposed BMP Directives relate to NEDC v. Brown,
litigation overturned by the U.S. Supreme Court which would
have identified forest roads as subject to permitting under the
Clean Water Act (CWA)?
How will the Proposed Best Management Practices (BMP)
Directives relate back to the recent proposed rule regarding
the scope of waters protected under the CWA and the related
study on Connectivity of Streams and Wetlands to Downstream
Waters from the Environmental Protection Agency's Scientific
Advisory Board?
What are the implications of using these BMP Directives as
USFS' primary requirements to meet water quality standards?
Will these become the basis for future regulatory action
impacting specific activities on USFS lands (for example,
energy production, mining, or grazing)?
What is the legal basis of asserting that USFS needs to
institute BMP Directives to ``[maintain] water resource
integrity?''
Attachment 4
August 29, 2014
Tom Tidwell, Chief,
James M. Penna, Associate Deputy Chief,
U.S. Forest Service
Washington D.C.
RE: USFS Directive on Groundwater Resources Proposed FSM 2560
Dear Chief Tidwell and Associate Deputy Chief Penna:
These comments are hereby submitted on behalf of the State of
Alaska (Alaska). The Alaska Department of Natural Resources (ADNR) has
the statutory authority and responsibility for management of water use
on all lands within the state, public or private. ADNR also works with
the Alaska Departments of Environmental Conservation, Fish and Game and
Law for the protection of all water in Alaska.\1\ Alaska finds these
proposed directives to be duplicative of existing state programs; to
have the potential for vetoing state decisions; and, perhaps most
disturbing, to assume that states are not adequately performing their
roles in regulating groundwater.
---------------------------------------------------------------------------
\1\ The Alaska Department of Natural Resources, the Alaska
Department of Environmental Conservation and Alaska Department of Fish
and Game provided feedback and support for this response.
---------------------------------------------------------------------------
As a member of the Western Governors' Association (WGA) and Western
States Water Council (WSWC), Alaska is already part of the group of
western states who have questioned this directive (see WGA Letter to
Secretary Vilsack dated July 14, 2014 signed by Governors Hickenlooper
and Sandoval), and was part of the recent discussions with Associate
Deputy Chief Penna at the July 14-18 WSWC meeting in Helena, MT. These
comments are in further response to USFS's request for comments, and
Chief Penna's personal request for more detailed response from member
states.
Chief Penna noted in his presentation on July 17 that this
Directive was (1) not intended to impact use of water and, rather, was
to be related to activities on USFS land; (2) was not related to EPA's
waters of the U.S. initiative; (3) would not be related to private
land; and (4) that the USFS should consult state agencies. He further
stated that the USFS was looking at the Multiple Use Act of 1960 and
was not trying to manage allocation, rather the USFS was trying to
manage uses which impact water. He also noted that the USFS just wanted
to be treated equal to any other landowner.\2\
---------------------------------------------------------------------------
\2\ David W. Schade, MPA, ADNR/DMLW Water Resources Section Chief
notes of comments made by Associate Deputy Chief Penna to WSWC at the
Council Committee Meetings July 17, 2014 in Helena, MT.
---------------------------------------------------------------------------
If that was what the detail in the directive and the Federal
Register summary stated, Alaska would have little dispute with the USFS
proposal. However, that is not the case. To quote from the Federal
Register Summary, ``The Forest Service proposes to amend its internal
Agency directives for Watershed and Air Management to establish
direction for management of groundwater resources on National Forest
System (NFS) lands as an integral component of watershed management'' .
. . ``This proposed Groundwater Directive represents a change in Forest
Service's national policy on water management''. The Forest Service
recognizes that states and tribes also have responsibilities for water
resources within their boundaries and that management of groundwater
needs to be conducted cooperatively with the states and tribes to be
successful.'' (Italics added) These statements are not aligned with
Chief Penna's statements, and in fact are contrary to Congressional
acts and Court decisions. It is widely acknowledged that the states
have primary authority and responsibility for appropriation and use of
surface and groundwater within their borders. Further, it should be
noted that the U.S. Supreme Court held in California Oregon Power Co.
v. Beaver Portland Cement Co.\3\ that states have exclusive authority
over the allocation, administration, protection, and control of the
groundwater located within their borders. In Alaska, these policies are
strengthened by our Constitution in Article 8, 2-5, & 13,\4\ which
established water as a common use resource subject to appropriation and
use under the prior appropriation doctrine. The Alaska Legislature
further defined the management and use of water and delegated the
responsibility to uphold these water use policies to the Alaska
Department of Natural Resources (ADNR) by the Alaska Water Use Act, AS
46.15. In short, it is Alaska who has primary and/or exclusive
jurisdiction over water resources, and in this role it is the state who
would collaborate with the USFS, not the opposite as opined in the
proposed directive.
---------------------------------------------------------------------------
\3\ 295 U.S. 142 (1935).
\4\ 2. General Authority: The legislature shall provide for the
utilization, development, and conservation of all natural resources
belonging to the state, including land and waters, for the maximum
benefit of its people.
3. Common Use: Wherever occurring in their natural state, fish,
wildlife, and waters are reserved to the people for common use.
4. Sustained Yield: Fish, forests, wildlife, grasslands, and all
other replenishable resources belonging to the state shall be utilized,
developed, and maintained on the sustained yield principle, subject to
preferences among beneficial uses.
5. Facilities and Improvements: The legislature may provide for
facilities, improvements, and services to assure greater utilization,
development, reclamation, and settlement of lands, and to assure fuller
utilization and development of the fisheries, wildlife, and waters.
13. Water Rights: All surface and subsurface waters reserved to
the people for common use, except mineral and medicinal waters, are
subject to appropriation. Priority of appropriation shall give prior
right. Except for public water supply, an appropriation of water shall
be limited to stated purposes and subject to preferences among
beneficial uses, concurrent or otherwise, as prescribed by law, and to
the general reservation of fish and wildlife.
---------------------------------------------------------------------------
Alaska is a large state with six regions and five temperate zones,
ranging from an arctic environment in northern Alaska, to sub-arctic in
southcentral, to a mid-latitude oceanic climate in Southeast Alaska. It
covers 663,267 square miles, or 424.49 million acres, of which only 22
million acres are USFS managed land.\5\ Alaska's portion of all USFS
managed land (192.8 million acres) is the largest of any state, and not
only quite different within the state, vastly different than many USFS
lands throughout the continental U.S. Each state, especially Alaska,
has unique circumstances within its borders, and unique expertise
within the state government to manage these diverse lands and waters.
Yet, the Forest Service directive attempts to make a broad general
policy which must be used everywhere, notwithstanding these
differences. The following specific issues should be noted.
---------------------------------------------------------------------------
\5\ http://www.fs.fed.us/land/staff/lar/2007/TABLE_4.htm.
---------------------------------------------------------------------------
(1) Jurisdiction
(a) In spite of the U.S. Forest Service's
pronouncements that the proposed directive will not
impinge on the state's authority to manage and allocate
the use of water resources that each state owns
throughout (including on and under Federal lands) the
state's borders, the proposed directive contains
wording that effectively says just the opposite. See
section 2560.04, paragraph 6 on page 17 of the draft
manual that states it is the responsibility of forest
and grassland supervisors to coordinate and implement
agreements with Federal, state, and local agencies . .
. for manage-
ment . . . of groundwater resources. Also Section
2560.03--Policy, paragraph 6.a. (on Cooperation with
Other Governmental Entities) states: ``Manage
groundwater quantity and quality on NFS lands in
cooperation with appropriate state agencies and, if
appropriate, EPA.''
(b) The proposed directive speaks in terms of
requiring applicants to also get a state issued water
right for a proposed project.
The proposed directive language doesn't recognize that a state may
issue temporary water use authorizations. These authorizations may be
the more appropriate type of water use approval and the choice of the
state, especially if they choose to grant a short term approval of the
water use. Further, additional or different water quality
authorizations or permits may be required.
(c) The proposed directive doesn't confine its
requirements to just evaluating potential impacts to
groundwater/surface water, but also requires an
applicant's proposal (for water withdrawals) to the
U.S. Forest Service to identify the beneficial uses of
the water (see section 2563.3, paragraph 2.a. on page
30 of the draft manual).
If the U.S. Forest Service is requiring a statement of the
beneficial use of the proposed water use, it is injecting itself into
the state's jurisdiction to determine what constitutes a beneficial use
of the water that is owned by the state.
(d) The proposed directive requires all new and
reissued written authorizations the Forest Service
issues to contain terms requiring the authorization
holder to provide to the Forest Service all groundwater
monitoring data and information collected in compliance
with applicable local, state, or other Federal
requirements (see section 2561, paragraph 3 on page 23
of the draft manual).
This doesn't make any exception for information that may be granted
proprietary and confidential status under state law. This is further
indication of an attempt to manage the use of groundwater. This also
places a significant and unnecessary reporting burden upon applicants.
(e) Although the Forest Service documents refer to
working with project applicants to come up with
mitigation measures that would allow a project to be
approved in spite of perceived groundwater/surface
water impacts, section 2563.4, paragraph 6 on page 32
of the draft manual specifically states that ``the
authorized officer shall deny the application if NFS
groundwater resources would be compromised, despite
mitigation, if the proposed use were authorized . . .
.''
This amounts to proposing a Federal veto power over a state's
decision to issue a water right (for a project on or near Forest
Service System lands) to allocate the use of the water that is owned by
the state. The statement further seems to suggest Forest Service
ownership of groundwater resources within the boundaries of Forest
Service administered lands which is fundamentally NOT true.
(f) The proposed directive requires an applicant's
proposal to identify existing water withdrawals in the
vicinity of the proposed project to allow for
evaluation of its potential to adversely affect NFS
water resources and facilities and neighboring non-NFS
water supplies (see section 2563.3, paragraph 2.e. on
page 31 of the draft manual).
It appears from this wording that the U.S. Forest Service is
injecting itself into the state's jurisdiction to determine if a
proposed new water use will affect existing water right holders, even
those existing water right holders not located on Forest Service System
lands.
(g) The proposed directive attempts to require
notifying the U.S. Forest Service (and thus invoking
the proposed Federal oversight and potential Federal
veto of proposed groundwater/surface water uses) of
water use applications to the state in situations where
the state may not have otherwise felt the need to
notify the U.S. Forest Service (e.g., where the
proposed project is outside of but near Forest Service
System lands).
As noted earlier, Alaska asserts that the USFS has no jurisdiction
over the management and use of groundwater. Alaska also asserts that it
has primary jurisdiction over the management of surface waters. The
Forest Service states that by implementing the proposed directive it
will not be interfering with the state water right issuance process,
and thus implying that the FS will not be usurping state jurisdiction
over water use allocation. However, even if the proposed directive is
not based on any new Federal authority, or in fact a new interpretation
of existing authority, in practice, the USFS proposed changes can, and
likely will, change what was effectively an exclusive state process for
allocating the use of water within each state's borders into a process
of concurrent Federal and state oversight and allocation of water
(surface and subsurface water) within and near Forest Service System
lands. Further, Alaska unequivocally rejects the USFS attempt to manage
groundwater under lands near USFS boundaries.
(2) Hydrological connection assumed
(a) The proposed directive mandates that groundwater
and surface water be assumed to be the same source of
water (assume a hydrological connection exists at every
proposed project site) regardless of whether state law
addresses these water resources separately (see section
2561, paragraph 1 on page 22 of the draft Manual) and
this assumption prevails unless a hydrological
evaluation using site-specific data indicates
otherwise.
Alaska does not agree that any assumptions should be made regarding
connectivity, and further asserts that it is the state who leads this
review as part of its inherent right to manage water resources. It will
be problematic and far reaching if, without any direction or authority,
the USFS attempts to require a project proponent to bear the cost of
the hydrological evaluation. The assumption that groundwater and
surface water are hydrologically connected at every proposed project
site doesn't give any consideration to the physical and technical
aspects of the hydro-geology as currently understood. For example, the
depth of proposed groundwater withdrawal or injection is not even
mentioned, and thus doesn't incorporate any discussion about different
aquifer layers separated by impervious geologic layers, such as
routinely found in Alaska.
(3) Forest Service permit process ``inadequate''
(a) The Forest Service states that it hasn't in the
past adequately evaluated potential groundwater impacts
from its own projects or for other project applicants
to which it grants authorizations, and thus the
proposed directive will be the basis of a consistent
Federal assessment process to evaluate potential
groundwater quantity and quality impacts.
Alaska believes that current USFS groundwater planning guides are
more than adequate. Further, the USFS only has to look to its current
groundwater planning documents to see the fallacy of the argument that
a new directive is needed to adequately evaluate potential groundwater
impacts. USFS ``Technical Guide to Managing Ground Water Resources''
(FS-881 May 2007) is a 281 page document which gives clear guidance to
staff on the framework of hydrogeologic principles, methods of
investigation and for managing groundwater resources. This manual
clearly outlines the USFS role as the land manager and also
appropriately acknowledges the state's role as the groundwater use
regulator. This manual does what the new Directive is purported to be
doing.
Alaska also believes that in Alaska the USFS does and will continue
to have a role in the water right or water authorization process as the
land manager.\6\ They also may have secondary jurisdictions as related
to some water issues, so Alaska looks to the USFS for their approval on
issues such as possessory interests, and also seeks USFS input as to
permit conditions to be placed on state issued water use permits and
authorizations (in the same manner that the Alaska Department of Fish
and Game or Alaska Department of Environmental Conservation are
consulted). If the USFS changed the proposed directive to require USFS
field staff to utilize state water law and permitting processes to
achieve their land management objectives and to cooperate and
coordinate with each state, this directive would likely meet the goals
as stated by Chief Penna, and in the latest expanded question and
answer paper.
---------------------------------------------------------------------------
\6\ The Alaska Department of Natural Resources has worked with the
USFS on projects located within the Chugach National Forest and the
Tongass National Forest. For example, see the collaboration on the
Kensington and Greens Creek mines in Southeast Alaska.
---------------------------------------------------------------------------
(4) USFS staffing/expertise inadequate
(a) The expanded set of questions and answers notes:
``The Forest Service currently has four dedicated
groundwater specialists that provide technical support
to the National Forest and Grasslands with the
potential to add more. In addition, there are a number
of other specialists across the agency with training or
experience in groundwater. If circumstances require it,
a forest or grassland can contract the services of a
qualified groundwater specialist. Finally, the Forest
Service has ongoing training and technical resources to
assist employees across the agency understand and
address groundwater issues.''
The states all have a much larger number of technical staff trained
in the fields of hydrology and water management. It is unrealistic to
think that the USFS is going to get increased Federal funding in a time
of budget deficits for staff to perform a function which is primarily,
and at times exclusively, the jurisdiction of the states. In reality,
this will likely have the effect of either cursory review by the USFS
staff, or lengthy delays in the processing of USFS special use permits.
Further, it would make more sense for the USFS to consider the state
experts' opinions as a primary resource, instead of considering the
need for ``contract services''.
(b) The definition of ``groundwater dependent
ecosystems'' in section 2560.05 includes areas of cave
& karst systems. Several factors make it imperative
that individual National Forests have latitude within
the directive to adapt it to local conditions.
Some of the most productive timber lands in the Tongass National
Forest are within the extensive karst areas of the forest. To meet the
requirement of the Tongass Timber Reform to ``seek to meet the demand''
for timber supply and support the region's economic structure, the
proposed regulations must allow Tongass National Forest managers to
apply local expertise when considering forest management activities on
karst topography.
I again reiterate that the state's reading of the plain language in
the Directive does not correspond with Chief Penna's answers given in
response to the pointed questions from the public, states and other
stakeholders. The U.S. Forest Service's proposed Groundwater Directive
is akin to the Forest Service requiring a person with a state issued
driver's license who wants to drive on or even near Forest Service
System lands to also pass a U.S. Forest Service administered driver's
test and be issued a Federal driver's license before being allowed to
operate their vehicle on or near Forest Service System land.
The proposed directive effectively implements a redundant layer of
government regulation over the allocation and use of state owned water
resources (both groundwater and surface water, because of the
assumption built into the proposed directive that groundwater and
surface water are everywhere hydrologically connected unless proven
otherwise), and effectively gives the Federal Government a veto power
over state decisions to issue a water right for projects on or even
near Forest Service System lands.
If the USFS does not accept that its current groundwater planning
guides are adequate and thus continues to pursue establishment of the
proposed directive, then Alaska respectfully requests that the USFS
convene a working group of state and tribal water use managers to
assist in developing a new draft directive. It is my belief that a
directive can be written which will fully meet the needs of the USFS as
articulated by Chief Penna and the USFS in its numerous explanation
documents. Alaska offers to assist with this endeavor.
Sincerely,
Brent W. Goodrum,
Director.
CC: Groundwater Directive Comments,
USDA Forest Service, Attn: Elizabeth Berger,
WFWARP, 201 14th Street, SW.,
Washington, D.C. 20250;
Honorable Tom Vilsack,
Secretary of Agriculture,
U.S. Department of Agriculture,
1400 Independence Avenue, S.W.,
Washington, D.C. 20250;
Honorable Sean Parnell,
Governor, State of Alaska,
P.O. Box 110001,
Juneau, Alaska 99811-0001;
Kip Knudson, Director State and Federal Relations,
Office of Governor Sean Parnell,
444 North Capital NW, Suite 336,
Washington, D.C. 20001-1512;
Larry Hartig, Commissioner,
Alaska Department of Environmental Conservation,
P.O. Box 111800,
Juneau, Alaska 99811;
Michelle Hale, Director,
ADEC, Division of Water,
P.O. Box 111800,
Juneau, Alaska 99801-1800;
Joseph Balash, Commissioner,
Alaska Department of Natural Resources,
550 W. 7th Avenue, Suite 1400,
Anchorage, Alaska 99501.
Attachment 5
September 3, 2014
Groundwater Directive Comments,
USDA Forest Service,
Attn: Elizabeth Berger--WFW ARP,
Washington, D.C.
RE: State of Idaho's Comments on Proposed Directive on Groundwater
Resource Management, Forest Service Manual 2560
Ms. Berger:
The State of Idaho (``state'') submits the following comments on
the United States Forest Service (``USFS'') Proposed Directive on
Groundwater Resource Management, Forest Service Manual 2560
(``Directive'').
Groundwater within Idaho is a public resource that is subject to
control and regulation by the state. The Idaho Constitution provides
that use of the waters of Idaho is a public use subject to regulation
and control by the state. Idaho Const. Art. XV 1 and 3. No person or
entity may use the public waters of the State of Idaho without first
having obtained a valid water right to use the water. I.C. 42-201,
42-202, 42-203A, 42-204, 42-219. The Director of the Idaho Department
of Water Resources is charged with administering all surface and
groundwater within Idaho according to the prior appropriation doctrine.
I.C. 42-602, 42-607.
The USFS may hold Federal reserved or state-based water rights, but
it does not own all groundwater underlying National Forest lands. Any
USFS claim to the groundwater resources of the State of Idaho must
either be established under state law or determined through a general
stream adjudication. The Snake River Basin Adjudication (``SRBA'') and
the Coeur d' Alene-Spokane River Basin Adjudication (``CSRBA'') are
general stream adjudications in Idaho. The McCarran Amendment (42
U.S.C. 666) requires Federal Government participation in these
general stream adjudications. Any USFS claim to the groundwater
resources of the State of Idaho has been or will be determined in these
general stream adjudications or through the state administrative
process. The USFS' water rights are subject to state administration in
priority with all other water rights.
The USFS is governed by the Organic Administration Act (``Organic
Act''). 16 U.S.C.A. 473-475, 477-482, 551. The Organic Act
establishes the purposes of the National Forest System: ``No National
Forest shall be established, except to improve and protect the forest
within the boundaries, or for the purpose of securing favorable
conditions of water flows, and to furnish a continuous supply of tim-
ber . . . .'' 16 U.S.C.A. 475. The Multiple Use Sustained Yield Act
(``MUSYA'') provides: ``[T]he National Forests are established and
shall be administered for outdoor recreation, range, timber, watershed,
and wildlife and fish purposes.'' 16 U.S.C.A. 528. The MUSYA,
however, merely supplemented the primary purposes of watershed
preservation and timber supply. U.S. v. New Mexico, 438 U.S. 696, 708
(1978). The purpose of the National Forests is not water management,
but the protection of watersheds for use by downstream users by
preventing erosion through land use management practices such as
preserving trees and underbrush. USFS limitation or prevention of
downstream water use and control of state water resources was not
contemplated by the USFS' Organic statutes.
The Directive is based on the false premise that the USFS is
empowered to manage all groundwater resources that underlie National
Forest lands. The Organic Act does not empower the USFS to manage
groundwater resources nor reverse Congress' historic policy of
deference to state water law. The USFS may manage its own water rights
and may claim injury via state processes if it believes those water
rights are being injured, but it is not empowered to manage or
otherwise regulate the use of groundwater resources within the State of
Idaho. The following portions of the Directive unlawfully assert that
the USFS may preempt the state's authority to allocate and administer
groundwater underlying National Forest lands:
------------------------------------------------------------------------
Provision State of Idaho's Concern
------------------------------------------------------------------------
2560.02.1 ``To manage groundwater The meaning of ``manage'' and
underlying NFS lands cooperatively ``cooperatively'' are unclear.
with states and Territories . . . The state is solely responsible
and Tribes to promote long-term for administering, allocating,
maintenance or restoration of and distributing the public water
groundwater systems and their of Idaho.
groundwater-dependent ecosystems .
. . .''
------------------------------------------------------------------------
2560.03.1 ``Focus Forest Service The meaning of ``Forest Service
groundwater resource management on groundwater resource'' is
those portions of the groundwater unclear. The USFS may hold water
system that if depleted or rights, but it does not own all
contaminated would have an adverse groundwater underlying National
effect on surface resources or Forest lands. Groundwater is a
present or future uses of public water of the State of
groundwater.'' Idaho.
The meaning of ``management'' is
unclear. The state is solely
responsible for administering,
allocating, and distributing the
public water of Idaho.
------------------------------------------------------------------------
2560.03.2 ``Manage surface water and The meaning of ``manage'' is
groundwater resources as unclear. The state is solely
hydraulically interconnected . . . responsible for administering,
unless it can be demonstrated allocating, and distributing the
otherwise.'' public water of Idaho.
------------------------------------------------------------------------
2560.03.3 ``Evaluate and manage the The meaning of ``manage'' is
surface water-groundwater hydro- unclear. The state is solely
logical system . . . .'' responsible for administering,
allocating, and distributing the
public water of Idaho.
------------------------------------------------------------------------
2560.03.4.d ``Require monitoring and The USFS does not have authority
mitigation appropriate to the scale to unilaterally require
and nature of potential effects . . mitigation for groundwater
. when authorizing a proposed use depletions. The state is solely
or Forest Service activity that has responsible for administering,
a significant potential to regulating, and distributing all
adversely affect NFS groundwater water rights in Idaho and for
resources.'' determining injury to a water
right.
The meaning of ``NFS groundwater
resources'' is unclear. The USFS
may hold water rights, but it
does not own all groundwater
underlying National Forest lands.
Groundwater is a public water of
the State of Idaho.
------------------------------------------------------------------------
2560.03.6.a ``Manage groundwater The meaning of ``manage'' is
quantity and quality on NFS lands unclear. The state is solely
in cooperation with appropriate responsible for administering,
state agencies . . . .'' allocating, and distributing the
public water of Idaho.
The USFS does not have authority
to control the water quantity or
water quality requirements for
water rights in Idaho. The state
is responsible for administering,
regulating, and distributing all
water rights in Idaho and for
determining injury to a water
right.
------------------------------------------------------------------------
2560.03.6.d ``Manage wellhead The meaning of ``manage'' is
protection areas, source water unclear. The state is solely
protection areas, and critical responsible for administering,
aquifer protection areas that are allocating, and distributing the
designated pursuant to the . . . public water of Idaho.
SDWA . . . or state equivalent.''
------------------------------------------------------------------------
2560.03.6.e ``Require written The state controls the terms and
authorization holders operating on conditions that may be placed on
NFS lands to obtain water rights in a water right. If the USFS wants
compliance with applicable state certain conditions to be placed
law, FSM 2540, and the terms and on a water right issued under
conditions of their state law, it must participate in
authorization.'' the state water right process.
------------------------------------------------------------------------
2560.03.8.a ``Require measurement The term ``corresponding written
and reporting to the Forest Service authorization of the quantity of
in the corresponding written water utilized'' is unclear. To
authorization of the quantity of the extent this means a state-
water utilized for all public issued water right, the state
drinking water systems that controls the terms and conditions
withdraw groundwater from NFS lands that may be placed on a water
and that are classified as right. If the USFS wants certain
community water systems under the conditions to be placed on a
SDWA.'' water right issued under state
law, it must participate in the
applicable state water right
process.
------------------------------------------------------------------------
2560.03.8.b ``Require measurement The term ``corresponding written
and reporting to the Forest Service authorization of the quantity of
in the corresponding written water utilized'' is unclear. To
authorization of the quantity of the extent this means a state-
water utilized for all groundwater issued water right, the state
withdrawals from high-capacity controls the terms and conditions
wells located on NFS lands . . . that may be placed on a water
.'' right. If the USFS wants certain
conditions to be placed on a
water right issued under state
law, it must participate in the
applicable state water right
process.
------------------------------------------------------------------------
2560.03.8.c ``Require measurement The term ``corresponding written
and reporting to the Forest Service authorization of the quantity of
in the corresponding written water utilized'' is unclear. To
authorization of the quantity of the extent this means a state-
water injected for those large issued water right, the state
water-injection wells located on controls the terms and conditions
NFS lands that open into a that may be placed on a water
geological formation containing right. If the USFS wants certain
fresh water . . . .'' conditions to be placed on a
water right issued under state
law, it must participate in the
applicable state water right
process.
------------------------------------------------------------------------
2560.04h.9 ``Appropriately address The state is responsible for
adverse impacts on groundwater administering, regulating, and
resources from proposed and distributing all water rights in
authorized activities such as by Idaho. To the extent the USFS
modifying the activities or believes its water rights are
adopting mitigation strategies.'' being injured by existing
authorized water use on National
Forest lands, it should seek
administration of its water right
through the applicable state
process.
------------------------------------------------------------------------
2561.2 ``groundwater resources of The meaning of ``NFS groundwater
NFS lands . . . NFS groundwater resources'' is unclear. The USFS
resources'' may hold water rights, but it
does not own all groundwater
underlying National Forest lands.
Groundwater is a public water of
the State of Idaho.
------------------------------------------------------------------------
2561.22.2 ``Require or recommend, as The USFS cannot require that a
appropriate, that . . . applicable state agency use certain lease
State agencies appropriate lease terms, design modifications, or
terms, design modification, and approval conditions.
approval conditions, as applicable,
to protect NFS groundwater re-
sources . . . .''
------------------------------------------------------------------------
2561.25.4 ``Provide to the The meaning of ``NFS groundwater
authorizing entity recommendations resources'' is unclear. The USFS
or requirements, as appropriate, to may hold water rights, but it
protect NFS water resources, does not own all groundwater
including whether the water underlying National Forest lands.
produced from geothermal resource Groundwater is a public water of
operations should be allowed to the State of Idaho.
discharge into surface drainages.'' To the extent the state is the
authorizing entity in these
matters, the USFS cannot require
it take certain actions.
------------------------------------------------------------------------
2562.1 ``When issuing or reissuing The state is solely responsible
an authorization or approving for administering, regulating,
modification of an authorized use, and distributing all water rights
require implementation of water in Idaho. To the extent the USFS
conservation strategies to limit believes its water rights are
total water withdrawals from NFS being injured by existing
lands . . . .'' authorized water use on National
Forest lands, it must seek
administration of its water right
through the applicable state
processes.
------------------------------------------------------------------------
2563.7.2 ``Ensure that all new and The meaning of ``NFS groundwater
reissued authorizations . . . resources'' is unclear. The USFS
provide for modification of their may hold water rights, but it
terms and conditions at the sole does not own all groundwater
discretion of the authorized underlying National Forest lands.
officer . . . to prevent the Groundwater is a public water of
authorized groundwater withdrawals the State of Idaho.
or injections from significantly The state is solely responsible
reducing the quantity or for administering, allocating,
unacceptably modifying the quality and distributing the public water
of surface or groundwater resources of Idaho. To the extent the USFS
on NFS lands.'' believes its water rights are
being injured by existing
authorized water use on National
Forest lands, it must seek
administration of its water right
through the applicable state
processes.
------------------------------------------------------------------------
2563.8.4 ``If monitoring detects The meanings of ``NFS groundwater
insufficiency of mitigation resources'' and ``groundwater
measures or additional or resources on NFS lands'' are
unforeseen adverse impacts on NFS unclear. The USFS may hold water
water resources from groundwater rights, but it does not own all
withdrawals or injections . . . groundwater underlying National
[a]dd monitoring or mitigation Forest lands. Groundwater is a
measures, change or limit the public water of the State of
activities authorized, modify the Idaho.
holder's operations, or otherwise The state is responsible for
modify the terms and conditions of administering, regulating, and
the authorizations if deemed distributing all water rights in
necessary . . . to prevent the Idaho. To the extent the USFS
authorized groundwater withdrawals believes its water rights are
or injections from significantly being injured by existing
reducing the quantity or authorized groundwater use on
unacceptably modifying the quality National Forest lands, it must
of surface or groundwater resources seek administration of its water
on NFS lands.'' right through the applicable
state processes.
------------------------------------------------------------------------
Congress and the courts have consistently recognized the authority
of states to manage, control, and administer water within each state's
boundaries. State administration of water should not be encumbered with
a parallel, duplicative, shadow administration of water by the USFS.
In summary, I urge the USFS to abandon this Directive and work
within state law to address its concerns regarding groundwater
resources issues in Idaho.
Sincerely,
Gary Spackman,
Director,
Idaho Department of Water Resources.
CC:
Stephen Goodson,
Cally Younger,
Clive Strong,
Garrick Baxter,
Shelley Keen.
Attachment 6
September 4, 2014
Ms. Elizabeth Berger,
U.S. Forest Service,
WFWART, 201 14th Street S.W.,
Washington, D.C.
RE: Proposed USFS Directive on Groundwater Resource Management, Forest
Service Manual 2560
Dear Ms. Berger:
Thank you for the opportunity to comment on the Groundwater
Directives proposed in Forest Service Manual (FSM) 2500 Chapter 2600,
published in Vol. 79, No. 87 of the Federal Register.
Groundwater resources in North Dakota are Waters of the State, as
defined in Article XI of the State Constitution, and are appropriated
for the beneficial use under Chapter 61-04 of North Dakota Century Code
and Article 89-03 of North Dakota State Administrative Code, under the
administration and authority of the State Engineer.
Insofar as the United States Forest Service (USFS) may consider its
land management authority to imply a right of ownership or control of
the groundwater beneath federally owned lands, it will be in conflict
with state authority defined under the North Dakota State Constitution
and under State Century Code which reserves all water as ``Waters of
the State'' to be held and appropriated for the beneficial use of its
citizens. The USFS Directive must be consistent with North Dakota State
law regarding water use jurisdiction, and must be modified to work
within and be consistent with state law regarding water ownership and
rights of beneficial use where necessary. Please consider the following
concerns and appended explanatory comments.
1. Remove assertions of Federal authority over groundwater. The
authority cited under Directive No. 2560.01 establishing a Federal
mandate for watershed management to protect and improve water resources
for multiple uses and improvement of navigable streams, cannot be
construed as Federal ownership of groundwater. Watershed management is
a land management practice for control of the movement and quality of
runoff to streams. It does not constitute a Federal authority over
groundwater beneath the land surface, which is a Water of the State.
Compliance with state law, as cited in several sections of the
Directive, must be based on a clear understanding of the primacy of
state jurisdiction over the allocation of its waters.
2. Remove Reserved Water Right Claims to groundwater. USFS proposed
directives should remove Directive No. 2567.3, which outlines a
strategy to ``Apply reserved water rights (the Reservation or Winters
doctrine) to groundwater as well as surface water.'' In this statement
USFS is proposing to employ reserved rights intended to allow Federal
facilities to achieve their purposes (water needs in National Parks,
etc.) in an expansive manner to create a Federal control over the
waters themselves. Groundwater has never been included as a Federal
reserved water right. To claim control over water-table elevations on
USFS lands as a Federal reserve right would constitute a serious
encroachment on state groundwater authority, and a clear attempt at
Federal overreach. USFS is reminded that it has no authority over
groundwater. Groundwater is Water of the State, and its appropriation
and protection are under state authority. USFS authorities are related
to land use. The state would oppose any attempts at establishing a
Federal Reserve Water Rights for purpose of limiting or federally
regulating groundwater use.
3. Remove the presumption of connectivity in Directive 2561.1.
Whenever groundwater/surface-water connections are important factors
they should be determined with due diligence (ref. appended Comment
I.a).
4. USFS cannot change state water appropriation law for its own
purposes. In North Dakota a water right requires a point of diversion,
and cannot be obtained for a natural flow, a spring, a water-table
elevation or other natural outlet. Directive No. 2560.03.6.e should be
modified as follows to accommodate state law: ``Obtain water rights
under when applicable under state law for groundwater and groundwater-
dependent surface water needed by the Forest Service (FSM 2540).'' This
issue, and hydrologic reasoning supporting the state position, is
discussed more fully in appended (ref. appended Comment 1.b).
5. USFS should not misconstrue its rights and prerogatives as
managers of Federal lands as inclusive of authority over groundwater.
Directive No. 2560.03.6.f, which directs USFS to ``evaluate all state
applications for water rights on USFS lands and neighboring lands . . .
and identify any potential injury,'' should be implemented with
recognition that water table elevations are not normally protected
under state law, which is permissive of beneficial use. USFS has the
right of every land manager to be a party of record to water permits
affecting its interests and to defend its interests. Much of the U.S.
Forest Service Directive Chapter 2560 pertaining to ground-water
resource management on USFS lands is consistent with existing developed
and long-standing North Dakota State programs in water appropriation,
water quality management, and the associated regulatory and data
acquisition and data management programs. Insofar as the Service is
using its authority, rights and prerogatives as land managers to
regulate the construction and operation of points of diversion on its
lands it is not in conflict with state jurisdictions. Moreover, USFS
has the right to examine, advocate and defend its interests with
respect to state appropriation of its waters in the same manner as any
other landowner. Directives requiring plans and documentation for
proposed uses (No. 2363), monitoring of pumping (Directive No. 2564),
cleanup of contaminated groundwater (Directive No. 2565), collaborative
strategies for sustaining groundwater uses (No. 2568), and for
cooperative monitoring of groundwater (No. 6 and No. 8 of Directive No.
2363) contain concepts that are consistent with current state law,
policy and practice and are reasonable land management prerogatives of
land managers if carried out by state authority. These are discussed
more fully in appended Comments 2.c-f.
However, Waters of the State are allocated under state law. The
protection of a water table elevation is not considered a right under
state law, it is evaluated under public interest considerations in the
permit process, and the value of the specific water-table resource must
be ``weighed and balanced'' against other public interest
considerations. USFS priorities will not be given primacy simply
because it is a Federal Government agency. This issue, and hydrologic
reasoning supporting the state position, is discussed more fully in
appended Comment 1.b.
6. Maintain flexibility with public and private beneficial use.
Directive No. 2563.3.1, which directs managers to ``Deny proposals to
construct wells on or pipelines across NFS lands which can reasonably
be accommodated on non-NFS lands and which the proponent is proposing
to construct on NFS lands because they afford a lower cost and less
restrictive location than non-NFS lands (FSM No. 2703.2) . . . '' is
unreasonable and should be modified (ref. appended Comment 1.c).
In Conclusion, USFS has repeatedly and appropriately recognized the
importance of state water appropriation law in obtaining water permits
in its directives. It should also recognize the permissive nature of
state law in granting those permits within state priorities,
particularly in relation to water use on non-Federal lands neighboring
USFS managed lands. Many of the priorities presented in the USFS
Groundwater Resource Management Directives for USFS managed lands can
be implemented cooperatively within the framework of state law. State
authorities have a willingness to work with groundwater issues of
concern to USFS. However, it is of the utmost importance that USFS
recognize that groundwater management and appropriation is a state
jurisdiction and that the waters themselves are Waters of the State.
USFS should work within the framework and limitations of the state
legal process in pursuing its objectives.
Respectfully,
Todd Sando, P.E.,
State Engineer.
comments
Proposed USFS Directive on Groundwater Resource Management
1. While the USFS directives frequently stress compliance with
state law, several elements of the proposed directives are problematic
and appear to be in conflict with the North Dakota State Constitution
and state law under which all waters are Waters of the State to be
appropriated for the beneficial use of its citizens, and therefore
under state authority.
(a) Directive No. 2561.1 directing land managers to: ``Assume
that there is a hydrological connection between groundwater and
surface water, regardless of whether state law addresses these
water resources separately, unless a hydrogeological evaluation
using site-specific data indicates otherwise,'' employs a value
judgment rather than a hydrologic principle, which amounts to a
policy of ``rebuttable presumption against use.'' Groundwater
is a Water of the State, and a permit for its use would not be
denied unless a substantial impact on a resource of major
importance is indicated with due diligence--not an assumption.
The assumption of connectivity should be removed.
(b) Directive No. 2563.3.6.e. ``Obtain water rights under
applicable state law for groundwater and groundwater-dependent
surface water needed by the Forest Service (FSM No. 2540)'' may
be problematic in principle, in that North Dakota cannot grant
a water right for a natural flow, a water table elevation, or a
groundwater contribution to a spring or other natural outlet. A
North Dakota State water right must have a point of diversion.
The State Engineer will consider the impact on surface-water
depletions as part of evaluating a water permit affecting
downstream permitted beneficial uses, or protection of local
surface water levels (under ``public interest'') in case of a
major resource (such as the Chase Lake Refuge, which has very
high value for wildlife habitat). However, state law is
permissive of ``beneficial use,'' and except in the case of a
demonstrable high value, the state does not treat surface water
exposures of aquifers as a protected priority over pumping
diversions for beneficial use--for reasons explained below.
Much of North Dakota's freshwater supply for municipal,
domestic, industrial and agricultural use is diverted from
shallow glacial aquifers, many of which discharge to gaining
streams, others of which comprise closed depression hydrologic
systems. Diversion through pumping must be recovered from river
discharges, or frequently by lowering of water tables (which
include surface exposures) through which evapotranspiration is
recovered. This hydrologic principle is known as
``developmental decline.'' In addition, water tables (and
surficial exposures) in the North-Central Plains are strongly
affected by climatic trends, which vary from extreme natural
depletion during multi-decadal droughts to large-scale land
flooding during the peaks of cyclical wet periods, such as
those prevailing since 1993 in North Dakota. Aquifer
sustainability within these systems is defined by periods of
partial depletion, followed by periods of replenishment--often
occurring quickly in large rainfall or snowmelt events. To
establish a policy by which water-table exposures are given
primary protection over other uses would be to render the
freshwater supplies unusable under most circumstances and, if
protected water elevations were established under wet
conditions, would furthermore give regulatory protection to
flooding of agricultural lands during the wettest phases of the
climatic cycles. For this reason, the state does not protect an
inefficient (shallow or inadequate) capture system, and hence
does not protect a water table surface, except where the
exceptional value of a surface-water body can be demonstrated
under ``public interest.'' Within the current system there are
inherent limitations on wetland depletions: For example
depletions of seeps and springs below levels required for
downstream prior appropriators' beneficial use in affected
rivers and streams to reasonably acquire their water is not
allowed under state water law and is considered in the
hydrologic analysis of the water permit process. Similarly,
groundwater depletions in closed depression areas of the
Central Dakota Aquifer Complex are limited by irrigable land
constraints. However, USFS cannot assume controlling authority
over the decision of the ND State Engineer, which weighs and
balances the public interest in all applications.
(c) Directive No. 2563.3.1, which directs managers to ``Deny
proposals to construct wells on or pipelines across NFS lands
which can reasonably be accommodated on non-NFS lands and which
the proponent is proposing to construct on NFS lands because
they afford a lower cost and less restrictive location than
non-NFS lands (FSM 2703.2)'' is unreasonably stated.
Furthermore, it contrasts with Directive No. 2560.7.c, which
directs managers to ``Encourage the use of water sources
located off NFS lands when the water use is largely or entirely
off NFS lands, unless the applicant is a public water supplier
and the proposed source is located in a designated municipal
supply watershed for that supplier (FSM No. 2542).'' Directive
No. 2560.7.c, as cited, aligns much better with provisions of
ND State law pertaining to water use and the public interest.
Under NDCC 61-01-04, ``The United States, or any person,
corporation, limited liability company, or association may
exercise the right of eminent domain to acquire for public use
any property or rights existing when found necessary for
application of water to beneficial use.'' Under ND State law
land control may not be used to impair water access and use in
projects involving the public interest. However, the cost-
benefit prohibition in relation to private interests, as
stated, is extreme. To unnecessarily cause private parties,
industrial or agricultural uses to incur additional costs in
obtaining water access or infrastructure when harm is minimal
would be irresponsible. It is suggested that the underlined
portion be deleted, and that it be specified that benefits of
access will be weighed against land use impact.
2. Several provisions of the Policy Directive which employ land use
practices for the purpose of surface-water quality and maintenance are
substantially within the authority of USFS and managers of federally
owned lands, but they are not absolute. The USFS is, in most cases,
entitled to exercise control or limitation of points of diversion
constructed on its lands through provisions of lease or contract
agreements with its tenants. USFS is also entitled to represent and
defend its interests as a party of record in the state water permit
process, both on its own lands and on neighboring lands; and to receive
any of the pertinent data or information obtained and used for water
regulation by the state. In the execution of these land-owner rights,
the directives need to distinguish between Federal land ownership
rights and state authority over groundwater use and control. Examples
include:
(a) Provisions of Directive No. 2363 requiring plan submittal
and documentation for new wells on USFS lands are reasonable
and within the rights of a land owner. Moreover, the right to
limit or deny infrastructure construction for private use
would, under most conditions, be within the rights of the USFS.
(b) Directive 6.f. ``Evaluate all applications to states for
water rights on NFS lands and applications for water rights on
adjacent lands that could adversely affect NFS groundwater
resources, and identify any potential injury to those
resources'' is within the right of any party under state law.
The USFS is entitled to be notified of any water permit
applications within 1 mile of its lands, or within twelve miles
of its public water systems. Furthermore, USFS may request to
be a party of record to any water permit application it
considers may affect its management priorities. USFS should be
aware, however, that while it has a right to present and defend
its interests, and while they will be investigated as part of
the permit process, USFS priorities will not necessarily be
more highly weighted than those of the applicants and other
parties, simply because USFS is a Federal entity. Impediments
to water permit requests must be deemed evident and not
theoretical, and must be substantial versus the applicants
interests.
(c) Directives for cooperative monitoring of groundwater
resources with state agencies and universities (Directive No. 6
and No. 8) are not in variance with current state efforts, for
which more water levels in more than 4,000 monitoring wells are
measured monthly or quarterly, and water chemistry is measured
approximately every 5 years, and more frequently as needed.
Also the State Health Department samples for pesticides and
other organic contaminants in vulnerable aquifers, including
those under USFS managed lands) every 5 years. All State Water
Commission data is available for the USFS, and anyone else, in
a web based data delivery system. Furthermore, the State
Engineer maintains an active ongoing groundwater exploratory
and investigative program, and cooperative investigative
efforts with USFS concerning vital issues is not out of the
question, depending on the circumstances. The State Engineer is
open to addressing USFS issues.
(d) Directive No. 2564 requiring ``Measuring And Reporting
Volume Of Extracted Or Injected Water'' is met by current state
use requirements. All permitted use is reported at least
annually (in some cases real time telemetric data is required),
and available for USFS examination. Injected water is regulated
by the ND Health Department.
(e) Directive No. 2565 requiring ``Cleanup Of Contaminated
Groundwater,'' and Directive No. 2563 requiring ``Source Water
Protection'' are currently provided under the state authority
of the ND Health Department.
(f) Directive No. 2568 requiring ``Strategies For Sustaining
Groundwater Resources'', through collaborative local state,
Federal and Tribal efforts to sustain the availability and
usability of groundwater over the long term; encouraging
conjunctive uses (like artificial recharge), and water transfer
when necessary are completely in line with state ``sustainable
use'' policy and a highly developed water use and monitoring
program that has been developed by the state over many years.
Attachment 7
Skip Canfield via e-mail,
Nevada State Clearinghouse,
State Land Use Planning Agency.
Re: USFS Proposed Directive on Groundwater Resources
On behalf of the Division of Water Resources, Office of the State
Engineer, I write to express our concerns with the U.S. Forest
Service's Proposed Directive on Groundwater Resource Management Forest
Service Manual 2560 (Directive), which was published in the Federal
Register for public comment on May 6, 2014. We believe there are many
problems with the Directive and offer the following discussion which is
intended to broadly address Nevada's concerns.
I. The Proposed Directive Is Founded Upon Questionable Legal Authority
We question the legal basis by which the USFS asserts it has
authority for the actions proposed in the Directive. The Directive
provides a lengthy recitation of statutes, Executive Orders and
regulations, which it asserts provide it with the authority to
``manage'' groundwater; however, our review of those citations of
authority do not support the USFS' position, nor does the Directive
contain analysis of how these cited authorities specifically authorize
the activities set forth in the Directive. While many of the
authorities stress the need to protect water resources and direct the
USFS to do through secondary activities which may be within the purview
of the USFS, none of the authorities provide the USFS with water rights
in groundwater or with any direct authority to ``manage'' groundwater.
We provide but a few examples below.
The Organic Administration Act of 1897 does not contain the basic
authority for water management, but rather ``defined the purposes for
which National Forests in the future could be reserved; and it provided
the charter for forest management and economic uses with the forests.''
U.S. v. New Mexico, 438 U.S. 696 (1978). Congress in the Organic
Administration Act provided that ``No National Forest shall be
established, except to improve and protect the forest within the
boundaries, or for the purpose of securing favorable conditions of
water flows, and to furnish a continuous supply of timber for the use
and necessities of citizens of the United States . . .'' Id. at 706-
707. National Forests were reserved for only two purposes--to conserve
the water flows (through the preservation of forest cover) and to
furnish a continuous supply of timber for the people. Ibid.
The objects for which the forest reservations should be made
are the protection of the forest growth against destruction by
fire and ax, and preservation of forest conditions upon which
water conditions and water flow are dependent. Id. at 708
(emphasis added).
This Act does not provide the USFS with the authority to manage
groundwater. Its authority is to manage the forest, which provides
watershed protection by forest coverage.
Weeks Act--The Directive indicates this Act authorizes the
Secretary of Agriculture to acquire forested, cut-over, or denuded
lands in the watersheds of navigable streams as necessary to regulate
the flow of navigable streams. This Act does not provide authority for
the USFS to assert it manages groundwater.
Multiple-Use--Sustained-Yield Act (MUSYA)--The Directive indicates
that this Act provides that watershed protection is one of the five co-
equal purposes for which USFS lands were established and are to be
administered. This is a misstatement of law and fact to assert that
this Act provides authority to ``manage'' groundwater. While the Act
provides that it is the policy that National Forests are established
and shall be administered for outdoor recreation, range, timber,
watershed and wildlife and fish purposes, the Act also declares that
these purposes are supplemental to the purposes for which National
Forests were established under the Organic Administration Act of 1897.
The U.S. Supreme Court in the case of U.S. v. New Mexico, 438 U.S. 696
(1978) specifically held that although the MUSYA broadened the purposes
for which National Forests had previously been administered, the
reserved water rights of the United States in unappropriated
appurtenant water had not been expanded beyond that necessary to
preserve timber or to secure favorable water flows in the National
Forests. The MUSYA does not provide the USFS with the authority to
``manage'' groundwater and did not expand any potential implied Federal
reserved right claim to include groundwater. The implied reserved
rights doctrine ``is a doctrine built on implication and is an
exception to Congress' explicit deference to state water law in other
areas. Without legislative history to the contrary, the Court concluded
that Congress did not intend in enacting the Multiple-Use Sustained
Yield Act of 1960 to reserve water for the secondary purposes
established.'' Id. at 715.
Federal Land Policy and Management Act--The Directive indicates
that this Act authorizes the issuance of rights-of-way for water
diversion, including wells, on USFS lands and, in doing so, it is
instructed to require the protection of the environment. This Act
instructs the USFS to protect the environment, but that does not extend
to it the right to ``manage'' groundwater.
Forest Service Directives (FSM 2540 and FSH 2509.1)--The Directive
indicates that these directives establish procedures for complying with
Federal policy and state water law and procedures for management of
watersheds on USFS lands that serve as a source of municipal water
supplies. These directives go to the heart of the matter, that being,
other than water rights that may be recognized under the implied
Federal reserved rights doctrine, the USFS has no authority to manage
the groundwater resources under USFS lands, and that management is the
responsibility of the states.
As can be seen by a limited review of the authorities cited for the
Directive, they are based on false premises. The same problem can be
seen with every single authority cited in the Directive, and there is
simply no authority for the USFS to do what it proposes through the
Directive.
II. Primary Authority and Responsibility for Groundwater Administration
Belongs to States
The USFS is not responsible for, and has no authority over
groundwater management. Rather, the states are entrusted with the
responsibility of administering and managing groundwater resources. The
USFS already has the right to participate as an applicant or protestant
on water right applications for the use of groundwater on the USFS
lands. It can apply for water rights itself for uses not covered under
implied Federal reserved water rights, but the objective set forth in
FSM 2560-2, ``to manage groundwater underlying USFS lands cooperatively
with states and Territories and Tribes'' misstates the law and proper
role of the USFS. Groundwater resources are not USFS resources, despite
that they may be located under USFS lands.
In 1935, the United States Supreme Court in the case of California
Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935)
interpreted three Acts--the Mining Act of 1866, 1870 amendment to
Mining Act and Desert Land Act of 1877--and held these three Acts
effectively severed all waters upon the public domain from the land
itself. The Court held that the three Acts indicate Congressional
intent to defer to state water law. It held that the first two Acts
confirmed that the water laws in western states would determine rights
in non-navigable water on public land and that the Desert Land Act of
1877 effectively severed all water upon the public domain from the land
itself. The Court held that all water on the public domain is public
juris [public right], and is subject to the plenary control of the
designated states.
These three Acts serve as the basis for the general rule that water
rights on public land must be acquired under state law and that the
states manage the groundwater on public lands. It is of great concern
to us that the USFS in its Directive states that a number of Federal
statutes direct or authorize water management on National Forest System
lands. We believe this is a misstatement of the law, and thus the
Directive in many instances, stands in direct contradiction to state
law.
Inasmuch as ``management'' is synonymous with affirmative acts to
control, handle, direct, regulate, take charge of or guide, we believe
that any ``management'' activity the Directive purports to authorize to
the USFS will directly infringe on and/or will erode the plenary
control of water resources by the states as announced by the U.S.
Supreme Court. The Directive itself recognizes that the USFS has the
right to participate in state appropriative or adjudicative
proceedings; however, now the USFS seeks to improperly insert itself
into the role of the states under the guise of ``cooperative''
management with the states.
What's more, Section 2560.03.7(c) provides that the USFS will
encourage the use of water sources located off USFS lands when the
water use is largely or entirely off USFS lands, unless the applicant
is a public water supplier and the proposed source is located in a
designated municipal supply watershed for that supplier (FSM 2542).
Although this section does not appear to directly attempt to usurp
state authority, it is nonetheless troubling that the USFS would
advance a general position against having points of diversion on USFS
land when the place of use is off USFS land, except for municipal
suppliers. The water resources belong to the citizens of Nevada and
Nevada rejects any broad-based policy of the USFS to block non-
municipal suppliers from appropriating groundwater on USFS lands.
III. The Proposed Directive Tramples State Law and Places an Increased
Burden on Water Applicants and Users
Section 2560.03.2--Water Resource Connectivity. The Directive
indicates that all surface water and groundwater resources will be
presumed to be hydraulically interconnected, and should be considered
as interconnected in all planning and evaluation activities, unless it
can be demonstrated otherwise using site-specific information. Nevada
does not assume that there is a single source unless proven otherwise.
Therefore, this provision is contrary to Nevada law. Moreover, the
policy appears to expressly recognize that some states treat it as
different sources, but the Directive disregards that fact. This may be
important in light of the fact that the Federal Register indicates that
after adoption of the Directive, all state and local laws and
regulations that conflict with the directive or that impede its full
implementation would be preempted. Nevada believes there has been no
express or even implied preemption of state law. If it came to pass
that Nevada were forced to adopt a presumption of hydraulic
connectivity, it would prove problematic due to the fact that it will
place additional burdens on water right applicants to disprove this
presumption, including determining what standards and methods will be
used to rebut the presumption.
Also, this broad treatment as a single source appears contradicted
by other portions of the Directive where USFS wants to treat them as
different sources for its own purposes. For example, Section
2560.03.7(b) provides that ``[s]ince groundwater sources generally have
more stable water quality and quantity than surface water sources,
favor development of suitable and available groundwater sources rather
than surface water sources for drinking water at Forest Service
administrative and recreational sites (FSM 7420).'' Here, the USFS
wants to treat surface water and groundwater separately for its own
interests, which is contrary to the broad policy it already indicated
which would be to treat them as one source. In short, the Directive is
internally inconsistent.
IV. Responsibility for Groundwater Management Still Resides With the
States, Despite the Directive's Attempt To Create Managerial
and Policymaking Roles Within the Directive
Section 2560.04--Responsibility. This section instructs specific
offices and directors to formulate, maintain, and train regarding
groundwater policy and procedures. Nevada is very concerned that those
policies and training be based in settled law and fact and the
Directive, as written, is not either. For example, Section 2567
subsection 3--Legal Considerations in Managing Groundwater Resources
instructs USFS personnel to apply state law when filing groundwater
claims during a state water rights adjudication and administrative
proceedings. However, it further instructs them to file claims under
the implied Federal reserved rights doctrine (Winters) to groundwater
as well as surface water to meet Federal purposes under the Organic
Administration Act, the Wild and Scenic Rivers Act, and the Wilderness
Act. The Directive instructs USFS personnel to assert claims to
groundwater which is not a settled question of law.
Section 2560.04(f)(1) instructs Regional Foresters to develop
agreements as needed with states, Tribes, other Federal agencies, and
private entities to investigate and assess USFS groundwater resources.
Nevada Revised Statute 532.170 provides that the State Engineer, for
and on behalf of the State of Nevada, is authorized to enter into
agreements with the United States Geological Survey, the United States
Soil Conservation Service, and any state agency, subdivision or
institution having jurisdiction in such matters, for cooperation in
making stream measurements, undergroundwater studies, snow surveys, or
any investigations related to the development and use of the water
resources of Nevada. The State Engineer has no authority to enter into
agreements with the USFS for this purpose.
Many of the other subsections in the Responsibility Section raise
concern. For example, subsection 2560.04(f)(3) instructs the USFS to
develop standards for the use, conservation and protection of USFS
groundwater resources. It is the states that develop the standards for
use of groundwater, not the USFS and these groundwater resources are
not USFS resources. Subsection 2560.04(f)(5) instructs the USFS to
ensure that training on groundwater resource management is available to
regional and forest staff and ensure that qualified groundwater
personnel are available to address groundwater issues, including
authorization of appropriate groundwater uses, in the region. It is the
states that have the authority to authorize appropriate groundwater
uses and the USFS should ensure that training addresses matters
factually and legally within the USFS jurisdiction.
Subsection 2560.04(5) instructs that all applications for water
rights under state water law on USFS or adjacent lands should be
evaluated for the potential to affect USFS groundwater resources. Here
again, the Directive keeps repeating that the groundwater under the
USFS lands is USFS water and this is again a misstatement of the law
and the facts.
Subsection 2560.04(6) instructs the USFS to coordinate and
implement agreements with Federal, state, and local agencies, Tribes,
and other interested parties for management and restoration of
groundwater resources. Again, ``management'' of groundwater resources
is used broadly, where USFS does not have authority to manage over the
jurisdiction of the state.
Consideration of Groundwater Resources in Forest Service Project,
Approvals and Authorizations
Subsection 2561.21--Locatable Mineral Mining. This section
instructs that the USFS can apply terms and conditions for the
reasonable use of groundwater for locatable minerals operations.
Reasonable use of either surface or groundwater in connection with
locatable mining must be authorized in an approved mining Plan of
Operations. The Federal Register described this section as only
clarifying that allowing use of groundwater for mining is a
discretionary action to be addressed through authorization in the
mining Plan of Operations. It is not the jurisdiction of the USFS to
condition the use of groundwater; the use of the groundwater is under
the jurisdiction of the state. The USFS may have jurisdiction on how
that water may be used on the land, but does not have jurisdiction over
the appropriation of said groundwater.
V. The USFS Failed To Consult the States in Promulgating the Proposed
Directive
Section 2560.03.6--Policy. This section indicates that the USFS
should manage groundwater quantity on USFS lands in cooperation with
appropriate state agencies, but in (6)(c) admits that others have the
authority to regulate the resource and in (6)(e) that the USFS must
obtain rights for many of its activities under state law. The authority
for the management of groundwater rests with the states and is not done
``cooperatively'' with the USFS. As already stated above, the USFS'
rights extend to participating in the state process for acquisition and
use of water as an applicant or protestant, but it goes too far to say
that the USFS has jurisdiction or any role as a manager of groundwater
resources.
We are troubled by the lack of state consultation in the
development of the Directive. The Directive asserts that it will not
have substantial direct effects on the states, on the relationship
between the Federal Government and the states, and the distribution of
powers between the various levels of government, which would require
compliance with the state consultation criteria set forth in Executive
Order 13132. However, as amply demonstrated above, we believe the
Directive implicates serious federalism concerns and significantly
impacts the states by infringing on state water rights. The assertion
of implied Federal reserved water rights to groundwater has the ability
to significantly impact state water rights and state water management.
We find it disturbing that the USFS found it significant enough to
consult with the Tribes under Executive Order 13175, but determined
that the states do not warrant similar consultation under Executive
Order 13132. The lack of consultation by the USFS is particularly
poignant in light of Section 3 of that Order, which states in pertinent
part that ``the national government shall grant the states the maximum
administrative discretion possible. Intrusive Federal oversight of
state administration is neither necessary nor desirable.'' Waiting
until the public comment period to solicit state input does not allow
for meaningful consideration of Nevada's views and concerns.
VI. Conclusion
We could provide additional examples of specific sections that
raise many of the same concerns. We request that the USFS abandon this
attempt to wrest control of groundwater management from Nevada through
the proposed Directive. Alternatively, at a minimum, we request the
USFS consult with Nevada and other western states before taking further
action on the Directive in order to address the foregoing concerns and
deficiencies. Thank you for your consideration of our concerns.
Sincerely,
Jason King, P.E.,
State Engineer.
Attachment 8
July 31, 2014
Groundwater Directive Comments,
USDA Forest Service,
Attn: Elizabeth Berger--WFWARP,
Washington, D.C.
Dear Ms. Berger:
Thank you for the opportunity to comment on the USDA Forest
Service's Proposed Directive on Groundwater Resource Management. The
Department of Environment and Natural Resources Water Rights Program is
the state agency responsible for regulating the use of water, including
groundwater, in South Dakota. Water use in the state has been regulated
since statehood, with water law updates in 1907, 1955, and 1983. South
Dakota is an appropriative right state.
South Dakota strongly opposes the USDA Forest Service's Proposed
Directive and requests USDA Forest Service withdraw the proposed
directive for the following reasons:
1. Lack of authority--The implementation of this proposed directive
expands the authority of a Federal agency with no Congressional
authorization and without regard or deference to state water
laws. The proposed directive states the Forest Service will
cooperatively manage resources with states and others with
common responsibilities, yet the Forest Service has no
authorized responsibility to manage groundwater. Rather, the
directive mandates the Forest Service to insert the agency into
groundwater issues on Forest Service and non-Forest Service
land, effectively circumventing state processes. This is
contrary to Federal court decisions, which have never
recognized a Federal reserved water right to groundwater.
2. Redundancy--The proposed directive contains a number of
regulatory redundancies, requiring the Forest Service to
conduct and provide oversight of activities regulated by other
Federal, state, and local entities and for which the Forest
Service has no regulatory authority. The proposed directive
also requires additional scientific personnel to conduct
projects that are the responsibility of other Federal and state
agencies. For example, the Forest Service is now directed to do
research and groundwater evaluations and assessments through
this proposal. This is commonly what the U.S. Geological Survey
and Environmental Protection Agency do. It is not only a
redundancy of responsibilities, it is doubling expenditures of
these activities in an already over-extended and unbalanced
Federal budget.
It is stated several times that all authorized Forest Service
activities and uses must be in compliance with applicable
Federal, state, or local standards. This is appropriate. The
proposed directive could be shortened to this statement because
all of the issues can be addressed by this one simple
statement, since the Forest Service has no authority itself in
the matters listed.
3. Unnecessary delays in and burdensome to state permit process--
The proposed directive requires the Forest Service to evaluate
all state water right applications on and adjacent to Forest
Service lands. In South Dakota, there is a state regulatory
process in which the Forest Service can intervene by petition
in a water right application. The Forest Service can
participate in the process of any water right application by
becoming a party to a contested case hearing. There is concern,
however, that the Forest Service will unnecessarily burden the
state agency by questioning every permit on or near Forest
Service land. This is especially concerning because the Forest
Service believes all groundwater and surface water is
hydraulically connected, and groundwater resources in South
Dakota, especially those underlying Forest Service land in the
Black Hills, are extensive in size. The Forest Service needs to
allow the state to do their job for which they have statutory
authority and not disrupt water use appropriation for which the
Forest Service has no statutory authority.
4. No scientific basis for ``groundwater ecosystems'' assumptions--
Assuming all surface water and groundwater is connected as
defined by ``groundwater ecosystems'' is simply not
scientifically based. The proposed directive makes this across
the board assumption and places the burden of proof on states
and users of water. The proposed directive should not include
the requirement to consider all groundwater and surface water
connected.
5. No time restrictions or due process clauses--There are many
items in the proposed directive requiring the Forest Service to
independently assess and evaluate groundwater use and impacts
to Forest Service resources, conduct research of groundwater,
and issue new and renew existing special use permits, which may
involve groundwater use. However, there are no time constraints
that the Forest Service is required to act and make a final
decision. There are also no due process options for permit
applicants. Delays to projects and plans by the water users
could be devastating during water shortages and financially
burdensome for applicants. The proposed directive must include
time limits for Forest Service reviews and other activities. It
should also include a process through which an applicant can
appeal any final Forest Service decision.
6. No state input--The Forest Service has not sufficiently engaged
states in its development of the Groundwater Directive. The
process your agency has pursued ignores the required state
consultation criteria established in Executive Order 13132.
This Order specifically directs Federal agencies to act in
strict accordance with governing law and to only preempt state
law where there is clear evidence that Congress intended such
preemption. The Order also requires Federal agencies to consult
with states to determine whether Federal objectives can be
obtained by other means in instances, such as this, where there
is significant uncertainty as to whether national action is
authorized or appropriate. Waiting until a public comment
period to solicit state input ignores states' primary water
management responsibilities and does not allow for meaningful
state input, including consideration of alternative ways of
meeting Federal objectives. The proposed directive should be
withdrawn until such time as the above issues can be resolved
with the input of state agencies with the authority to regulate
groundwater use.
In closing, any policies that assert Federal authority over
groundwater within Federal lands will have substantial direct effects
on state water rights, on the relationship between the Federal
Government and the states, and the distribution of power and
responsibilities among the various levels of government. In particular,
such an assertion will infringe upon our state's water management
activities and our water laws governing water use rights. Moreover, we
reiterate that the Forest Service does not have authority to preempt
state water laws related to water supply or water rights. Existing law
and policy clearly establish that water supply and water rights are
state and local issues.
We urge the USDA Forest Service to withdraw the proposed
Groundwater Directive.
Sincerely,
Steven M. Pirner,
Secretary,
CC:
South Dakota Attorney General's Office;
Shaun McGrath, Region 8 EPA, Denver;
Western States Water Council.
Attachment 9
August 19, 2014
Elizabeth Berger,
WFWARP,
Washington, D.C.
Re: Proposed Directive on Groundwater Resource Management, Forest
Service Manual 2560 (RIN 0596-AC51)
Dear Ms. Berger:
The Washington State Department of Ecology (Ecology) submits these
comments in the interest of role clarity, and to extend an offer of
cooperation regarding the Proposed Directive on Groundwater Resource
Management, Forest Service Manual 2560.
A tenet of western states water law is that states have primary
authority regarding water allocation decisions within their boundaries.
Historically, Congress has given substantial deference to states over
decisions to allocate and assign property rights to surface and
groundwaters within their borders.
Ecology understands the Forest Service has a legitimate interest in
ensuring that these resources are managed in a manner that supports the
purposes for which its Federal lands are managed. As discussed below,
Ecology believes this will best be accomplished by engaging with
respective states directly to share your concerns and identify
opportunities for information and data sharing. Many of the Forest
Service concerns can be addressed by engaging in existing state water
right permitting and water resource planning processes, and Ecology
would welcome the Forest Service's comments with respect to proposed
water appropriations that affect Forest Service resources. There are
approximately 400 pending applications for new water rights for
locations within National Forests in Washington State, as well as more
than 7,500 existing water right certificates, permits, and claims.
Ecology is the agency created to administer Washington State's
Water Management Program, including its comprehensive water quality and
water rights programs, and to present the views and recommendations of
the state regarding any Federal license or permit relating thereto at
any proceeding, negotiation, or hearing in such regard conducted by the
Federal Government, Wash. Rev. Code 90.48.260; Wash. Rev. Code
43.21A.020; Wash. Rev. Code 43.27A.090; Wash. Rev. Code 90.03.010;
Wash. Rev. Code 90.54.010; Wash. Rev. Code 90.58.010; 16 U.S.C.
803(a); and 16 U.S.C. 821. Ecology has the responsibility to issue
Section 401 certifications under the Clean Water Act. See Wash. Rev.
Code 90.48.260. Ecology also has the responsibility for issuing
National Pollution Discharge Elimination System (NPDES) permits,
certifying compliance with the Coastal Zone Management Act (CZMA), and
enforcing the state Shoreline Management Act (SMA). Moreover, Ecology
has statutory responsibilities in the matters of environmental review
and coordination pursuant to the State Environmental Policy Act (SEPA),
Wash. Rev. Code 86.16.010 et seq.
Groundwater Quality
The State of Washington has the authority to prevent pollution of
waters of the state including groundwater through the Water Pollution
Control Act, Wash. Rev Code 90.48. The Act established authority for
the state to adopt groundwater quality standards, in addition to water
quality standards for fresh and marine waters. In addition, Ecology can
require permits for discharges-to-ground (in the context of
groundwater) so that they do not pollute waters of the state. Typical
activities that are regulated include permits to discharge industrial
wastewater or stormwater to ground and registration of Underground
Injection Control wells (dry wells, large septic systems, and aquifer
injection remediation wells). Likely activities on Forest Service lands
would include mines, stormwater dry wells, and wastewater treatment
systems that discharge to ground. The Forest Service and Ecology's
Toxic Cleanup Program also cooperate on toxic cleanup sites such as the
Holden Mine in the context of contaminated groundwater.
Water Resources/Water Rights
The State of Washington enacted its Groundwater Code in 1945, Wash.
Rev. Code 90.44. The Groundwater Code established a groundwater water
right permitting system to be applied in conjunction with the existing
surface water right permitting system, Wash. Rev. Code 90.03. The
Groundwater Code also establishes that certain withdrawals are exempt
from the water right permitting system. Typical permit-exempt uses
found within Forest Service boundaries are small withdrawals associated
with domestic and seasonal residences, which may use up to 5,000
gallons per day. In addition, groundwater for stockwatering may be used
without limitation, provided the water is not simply wasted. Other
common uses include withdrawals associated with Forest Service
facilities, campgrounds, water supply, and hydropower electric
projects.
In addition, the State Legislature has directed Ecology to
implement the Columbia River Water Management Act, Wash. Rev. Code
90.90. The purpose of this 2006 Legislation is to develop new water
supplies ``to meet the economic and community development needs of
people and the instream flow needs of fish.'' The legislation directs
Ecology to ``aggressively pursue'' the development of water supplies.
This plan will include reservoir improvements to provide water supply
to the Yakima River basin for fish, communities, and agriculture. These
reservoirs have been in place and in use for many years as part of the
United States Bureau of Reclamations' Yakima Irrigation Project
authorized by Congress in 1905. As a member of the Yakima Basin
Integrated Plan Workgroup it is our expectation that the U.S. Forest
Service serve as a supportive and collaborative partner to implement
this vital, innovative, and broadly supported water management plan,
including already approved projects that will provide water for fish
and habitat.
Shared Interest in the Management of Groundwater Resources
Because we share an interest in protecting groundwater resources,
it is incumbent upon the Forest Service and Ecology to collaborate in a
manner that assures adequate review and oversight, while avoiding
wasteful duplication of effort and over-regulation of water users. Like
other states with water right permitting systems, Washington State has
considerable expertise and experience in assessing the impacts of
groundwater withdrawal proposals. Ecology believes that the Forest
Service would benefit from consultation with the state water resources
program to better understand how it can complement existing state
processes without duplicating them.
The potential areas of cooperation include:
(1) Communicating with each other regarding our respective review
processes for actions with potential groundwater impacts,
including process timing, key milestones, decision documents,
and opportunities for each party to participate and comment.
(2) Considering joint pre-proposal meetings with applicants and
other interested parties regarding projects that would affect
groundwater resources on Forest Service land.
(3) Sharing information regarding existing groundwater data (e.g.,
state well log and water right databases, identification of
water rights located on Federal land, and available groundwater
quality data) and discussing opportunities for data sharing.
(4) Cooperating on studies to characterize groundwater water
resources (including water quality) and impacts from actions
undertaken on Federal land.
(5) Exploring opportunities to ensure that state and Federal
regulators do not place contradictory study and monitoring
requirements on groundwater permit holders.
(6) Including state water right and water resources experts in
training of Forest Service staff regarding the management of
groundwater.
These forms of cooperation may be anticipated in Section 2560.03(6)
of the proposed directive. We support this expression of cooperation.
Ecology appreciates this opportunity to provide our views on the
proposed Groundwater Directive. If you have any questions or comments
regarding these comments, please contact Stephan Bernath of our Water
Quality Program at [email protected] or Jeff Marti of the
Water Resources Program at [email protected]. Thank you.
Sincerely,
Maia D. Bellon,
Director.
Attachment 10
September 3, 2014
Groundwater Directive,
Comments. USDA Forest Service,
Attn: Elizabeth Berger,
WFWART,
Washington, D.C.
Re: Proposed Directive on Groundwater Resource Management, Forest
Service Manual 2560
Dear Ms. Berger:
The Wyoming State Engineer's Office (WSEO) appreciates the
opportunity to comment on the Proposed Directive on Groundwater
Resource Management, Forest Service Manual 2560. This Proposed
Directive was published in the Federal Register, Vol. 79, No. 87 on
Tuesday, May 6, 2014.
The WSEO is responsible for the administration, regulation, and
adjudication of surface and groundwater rights in Wyoming, both of
which lay under the ownership and control of the state. Wyoming's
Constitution unambiguously addresses ownership of Wyoming's water:
``The water of all natural streams, springs, lakes or other collections
of still water, within the boundaries of the state, are hereby declared
to be the property of the state.'' Wyo. Const. art. 8 1; See also
Wyo. Stat. Ann. 41-3-101 (stating that water is always the property
of the state). The United States has approved Wyoming's constitutional
declaration of water ownership. See Farm Inv. Co. v. Carpenter, 61 P.
258, 264 (1900).
Wyoming holds title to water in a sovereign capacity as
representative of all the people for the purpose of guaranteeing that
the common rights of all are equally protected. Wyo. Const. art. 1
31: Merrill v. Bishop, 287 P.2d 620, 625 (Wyo. 1955); See also Farm
Inv. Co., 61 P. at 265. Wyoming constitutional and statutory provisions
charge the Board of Control and the State Engineer with the supervision
of the waters of the state and of their appropriation, distribution,
and diversion. Wyo. Const. art. 8 2, 5; See, e.g., Wyo. Stat. Ann.
41-4-502 through -511. The need for the state to control the use of
its limited and precious water resources compelled Wyoming's
declaration of water ownership, and its history of water law and water
administration that has since developed.
The purpose of these comments is to provide a response to this
Proposed Directive in regards to our concerns related to administration
and regulation of' Wyoming water rights and the Federal overreach into
areas not authorized by Federal law nor comporting with Executive
Orders.
Background
The United States Forest Service (USFS) asserts that its Proposed
Directive is intended to add Federal management responsibilities for
groundwater on USFS lands. It changes the Forest Service's national
policy on water management and challenges Wyoming's authority over
groundwater within our borders, including Wyoming's primacy in
appropriation, allocation, and development of groundwater. We disagree
with the USFS claim that the Proposed Directive does not harm state
rights. The assumptions, definitions, and new permitting considerations
contemplated under the Proposed Directive materially interfere with
Wyoming's authority over surface and groundwater, and will negatively
impact the state's water users.
Concerns
The Proposed Directive contains policy excursions for which we find
no authority, and proposes USFS roles that interfere with Wyoming's
management of its groundwater resource.
1. Authority for Groundwater Management and Rights. The USFS fails
to cite any Federal statute or court decision which provides
for or describes its authority to manage groundwater because
there is no such explicit authority under Federal law. After
reviewing all the authority citations provided in Section
2560.01, we find none that provide explicit authority over
groundwater.
In Section 2567, the Proposed Directive appears to assert Federal
reserved rights to groundwater. Specifically, in subsection 2,
it states ``Apply Federal reserved water rights (the
Reservation or Winters doctrine) to groundwater as well as
surface water to meet Federal purposes under the Organic
Administration Act, the Wild and Scenic Rivers Act, and the
Wilderness Act.'' Wyoming's position is that the USFS does not
have Federal authority over groundwater, nor does it have a
general, Federal reserved right to groundwater established in
Wyoming. There is no ability to ``apply'' Federal reserved
water rights by any method other than Congressional action, as
a result of U.S. Supreme Court or McCarren Amendment decisions,
or through properly approved agreement with the State of
Wyoming. It certainly cannot occur through simple assertion or
application, as this Proposed Directive appears to do.
2. Hydraulic Connectivity. Section 2560.03(2) of the Proposed
Directive states that surface and groundwater shall be
considered a single hydraulically interconnected resource,
unless it can be demonstrated that they are not. The Proposed
Directive reiterates this position in Section 2561(1). Under
Wyoming law, the burden lies with the USFS to prove a hydraulic
connection sufficient to warrant conjunctive administration,
not with individual appropriators to prove non-connection as
the Proposed Directive appears to assert. In many cases,
groundwater is not meaningfully connected to surface water, but
regardless Wyoming's presumption of non-connection is superior.
This is not to concede that there is even a legal basis for a
debate on this subject, since Wyoming water law controls the
permitting, adjudication, and regulation of surface and
groundwater rights on USFS lands within the state.
By way of example, in July 2013 the State Engineer issued a
permanent order covering water rights within the Horse Creek
Basin in Goshen County. The order covers both groundwater wells
and surface water diversions. Prior to the order, surface water
appropriators complained that junior priority groundwater wells
were causing surface water depletions in the Horse Creek Basin.
As per Wyoming Statute 41-3-916, in situations where
undergroundwaters and surface waters are so interconnected as
to constitute one source of supply, a single correlated
schedule of priorities related to whole common water supply may
be established. To analyze the existence of a sufficient
groundwater/surface water relationship (impact of adjacent
groundwater wells on surface water streams), the State
Engineer's Office contracted a technical study to determine the
connectivity or the two sources of supply. The study confirmed
the necessary connected relationship between groundwater wells
and surface water and therefore the two could be regulated
under a single schedule of priorities. This example
demonstrates how our statutes guide the State Engineer when
regulating ground and surface waters as a single source. The
USFS proposes to assert hydraulic connection of groundwater and
surface water without conducting a study, and pushes that
responsibility (to reverse that presumption) on our
appropriators. Establishing connectivity within a basin between
groundwater wells and surface water provides a means for the
State Engineer to regulate and administer water rights under
the doctrine of appropriation. Absent that authority, we fail
to see why the USFS would make such a presumption unless it was
somehow to interfere or affect future water right permitting
actions.
At a minimum, absent site specific analysis establishing
interconnectedness satisfying state law, we request that the
USFS incorporate into the Proposed Directive language which
states that the USFS will recognize and respect the laws of the
state within which it is operating.
3. Adjacent Lands. In Section 2560.03(6f), the Proposed Directive
seeks to give the USFS an administrative and approval role on
all applications on adjacent lands regarding groundwater
resources. Under subparagraph (4d) and (5), the USFS appears to
insert itself in groundwater permitting on and off forest
lands. The Directive furthermore uses the term ``adjacent''
which is not defined in the Directive. Groundwater permitting
decisions are a state function, not a USFS role, even on USFS
lands. This section further seeks to provide a groundwater
permit review and evaluation role for the USFS, without any
indication or what may come from such review or evaluation,
under what timeframe it might occur, or any standard of review.
The Snake and Salt River Basin of western Wyoming is an example.
Recent river basin planning work by the Wyoming Water
Development Office (WWDO) indicates Federal ownership of 2.95
million acres out of a total 3.27 million acres of land in the
basin. At 90 percent ownership by the Federal Government in the
basin (over \1/2\ of which is USFS), it is conceivable that the
USFS would deem the other ten percent state and private
ownership along inhabited river bottom land as ``adjacent,''
potentially having impact on ``groundwater dependent
ecosystems'' (in which groundwater originates on and from USFS
land). Under these definitions, proposals for new water uses on
downstream state and private surface could be viewed as a
potential cause of injury to forest values.
To illustrate how Wyoming has recognized Federal interests in
groundwater, Wyoming Statute 41-3-930(b) specifies that
applications for permits to appropriate groundwater within
fifteen miles of the boundary of Yellowstone National Park,
shall be accompanied by a written report containing necessary
information to show that the proposed development will not
impair or produce an injurious effect on the groundwater system
located within the boundaries of the Park. However, the Wyoming
Legislature has recognized no similar consideration for other
National Park Service lands, or any other Federal lands, in
Wyoming.
4. Conflict with recent Memorandum of Understanding. In January
2012, the USFS and the State of Wyoming entered into a
Memorandum of Understanding (MOU) that runs through calendar
year 2016. In this MOU, the USFS agreed to recognize and
respect the laws and Constitution of the State of Wyoming and
to honor permitting practices that applied equally to the
United States and to water right applications by Wyoming
citizens. The Proposed Directive, creating a Federal reach into
an area where states have been recognized as the exclusive
entity for water right permitting and administration, would
conflict with the recent MOU in the following ways:
a. The MOU says nothing about Federal reserved water rights.
b. The MOU says nothing about the USFS commenting on applications
on ``adjacent'' lands.
c. The MOU has a 30 day window for USFS comment only. The
Proposed Directive has no timeframe for, or standard of,
review.
d. The MOU provides for a courtesy notice for time-limited
applications. The Proposed Directive makes no mention of
time-limited uses of water.
c. The MOU is silent on any presumed connection between
groundwater and surface water.
f. The MOU places certain requirements on the USFS prior to
abandonment or changes of water rights. The Proposed
Directive is silent on the role of the USFS regarding
changes to or abandonment of water rights.
5. The Proposed Directive puts an undue burden on Wyoming water
users. From the proposed required measurement and reporting of
produced groundwater (paragraph 2563.3(2a) of the directive),
to the possible hydrogeologic studies needed to show that an
aquifer is not connected to surface waters (paragraph 2561(1)
of the directive). Wyoming appropriators will be faced with a
new slate of obligations and costs for water use on these
public lands.
The USFS has also indicated that they have no intention to usurp
the state role in water rights permitting or management, and
see the Proposed Directive as only assuring they are treated in
a manner consistent with other landowners. It is important to
remember that not only is the USFS already treated the same as
other landowners when it applies for permits to appropriate
water, or when it satisfies statutory standing requirements for
protest or other contested case procedures, it is immune from
condemnation actions to which private landowners are not when
access to water is concerned Wyo. Const. art. 1. 32). In this
regard, the USFS is already in a more favorable position when
acquiring or influencing water use facilities than is the
typical Wyoming landowner.
Examples of where we believe the Proposed Directive does impact the
State Engineer's water right permitting authorities:
a. USFS insertion into the permitting process itself where it
possesses no right or standing under state law. See section
2560.04h. It is unknown what role the USFS intends to play
as it determines impact or injury from water right
application review, when only the SEO, Board of Control, or
state courts have authority to make an injury
determination.
b. USFS intends to assert itself without a recognized right. By
inserting itself in the ``adjacent land'' review process
and otherwise, and through less-than-fully prescribed
application of the definitions of ``groundwater dependent
ecosystems'' and ``sustainable use,'' it is clear that the
USFS intends to assert itself and influence state-permitted
water right decisions within and beyond the reach of Forest
Service boundaries regardless of whether or not it holds
valid water rights.
6. Groundwater dependent ecosystems. Further, regarding the
treatment of ``groundwater dependent ecosystems,'' it is
unclear what authority the USFS asserts in protecting such
systems or whether or not attempts will be made to tie private
surface water or groundwater use proposals on adjacent lands
back to forest land by defining and extending such an ecosystem
to and through adjacent lands.
7. The Proposed Directive was created without state consultation.
By noticing the State of Wyoming along with the general public
in the May 6 release, the USFS denied the state an important
consultative role in a document which apparently has been in
the works for 8 years. The State of Wyoming is more than a
simple stakeholder--we follow a system of water laws under
which the Federal agencies are water users like anyone else.
Treating the state as a simple commenter on Federal directives
ignores the state's primary authority as recognized by the
President under Executive Order 13132, by Congress dating from
the 1800s including the McCarren Amendment (relied upon by the
states since 1952), and by the United States Supreme Court.
This action unacceptably diminishes Wyoming's sovereign role.
We encourage the USFS to retract the Proposed Directive especially
where concerns exist about the conflict with Wyoming's authority in the
permitting, administration and regulation of water rights. Thank you
for the opportunity to comment on the Proposed Directives.
Sincerely,
Patrick T. Tyrrell,
Wyoming State Engineer.
CC:
The Honorable Michael B. Enzi, U.S. Senate;
The Honorable John Barrasso, U.S. Senate;
The Honorable Cynthia Lummis, U.S. House of Representatives;
Nathan Bracken, Western States Water Council;
Chris Brown, Attorney General's Office.
The Chairman. Thank you, Mr. Willardson. Now I recognize
Mr. Shawcroft for 5 minutes.
STATEMENT OF DON SHAWCROFT, PRESIDENT, COLORADO FARM BUREAU,
CENTENNIAL, CO
Mr. Shawcroft. Thank you, Chairman Thompson, Ranking Member
Walz, Representative Tipton, and other Members of the
Subcommittee. Thank you for holding this hearing.
I am Don Shawcroft, a fourth-generation rancher from the
San Luis Valley of South Central Colorado. I am President of
the Colorado Farm Bureau, as mentioned, and a Member of the
Board of Directors of the American Farm Bureau Federation, the
nation's largest agricultural organization.
We have a strong interest in maintaining the longstanding
working relationship between Federal land management agencies
and public land ranchers. The proposed Forest Service
Groundwater Directive is one of critical concern for farmers
and ranchers, particularly those in the West where public land
grazing is a vital component of rural economies. As a matter of
law and process, this appears to be an effort by the
Administration to grant itself unprecedented control over
waters of the states and ultimately, greater control over the
natural resources in the West.
It is no secret that the Forest Service has long sought to
expand Federal ownership of water rights in the western United
States, and in recent years has repeatedly attempted to
circumvent state water rights and appropriation laws. There is
no provision in Federal law authorizing or permitting the
Forest Service to compel owners of lawfully acquired water
rights to surrender those rights to the United States.
The Farm Bureau's opposition of the Proposed Directive is
based on the government's lack of legal authority to regulate
groundwater. The Directive's attempt to expand Federal
authority through an interconnectivity clause and its
authorization of action is in violation of the takings clause
of the United States Constitution.
Despite the Forest Service citing the Organic Act and the
Weeks Act to justify the Directive, the Forest Service does not
have the authority to approve or disapprove uses of waters
which are granted under state water.
Inexplicably, the Forest Service also points to the Clean
Water Act as a source of legal authority for the Directive.
There is no explanation of how the Clean Water Act applies to
this Directive or how sections 303, 401, 402, or 404 of the
Clean Water Act provide any legal authority to the Forest
Service to regulate groundwater. The Groundwater Directive
proposes a new standard of interconnectivity by proposing to
``manage surface water and groundwater resources as
hydrologically interconnected and consider them interconnected
in all planning and evaluation activities.'' This presumption
implies that the agency has authority to manage, monitor, and
mitigate water resources on all National Forest Service lands.
Further, the Directive expands the Forest Service regulatory
scope of groundwater resources to a watershed-wide scale
including both Forest Service lands and adjacent lands and
private lands.
The Forest Service's attempt to use controversial Clean
Water Act terminology, such as hydrologic connection, to
establish its authority over water rights is misplaced and
unlawful. In fact, the Supreme Court specifically rejected the,
``any hydrological connection approach'' to Federal
jurisdiction in the Rapanos decision. While publicly, the
Forest Service claims the Directive would not infringe on the
states' authority, nor impose requirements on private
landowners, the facts speak otherwise. The Directive
specifically states that the agency is: ``to evaluate all
applications to states for water rights on National Forest
lands and application for water rights on adjacent lands that
could adversely affect National Forest Service groundwater
resources and identify potential injury to those resources.''
This language dangerously attempts to expand Federal authority
in approving state-granted water rights. This assumption of
Federal authority violates Federal and state statutes and will
ultimately upset water allocation systems and private property
rights on which western economies have been built. With the
exception of certain federally reserved rights, the states own
and manage water within their jurisdictions. Farm Bureau
supports the present system of appropriated water rights
through state law and opposes any Federal preemption of state
water law.
Last, the Directive would authorize actions that would
violate the takings clause of the United States Constitution.
Under the Forest Service terms and conditions, the agency will
now be able to require holders of water rights with permitted
activities on System lands to comply with the water clause and
to hold their water rights jointly with the United States.
Further, there is no reference in the Directive to the
government's obligations to pay just compensation for the
surrender to the government of privately held water rights,
legally adjudicated by the state. Water rights as property
rights cannot be taken without just compensation and due
process of law. Through statute and years of well-established
case law, states have developed a system that fairly
appropriate often scarce water resources to users. Because
water is the lifeblood of all farm and ranch operations, we are
concerned that the Federal Government continues to grossly and
willfully ignore the established system of water rights, even
after continued assurances it would respect them.
On behalf of Farm Bureau and tens of thousands of farmers
and ranchers in the West who depend on state-granted water
rights, I want to thank you again for addressing this important
issue and ask for your help in influencing and urging the
Forest Service to withdraw this Directive. I will be pleased to
respond to questions from Members of the Committee. Thank you.
[The prepared statement of Mr. Shawcroft follows:]
Prepared Statement of Don Shawcroft, President, Colorado Farm Bureau,
Centennial, CO
Chairman Thompson, Ranking Member Walz, Members of the
Subcommittee, thank you for holding this hearing. My name is Don
Shawcroft. I am a rancher from the San Luis Valley in Colorado. I am
President of the Colorado Farm Bureau and also serve as a board member
of the American Farm Bureau Federation, the nation's largest
agricultural organization representing farmers and ranchers who produce
virtually every agricultural product grown or raised commercially in
the United States. Farm Bureau has a strong interest in ensuring that
the longstanding relationship between Federal land management agencies
and public land ranchers is maintained, and I am pleased to offer this
testimony this morning on behalf of our organization.
The subject of today's hearing is one of critical importance for
farmers and ranchers, particularly those in the west where public land
grazing is a vital component of rural economies and where it provides
tremendous opportunities for American ranchers. Public benefits
provided by science-based grazing management include thriving,
sustainable rangelands, quality watersheds, productive wildlife
habitat, viable rural economies, reduction of wildfire hazards, and tax
base support for critical public services. The proposed Groundwater
Resource Management Directive (Directive) has raised substantial
concerns for two reasons. Number one, as a matter of law and process,
it appears to be an effort by the USDA Forest Service (Forest Service)
to grant itself, through an administrative proceeding, more authority
than it has been granted by Congress.
Should it succeed in this attempt, an agency of the Federal
Government would gain unprecedented control over waters of the states
through a purely administrative action, thus giving the Forest Service
greater control over the natural resources in the West. Second, on
substantive grounds, if this directive were to become effective, we
believe it holds the potential to significantly--and detrimentally--
impact the livelihood of farmers and ranchers.
In recent years the Forest Service repeatedly has attempted to
circumvent state water rights and appropriation laws. There is no
provision in Federal law authorizing or permitting the Forest Service
or the Bureau of Land Management to compel owners of lawfully acquired
water rights to surrender those rights or to acquire them in the name
of the United States.
U.S. farmers play a significant role in feeding seven billion
people in our world today and contribute to the financial well-being of
our country. Farm Bureau has identified a number of specific concerns
related to the formalization of the proposed directive that would
specifically impact landowners, farmers and ranchers. We are urging the
Forest Service to withdraw the proposed groundwater resource management
directive and hope the efforts of your Committee will help us in this
respect.
Ongoing Conflict in Colorado
It is no secret that the Forest Service has long sought to expand
Federal ownership of water rights in the western United States. In an
August 15, 2008, Intermountain Region briefing paper addressing
applications, permits or certificates filed by the United States for
stock water, the agency claimed, ``It is the policy of the
Intermountain Region that livestock water rights used on National
Forest grazing allotments should be held in the name of the United
States to provide continued support for public land livestock grazing
programs.'' Further, another Intermountain Region guidance document
dated August 29, 2008, states, ``The United States may claim water
rights for livestock use based on historic use of the water. Until a
court issues a decree accepting these claims, it is not known whether
or not these claims will be recognized as water rights.'' During a
Subcommittee on National Parks, Forests and Public Lands hearing on
March 12, 2012, the Forest Service testified, ``The Forest Service
believes water sources used to water permitted livestock on Federal
land are integral to the land where the livestock grazing occurs;
therefore, the United States should hold the water rights for current
and future grazing.'' Last, the Forest Service recently proposed new
policy to be included in the U.S. Forest Service manual concerning ski
area water rights. This proposal, which is currently under
consideration by the agency, would direct the Forest Service to require
the transfer of privately held water rights to the Federal Government
as a condition of a permit's renewal.
These conflicts have placed Colorado at the center of the ongoing
conflict over water rights with the Federal Government. Once the Forest
Service began putting pressure on Colorado ski resorts to sign over
water rights in exchange for receiving special use permits, it was only
a matter of time before agriculture appeared in the cross-hairs of the
Forest Service as well.
While the agency contends that the new ski area permit condition
will not require the transfer of water rights, the facts speak
otherwise. Forest Service manual 2441.32 (Possessory Interests), which
is currently being enforced, instructs the agency to continue to claim
the water rights of permitees. Specifically, section 2541.32 of the
2007 Forest Service Water Uses and Development Manual directs:
``Claim possessory interest in water rights in the name of
the United States for water uses on National Forest System
lands as follows:
1. Claim water rights for water used directly by the
Forest Service and by the general public on the
National Forest System.
2. Claim water rights for water used by permitees,
contractors, and other authorized users of the National
Forest System, to carry out activities related to
multiple use objectives. Make these claims if both
water use and water development are on the National
Forest System and one or more of the following
situations exists:
a. National Forest management alternatives or
efficiency will be limited if another party
holds the water right.
b. Forest Service programs or activities will
continue after the current permitee,
contractors or other authorized user
discontinues operations. ''\1\
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\1\ http://tipton.house.gov/press-release/tipton-forest-service-
waging-multiple-assaults-water-rights.
Documents obtained from the Forest Service website concerning Ski
Area Permit and the Water Rights Clause state, ``Clauses in special use
permits specify the terms and conditions with which the permit holder
must comply, and a permitee's failure to abide by them can be cause for
suspension or revocation of the permit.'' If the USFS is willing to say
one thing and do another on the requirement of transfer of water rights
for the ski areas, how long will it be before special use permits for
grazing will also contain the requirement to sign over water rights?
Moreover, will future non-compliance in the relinquishment of water
rights to the government be used by the Forest Service as a tool to
reduce grazing on public lands?
AFBF and Colorado Farm Bureau see these Forest Service actions as
another example of Federal overreach and a violation of private
property rights. To this end, we strongly support legislation
introduced by Representative Scott Tipton (H.R. 3189), which passed the
House of Representatives on March 3, 2014. This legislation would
ensure those who hold water rights yet utilize Federal lands through
BLM or Forest Service permits that their lawfully acquired rights will
not be abridged and that Federal agencies may not unlawfully use the
permit process to acquire rights they do not currently possess. Most
importantly, that legislation does not abridge anyone's rights--those
of individuals, the states or the Federal Government. It is simply a
reaffirmation of longstanding Federal policy. We are hopeful that the
Senate will take up and pass this important legislation.
Concurrently, the State of Colorado has worked to advance two
pieces of legislation, H.B. 13-1009 and H.B. 14-1028,\2\ that would
have prevented the Federal Government from obtaining water rights
through coercion and placed restrictions on the Federal Government if
it did obtain water rights. Unlike many other western states, the
Colorado water courts adjudicate water rights in the first instance
without any administrative, water rights permitting system, resulting
in much water rights litigation.\3\ The mere fact that a state would
move in an attempt to prevent the Forest Service from completing its
action should show that the Forest Service's actions are concerning.
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\2\ http://www.leg.state.co.us/CLICS/CLICS2014A/csl.nsf/
BillFoldersAll?OpenFrameSet.
\3\ http://www.justice.gov/enrd/3245.htm.
---------------------------------------------------------------------------
At the same time that the agency sought to take water rights from
Federal ski area permit holders, the Forest Service introduced its
proposed Groundwater Directive in the Federal Register on July 31,
2014. While Forest Service Chief Tom Tidwell claimed, ``The goal is to
improve the quality and consistency of our approach to understanding
groundwater resources on National Forest System lands, and to better
incorporate consideration of those resources to inform agency decision-
making,'' it conveniently included a number of the same provisions
aimed at transferring privately held water rights to the Federal
Government and greatly expanding its regulatory control of groundwater,
which is controlled by the states.
Lack of Legal Authority
One of our primary criticisms of the proposed Groundwater Directive
is that the agency lacks legal authority to regulate groundwater in the
manner proposed by the Forest Service. The Organic Administration Act
of 1897 (Organic Act) vests the Forest Service with the authority to
manage surface waters under certain circumstances. The statute provides
no authority for management of groundwater. Nor does the Multiple-Use
Sustained-Yield Act of 1960 (MUSYA) provide the agency with authority
over groundwater. That statute merely provides ``that watershed
protection is one of five co-equal purposes for which the NFS lands
were established and are to be administered.'' 2560.01(1)(f). See
United States v. New Mexico, 438 U.S. 696, 713 (1978).
The Forest Service cites several statutes, including the Organic
Act, the Weeks Act and MUSYA, to frame its expansive regulatory view in
seeking authority to manage groundwater. The agency incorrectly
interprets the purposes for which water is reserved as a provision of
the Organic Act. The Organic Act simply authorizes the Forest Service
to manage the land, vegetation and surface uses. The Act does not
provide authority to manage or dispose of the groundwater or surface
waters of the states based on the agency declared ``connectivity.''
The Weeks Act states, ``The Secretary of Agriculture is hereby
authorized and directed to examine, locate, and purchase such forested,
cut-over, or denuded lands within the watersheds of navigable streams
as in his judgment may be necessary to the regulation of the flow of
navigable streams or for the production of timber.'' 16 U.S.C. 515.
The Forest Service inappropriately attempts to use this reference of
``navigable streams'' to include regulation of groundwater, which is
not referenced in the Weeks Act.
The United States Supreme Court has gone to great lengths to bring
clarity to the scope of the Organic Act's determination that Federal
authority extends only to prudent management for surface water
resources. In United States v. New Mexico, the Court defined prudent
management to:
(1) ``secure favorable water flows for private and public uses
under state law,'' and
(2) ``furnish a continuous supply of timber for the people.''
The agency authority is narrowed to proper management of the
surface to achieve the specific purpose of the Organic Act--not the
direct management of the groundwater and agency-declared interconnected
surface waters. MUSYA does not expand the reserved water rights of the
United States. United States v. New Mexico, 438 U.S. 696, 713 (1978).
Additionally, the court denied the Forest Service's instream flow claim
for fish, wildlife and recreation uses. Specifically, the court denied
the claim on the grounds that reserved water rights for National Forest
lands established under the Forest Service's Organic Act of 1897 are
limited to the minimum amount of water necessary to satisfy the primary
purposes of the Organic Act--conservation of favorable water flows and
the production of timber--and were not available to satisfy the claimed
instream flow uses.\4\
---------------------------------------------------------------------------
\4\ http://www.justice.gov/enrd/3245.htm.
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Inexplicably, the Forest Service also points to the Clean Water Act
as a source of legal authority and direction for the directive. 2560.01
There is no explanation of how the Clean Water Act applies to this
directive or how sections 303, 401, 402 or 404 of the Clean Water Act
(cited in the directive) provide any legal authority to the Forest
Service to regulate groundwater. The Clean Water Act does not even
grant the Federal Government jurisdiction over groundwater. At a
minimum, Federal agencies must provide a modicum of justification for
any claim of legal authority, particularly when the Forest Service has
no authority whatsoever to implement the Clean Water Act.
Expansion of Federal Authority through Interconnectivity Clause
The directive proposed a new standard of interconnectivity
[2560.03(2)] by proposing to ``manage surface water and groundwater
resources as hydraulically interconnected, and consider them
interconnected in all planning and evaluation activities, unless it can
be demonstrated otherwise using site-specific information.'' Presuming
that all groundwater and surface waters are interconnected implies the
agency has authority to manage, monitor and mitigate water resources on
all NFS lands. This assumption of Federal authority violates Federal
and state statutes and will ultimately upset water allocation systems
and private property rights on which western economies have been built.
In an era of limited Federal budgets, this attempt to expand the reach
of the agency into individual and state activities is particularly
inappropriate.
Whether or not water is ``connected'' is not the sole, or even most
critical, factor for asserting regulatory authority. The Forest
Service's attempt to use extremely controversial Clean Water Act
terminology such as any ``hydrological connection'' to establish its
authority over water rights is totally misplaced and unlawful. In fact,
the Supreme Court specifically rejected the ``any hydrological
connection'' approach to Federal jurisdiction. Rapanos et ux., v.
United States 547 U.S. 715 (2006).
Further, the directive expands current Forest Service regulatory
scope of groundwater resources to a watershed-wide scale, including
both Forest Service lands and adjacent non-Federal lands. Specifically,
the new policy states the agency will, ``evaluate and manage the
surface-groundwater hydrological system on an appropriate spatial
scale, taking into account surface water and groundwater watersheds,
which may or may not be identical and relevant aquifer systems,'' and
``evaluate all applications to states for water rights on NFS lands and
applications for water rights on adjacent lands that could adversely
affect NFS groundwater resources, and identify any potential injury to
those resources or Forest Service water rights under applicable state
procedures (FSM 2541).'' This is an unprecedented attempt to expand
Federal authority in approving state-granted water rights.
With the exception of federally reserved rights that are
specifically set out either in statute or recognized by the courts, the
states own and manage the water within their jurisdictions. The manner
in which states regulate water rights differs substantially,
particularly between western states, where the appropriation doctrine
is common, and eastern states where the riparian system is in more
general use. Farm Bureau supports the present system of appropriation
of water rights through state law and opposes any Federal vitiation or
preemption of state water law. Water rights as property rights cannot
be taken without compensation and due process of law. There is no legal
or policy basis for the Forest Service to insert itself in this
regulatory arena by attempting to use the permitting process to
circumvent state water law or force existing water rights holders to
relinquish their rights.
Without clear Congressional authorization, Federal agencies may not
use their administrative authority to ``alter the Federal-state
framework by permitting Federal encroachment upon traditional state
power.'' In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S.
Army Corps of Engineers, 531 U.S. 159 (2001).
Although SWANCC was decided in the context of the Clean Water Act,
the legal principle is the same: Federal agencies must have clear
Congressional direction before altering the balance of Federal and
state authorities. The Forest Service has none here. It is clear that
by proposing to manage the groundwater resources and interconnected
surface waters within the states on a massive watershed basis, the
Forest Service's proposed directive exceeds the agency's statutory
authority and seeks to redefine the Federal-state framework. The manner
in which the directives insert the Forest Service in the evaluation of
``all applications to states for water rights on NFS lands and
applications for water rights on adjacent lands'' (FSM 2560.03(6)(f)),
contravenes this federally established system of deferral to the
states. The Forest Service cannot and should not act where
Congressional authority has not been granted to it.
Constitutional Takings Violation
The directive would authorize actions that would violate the
takings clause of the United States Constitution. The 5th Amendment
provides protections for citizens from government takings of private
property without just compensation. The directive provides that the
Forest Service would be required to ``obtain water rights under
applicable state law for groundwater and groundwater-dependent surface
water needed by the Forest Service (FSM 2540)'' and ``[Require] written
authorization holders operating on NFS lands to obtain water rights in
compliance with applicable state law, FSM 2540, and the terms and
conditions of their authorization.''
Requiring written authorization for permitted uses including
livestock grazing on NFS lands provides a vehicle for the agency to
obtain water rights based on the permitee's agreement to comply with
the ``terms and conditions of the conditional use authorization.''
Under the Forest Service's terms and conditions [FSM 2541.32], the
agency will now be able to require holders of water rights with
permitted activities on system lands to comply with the water clause
and to hold their water rights ``jointly'' with the United States.
Further, there is no reference in the directive to the government's
obligation to pay just compensation for the surrender to the government
of privately held water rights legally adjudicated by the state.
We believe in the American private, competitive enterprise system
in which property is privately owned, privately managed and operated
for profit and individual satisfaction. Any action by government that
diminishes an owner's right to use his property constitutes a taking of
that owner's property. We oppose any government entity taking private
property by adverse possession without just compensation.
Through statute and years of well-established case law, states have
developed systems to fairly appropriate often scarce water resources to
users. Because water is the lifeblood for all farm and ranch
operations, we are outraged that the Federal Government continues to
grossly and willfully ignore the established system of water rights,
even after continued assurances it would respect them.
On behalf of Farm Bureau and tens of thousands of farmers and
ranchers in the west who depend on our water rights, I want to thank
you again for inviting us to testify on this important issue. I will be
pleased to respond to questions from Members of the Committee.
The Chairman. Thank you, Mr. Shawcroft. Now I am pleased to
welcome our third and final panelist for this hearing. Mr.
Verhines, go ahead, sir. You have 5 minutes.
STATEMENT OF SCOTT A. VERHINES, P.E., NEW MEXICO STATE
ENGINEER, SANTA FE, NM
Mr. Verhines. Good morning, Chairman Thompson, Members of
the Committee. Thank you for the invitation to testify here
today. As the State Engineer, I hope to provide you with one
western state's perspective on this issue as the senior water
management official in New Mexico.
In the business of water administration in the West, our
words and the terminologies we use have meaning, and the
context in which they are used is important. They can raise red
flags as the Proposed Directive has done here with our agency
in our state.
My overarching concern simply put is that the Forest
Service lacks the authority to manage New Mexico's groundwater
or to place any conditions on the exercise of private property
rights to the use of groundwater established under New Mexico
law. Under New Mexico law, the State Engineer is charged with
the supervision of all waters, including groundwater within the
boundaries of the state and the measurement, appropriation, and
distribution thereof, responsibilities we take very seriously
and we do all day, every day. Consequently, we will engage
directly on any apparent assertion of new authority by another
agency over groundwater or over private holders of groundwater
rights developed under state law.
The Proposed Directive begins with the stated objective to
manage groundwater underlying NFS lands cooperatively with the
states, suggesting that the Service has equal authority with
the states to manage groundwater. None of the statutes or other
authorities cited in the Proposed Directive provides such
authority.
The term NFS groundwater resources repeated frequently
throughout the Proposed Directive is ambiguous. It could refer
to groundwater rights that the Forest Service may hold or
suggest all state groundwater resources beneath Forest Service
lands.
The Forest Service also lacks any authority to regulate the
diversion and use of groundwater or to impose conditions on the
exercise of rights to use groundwater developed under New
Mexico law. While the Forest Service does have the authority to
include conditions to protect Federal resources in special use
permits governing the use of Federal lands, New Mexico's
groundwater is not such a resource.
Any Proposed Directive should state unequivocally that all
rights to the diversion and use of groundwater established
under state law are private property rights that must be
recognized by the Forest Service and may not be restricted or
limited by provisions in any special use permit by the Service.
The Service also has no authority over the process by which any
state issues groundwater rights, and the Service therefore may
not dictate how the New Mexico water permitting process
proceeds or when it begins. New Mexico system of water rights
administration provides water right owners with certainty upon
which they can make appropriate technical and financial
decisions. Under New Mexico water law, once a water right is
established by beneficial use, it can only be lost by common-
law abandonment, statutory forfeiture, or failure to comply
with permit conditions. The adjudication or permitting of water
rights under New Mexico law affords the Service full
opportunity to challenge the nature and extent of groundwater
rights that originate within National Forest lands.
As a pertinent example, and we are dealing with this one
today, the Village of Ruidoso, New Mexico, is already
experiencing an attempt by the Forest Service to limit the
amount of water they may divert under existing groundwater
rights for wells located within National Forest lands. The
village is currently in the process of renewing its special use
permit for municipal wells within the Lincoln National Forest.
The Service has proposed to dramatically cut back the quantity
of water that the village may divert and use in order to
protect aquatic habitats, streamside recreational uses, and
other water uses that are not recognized as part of the Lincoln
National Forest Federal reserve water right.
I am particularly concerned about the Proposed Directive's
instruction to Forest Service officials to assert claims for
Federal reserve water rights to groundwater in state water
rights' adjudications and administrative proceedings. To our
knowledge, no Federal court has ever recognized a Federal
reserved right to groundwater.
I urge the Service to work with my office to establish or
obtain under New Mexico State water law whatever groundwater
rights are necessary to support the Service's activities.
While we can appreciate the Forest Service's interest in
the protection of groundwater resources, for over 5 decades New
Mexico has developed an exclusive and a comprehensive
administrative process to conjunctively manage our state's
surface water and groundwater.
In conclusion, in the business of water administration in
the West, our words and terminologies have meaning, and they
are a very important meaning and they have potential
consequences. I urge the Forest Service to withdraw the
Proposed Directive and to address through New Mexico State
water law the Service's interest in protecting groundwater
resources within our state. Mr. Chairman, thank you for the
opportunity to be here today.
[The prepared statement of Mr. Verhines follows:]
Prepared Statement of Scott A. Verhines, P.E., New Mexico State
Engineer, Santa Fe, NM
Thank you for the opportunity to testify today regarding the U.S.
Forest Service's Proposed Directive on Groundwater Resource Management,
Forest Service Manual 2560, published on May 6th in the Federal
Register. As the New Mexico State Engineer, I am able to provide you
with our perspective as the state's top water management official on
this proposed directive.
My principal concern regarding the Proposed Directive is that the
United States Forest Service lacks authority to manage New Mexico's
groundwater or to place any conditions on the exercise of property
rights to the use of groundwater established under New Mexico law.
Under well-settled Federal and state law, the State of New Mexico has
primary and exclusive authority over all groundwater within New
Mexico's borders. Our state Legislature has delegated to the State
Engineer the authority to implement the New Mexico law of prior
appropriation for the state's waters, including groundwater.
Nevertheless, despite New Mexico's long-standing primacy over
groundwater within the state, the Proposed Directive appears to be
based on the mistaken premise that the Forest Service has authority to
manage groundwater and purports to allow Forest Service officials to
impose conditions or otherwise limit the exercise of state-based water
rights on Forest Service lands within New Mexico.
The 1877 Desert Lands Act severed all non-navigable waters in the
public domain from the land itself and left those waters to the control
of the territories and states for appropriation for beneficial use. The
U.S. Supreme Court in the 1935 California Oregon Power Co. case
confirmed that after the 1877 Act all non-navigable waters, including
groundwater, were subject to the plenary control of the territories and
their successor states. Federal law has been clear for nearly a century
that the states have primary and exclusive authority over the
allocation, administration, and development of all groundwater within
their borders.
The New Mexico water code declares all undergroundwater within the
state to belong to the public and to be subject to appropriation for
beneficial use. NMSA 1978, 72-12-1 (2003). Our Supreme Court has
ruled that the State of New Mexico owns all surface water and
groundwater within its boundaries:
All water within the state, whether above or beneath the
surface of the ground belongs to the state, which authorizes
its use and there is no ownership in the corpus of the water
but the use thereof may be acquired and the basis of such
acquisition is beneficial use . . . . The state as owner of
water has the right to prescribe how it may be used.
State ex rel. Erickson v. McLean, 62 N.M. 264, 271, 308 P.2d 983, 987
(1957); see also Holguin v. Elephant Butte Irrigation Dist., 91 N.M.
398, 402, 575 P.2d 88, 92 (1977) (``[W]ater belongs to the state which
authorizes its use. The use may be acquired but there is no ownership
in the corpus of the water''); Tri-State Generation and Transmission
Ass'n, Inc. v. D'Antonio, 2012-NMSC-039, 14 (``a water right is a
limited usufructuary right'').
Under New Mexico law, the State Engineer is charged with the
supervision of all waters, including groundwater, within the boundaries
of the state, and the measurement, appropriation, and distribution
thereof. NMSA 1978, 72-2-1 (1982). The State Engineer seeks to
judiciously and consistently manage the state's surface and groundwater
resources and administer the rights to use those resources. The State
Engineer administers water rights based upon Federal and state court
decrees, permits and licenses issued by the State Engineer, and
declarations of water rights filed with the State Engineer. As the
state official to whom the New Mexico Legislature has delegated broad
authority over New Mexico's water, including groundwater beneath
Federal lands, the State Engineer has a particular interest in any
apparent assertion of new authority by the Forest Service over New
Mexico groundwater or over private holders of groundwater rights
developed under state law.
The Proposed Directive begins with the stated objective ``[t]o
manage groundwater underlying NFS lands cooperatively with states . . .
.'' Section 2560.02(1). This statement suggests that the Forest Service
has equal authority with the states to manage groundwater. In
actuality, the Forest Service lacks any authority to manage
groundwater, let alone authority co-equal with that of the states. None
of the statutes or other authorities cited in Section 2560.01 provides
such authority.
The term ``NFS groundwater resources,'' repeated frequently
throughout the Proposed Directive (see, e.g., 2560.02(2) and (3);
2561(2)), demonstrates the ambiguity and confusion of authority
underlying the Directive. This term is not defined. It could refer to
groundwater rights that the Forest Service may hold, or to all state
groundwater resources beneath Forest Service lands. This confusion is
caused by the possessive modifier ``NFS,'' which incorrectly implies
Forest Service ownership of or authority to manage groundwater
underlying Forest Service lands. This, of course, is directly contrary
to the recognition by Congress and the Supreme Court that the states
own and have exclusive authority to manage and regulate all groundwater
within their borders. Unless the Forest Service obtains a right to
divert and use New Mexico groundwater under state law, it has no right
to use or claim any ownership interest in the groundwater resources
underlying Forest Service lands in New Mexico simply by virtue of its
ownership of those lands. As a result, the term ``NFS groundwater
resources'' should be specifically defined to include only those
groundwater resources in which the Forest Service has obtained a legal
interest under state water law.
The Forest Service also lacks any authority to regulate the
diversion and use of groundwater or to impose conditions on the
exercise of rights to use groundwater developed under New Mexico law.
Nonetheless, the Proposed Directive appears based on the assumption
that the Forest Service has such authority. For example, Section
2562.1(3) directs Forest Service officials, when issuing or reissuing
an authorization, to require implementation of water conservation
strategies to limit total water withdrawals as deemed appropriate by
the authorized officer. In addition, the Proposed Directive asserts
that the Forest Service has the continuing authority to impose
conditions on the exercise of state law-based groundwater rights
developed on Forest Service lands. Specifically, Section 2563.7(2)
directs that any new or reissued authorization involving a groundwater
well provide for modification of the authorization at the sole
discretion of the authorized officer if deemed necessary to prevent
groundwater withdrawals from significantly reducing the quantity of
surface or groundwater on NFS lands.
These provisions would interfere with the ability of water right
owners to exercise the property rights to the use of groundwater that
they have established under New Mexico law. While the Forest Service
has the authority to include conditions to protect Federal resources in
special use permits governing the use of Federal lands, New Mexico's
groundwater is not such a resource. The assertion in the Proposed
Directive of continuing authority for the Forest Service to reevaluate
and impose additional restrictions on the exercise of New Mexico
groundwater rights threatens to undermine the finality of water rights
decisions made by the courts and the State Engineer by requiring water
right owners to continue to submit to the Forest Service in order to
exercise those property rights. The Proposed Directive should state
unequivocally that all rights to the diversion and use of groundwater
established under state law are property rights that must be recognized
by the Forest Service and may not be restricted or limited by
provisions in any special use permit issued by the Service.
New Mexico's system of water rights administration provides water
right owners with certainty upon which they can make appropriate
financial decisions. Under New Mexico water law, once a water right is
established by beneficial use it can only be lost by common law
abandonment, statutory forfeiture, or failure to comply with permit
conditions. Contrary to Federal and state law, the Proposed Directive
attempts to give the Forest Service the power through its periodic
special use permitting process to modify or even cancel the ability of
a groundwater right owner to exercise their property right. Under the
Proposed Directive, the right to continue to divert and use groundwater
would be dependent not just upon beneficial use, but also upon periodic
review by Forest Service officials. This would create instability and
uncertainty that would be unacceptable for New Mexico and its
groundwater rights owners.
Provisions such as Sections 2562.1(3) and 2563.7(2) also would
interfere with the State Engineer's exclusive authority to administer
property rights to New Mexico groundwater. Policy directives,
especially those that seek to impose additional administrative
processes relating to groundwater, have a direct impact on the State
Engineer's administration and management of water within New Mexico.
The Proposed Directive attempts to establish an additional layer of
administrative oversight over groundwater that would duplicate parts of
the State Engineer's existing comprehensive system of administration
for groundwater rights. This would generate uncertainty and confusion
and undermine New Mexico's primary and exclusive authority over
groundwater.
Section 2563.2(1) provides: ``[w]hen a state-issued water right or
one or more state or local approvals are needed for a water
development, the process for securing state water permits, licenses,
registrations, certificates, or rights should proceed concurrently with
the Forest Service process for authorizing use and occupancy of NFS
lands for a water development.'' The Forest Service has no authority
over the process by which any state issues groundwater rights, and the
Service may not dictate when the New Mexico water permitting process
begins or how it proceeds.
The adjudication or permitting of water rights under New Mexico law
affords the Forest Service the full opportunity to challenge the nature
and extent of groundwater rights that originate within National Forest
lands. The water right determinations that have been made by the
adjudication courts or by final determinations of the State Engineer
are final, and can only be modified by reopening the appropriate court
proceedings or the State Engineer's administrative process. The
Proposed Directive would impermissibly undermine the finality of water
rights determinations made under New Mexico law.
New Mexico is already experiencing an attempt by the Forest Service
to limit the amount of water that a municipality may divert under
existing groundwater rights for wells located within National Forest
lands. The Village of Ruidoso, New Mexico is currently in the process
of renewing its special use permit for municipal wells within the
Lincoln National Forest. The Forest Service has proposed additional
pumping restrictions that would dramatically cut back the quantity of
water that the Village could divert and use under its existing
groundwater rights. The Service has proposed these new restrictions in
order to protect aquatic habitat, streamside recreational uses, and
other water uses that are not recognized as part of Lincoln National
Forest's Federal reserved water right. This attempt to impose new
limitations on the quantity of water rights that were previously
adjudicated by the courts and permitted by the State Engineer threatens
the finality of those judgments and decisions, and undermines my
authority to administer water rights within New Mexico.
Finally, I am also particularly concerned about the Proposed
Directive's instruction to Forest Service officials to assert claims
for Federal reserved water rights to groundwater in state water rights
adjudications and administrative proceedings. No Federal court has ever
recognized a Federal reserved right to groundwater. For the Forest
Service to begin asserting such claims now would be especially
controversial and highly disruptive to New Mexico's long-running
efforts to conclude the adjudication of water rights within the state.
I urge the Service to work with my office to establish or obtain under
New Mexico state water law whatever groundwater rights are necessary to
support the Service's activities.
While New Mexico appreciates the interest of the Forest Service in
the protection of groundwater resources, over the past half century New
Mexico has developed an exclusive and comprehensive administrative
process to conjunctively manage our state's surface water and
groundwater. All groundwater within the state is subject to the State
Engineer's jurisdiction and administrative process. New Mexico has been
a leader among the western states in the prevention of increased
depletions to stream flows caused by groundwater withdrawals. My
decisions regarding the administration of groundwater across the state
are guided by the technical expertise of our team of highly respected
hydrologists employed by our agency's Hydrology Bureau.
In conclusion, I urge the Forest Service to withdraw the Propose
Directive and to address through New Mexico state water law the
Service's interest in protecting groundwater resources within New
Mexico. Thank you for the opportunity to present this testimony to the
Committee.
The Chairman. Well, thank you very much. Thank you to all
the witnesses. I guess I will recognize myself first. I am very
appreciative of the Members of the Subcommittee. We had a good
turnout for this hearing. I think that shows the interest, the
intensity of the interest. Also I know that we have rather
intense schedules here. So the fact that we did have a
majority, large majority of Members on both sides at this
hearing is very much appreciated.
Mr. Verhines, I want to start with you. Just a couple of
questions for each of our three witnesses. As a state official,
how do you suggest that the United States Forest Service would
work in better cooperation with the states?
Mr. Verhines. Mr. Chairman, thank you for that question. We
have a lot of interaction with the Forest Service around New
Mexico over a wide variety of water and watershed health
issues, much of which you have talked about this morning. The
wildfires have been devastating in New Mexico over many years.
I think as I suggested in my testimony is that we have great
opportunity to work on issues. Within the state's water law
process, there is ample opportunity for the Forest Service to
interact with other water right holders. We have a process in
place to do that. We have ongoing meetings and dialogue. I
think a Memorandum of Agreement, Memorandum of Understanding
that came up earlier in the testimony today is a great
opportunity for us to get on a similar page.
The Chairman. Very good. Now, you represent a significant
portion of--let me see here. Let me go to Mr. Willardson next.
You state in your testimony that the Directive requires
special use permit holders to meter and report their
groundwater use which may be expensive and could run counter to
some state laws. Can you elaborate on the statement, and is
this even a feasible or realistic requirement?
Mr. Willardson. Metering wells can cost anything from a few
hundred dollars to over a thousand dollars or more, and that is
a challenge and many states do not have authority to require
that under state law, and we would question the Forest
Service's ability to be able to do that as well. I would point
out, too, that domestic wells are exempted in many cases from
state requirements. There are other areas and the groundwater
law varies by state. But in some areas such as Arizona, the
overlying landowner does own the subsurface rights as far as
groundwater and can pump groundwater.
So the variation in the state laws between surface and
groundwaters is something that is important. It needs to be
noted as part of the process and again pointing out that the
Forest Service can apply for rights in addition to whatever
reserve rights it may have for its primary purposes and that
that is an--even that, the assertion of reserve rights is a
process that goes through a state adjudication. And that can be
very contentious. And if the Forest Service has needs, there
are ways to meet those needs. You mentioned already the Montana
Compact that looks at in-stream flows and other issues.
Specific to groundwater resources, I would provide an example
in the State of Utah that involves not the Forest Service but
the Park Service in Zion National Park. And one of the
features, there are weeping walls from the sandstone that are
fed by upstream groundwater. And rather than claim a reserve
right, the Park Service working with the state reached an
agreement where the state will limit future groundwater
development in order to protect the park resources which
obviously are important to all of us.
The Chairman. Thank you. Mr. Shawcroft, you were
particularly adamant on the point that the Forest Service does
not have the legal authority to move forward with this
Directive under the Clean Water Act or any other existing law.
In this context, can you discuss some of the key court
decisions concerning water use over the past decade or so?
Mr. Shawcroft. I think there are certainly the cases that
have been decided by the Supreme Court regarding--waters of the
United States are reflective of what extension there is trying
to be forced as far as Federal jurisdiction over water rights.
What concerns me in particular is some of the things that have
happened recently regarding the Forest Service and their
extension of authority over water rights. A number of years ago
the Grand Mason Christian Association, which has a campground
in Colorado, had a well that had gone dry. They needed a
replacement well. They were forced by the Forest Service as a
condition of their special use permit and renewal to place that
well in the name of the Forest Service. Similar cases occurred
as have been mentioned many times today about the ski resorts.
There in fact have been ski resorts in Colorado that as a
condition of their renewal of those special use permits again,
that they sign that water right over to the Forest Service.
This is definitely a tremendous concern, and it appears to me
that there is definitely a conflict of vision of what these
water rights are.
In the Colorado and certainly in much of the western states
as has been mentioned, a water right is a property right. It is
a personal property right, and in fact, it is tied to the
beneficial use of that water in the State of Colorado. When
that beneficial use of that water for that particular
beneficial use is no longer employed, used, in that manner,
that water right is not then automatically available to be used
for some other public good. In Colorado, as I mentioned in many
western states, it is not for the public to decide how that
water right is used. Tremendous distinction and tremendous
important distinction of the difference between a water right
and the water itself, recognizing in the State of Colorado,
even the Constitution of the State of Colorado says that the
water belongs to the citizens, but the right to put that use to
beneficial use and because of the scarcity of water in the
West, that being put to beneficial use is incredibly important.
That is why we have the prior appropriation doctrine, that
those who put that water to use first have the continued first
right to put that in use.
I am sorry if that doesn't seem to address exactly the
Court decisions, but those Court decisions have come through
our water court system in the State of Colorado and certainly
in many states to the West.
The Chairman. Very good. Thank you. Thank you to all three
of you, gentlemen. I very much appreciate your taking the time
and the difficulty it takes to come to the capital city to
provide testimony. I very much appreciate it. I would ask that
if Members of the Committee have additional questions that they
could forward, if you would consider responding to those, and
that would be very much appreciated. And it would----
Mr. Shawcroft. We would welcome that opportunity, Mr.
Chairman.
The Chairman.--help us as we continue to provide oversight
and look at this. And before we adjourn, I want to thank our
witnesses. I also want to take the opportunity to thank Chief
Tidwell. I am not surprised but very appreciative of the fact
that he stayed for this second panel because I think that is
reflective of the Chief's dedication to try to make the right
decisions and to get information, we hope new information. So
Chief, thank you very much for taking the time to do that. It
is greatly appreciated.
Under the rules of the Committee, the record of today's
hearing will remain open for 10 calendar days to receive
additional material and supplementary written responses from
witnesses to any questions posed by a Member. This Subcommittee
on Conservation, Energy, and Forestry hearing is now adjourned.
[Whereupon, at 12:01 p.m., the Subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
Submitted Questions
Questions Submitted by Hon. Glenn Thompson, a Representative in
Congress from Pennsylvania
Response from Thomas L. Tidwell, Chief, U.S. Forest Service, U.S.
Department of Agriculture
December 17, 2014
Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry, House Committee
on Agriculture,
Washington, D.C.
Dear Chairman Thompson:
Enclosed please find the responses to the questions for the record
submitted by the Subcommittee on Conservation, Energy, and Forestry
following the September 10, 2014, oversight hearing on ``To Review the
Forest Service Proposed Groundwater Directive.''
If you have any additional questions, please contact Jacqueline
Emanuel, Forest Service, Legislative Affairs Specialist at [Redacted]
and [Redacted].
Sincerely,
Douglas W. Crandall,
Director, Legislative Affairs.
attachment
Question 1. Given the Forest Service statement that this proposed
directive would establish new policies and procedures, why didn't the
agency propose a regulation using the Administrative Procedure Act
rather than this directive? What are the implications of the two
approaches?
Answer. See response to Question 2.
Question 2. Given the USFS statement that this proposed directive
would establish new procedures, and that it appears to impose new
requirements on authorization holders, why didn't the agency propose a
regulation using the Administrative Procedure Act rather than this
directive? What are the implications of the two approaches?
Answer. When an agency such as the Forest Service is establishing
its own internal procedures relating to managing public property, the
Administrative Procedures Act (APA) does not require the agency to do
so through formal regulations. (5 U.S.C. 553(b)(B)). When regulations
are not specifically required by the APA or other agency statutes or
regulations, the Forest Service has the discretion to develop either
directives or regulations. Without a controlling requirement, existing
agency regulations (36 CFR 200.4(b)) indicate that the directives
system is the appropriate mechanism to provide standards, criteria, and
guidelines for Forest Service employees to carry out agency activities.
However, the Forest Service has fully complied with the APA for this
directive.
The proposed groundwater directive is intended to update internal
policies and procedures to result in a more consistent, credible,
predictable, and transparent approach to addressing activities and
actions that relate to or have a strong likelihood of significantly
affecting groundwater resources on National Forest System (NFS) lands.
Though the internal policies and procedures have the potential to
affect how third parties interact with the agency and could result in
additional terms or conditions to potential future authorizations
received by third parties, they are primarily structured around
improving the agency's own actions that involve or could significantly
affect groundwater. Thus, the Forest Service concluded that a directive
was the appropriate mechanism.
However, the National Forest Management Act (NFMA) requires that
the Secretary of Agriculture provide adequate notice and an opportunity
for the public to comment on the formulation of standards, criteria,
and guidelines applicable to Forest Service programs (16 U.S.C.
1612(a)). To address NFMA's public notice and comment requirement, the
Forest Service has decided to follow APA requirements for informal
rulemaking, including publishing a proposed directive in the Federal
Register for public comment, addressing the relevant comments, and
publishing a final directive in the Federal Register prior to
implementation.
Question 2a. What new or additional requirements does this proposed
directive impose on entities seeking special use authorizations on NFS
lands?
Answer. The proposed directive does not impose new or additional
requirements on entities applying for special use authorizations (SUAs)
on NFS lands. Currently, the Forest Service uses the criteria set forth
at 36 CFR 251.54 to determine whether or not to accept a proposal for a
specified use of National Forest System land. The proposed directive
does not change or add to those criteria; however, should the Forest
Service choose to do so in the future, the agency would follow
established procedures for amending the directive. However, when
entities propose uses of NFS land that involve or could significantly
affect groundwater, the application of these existing criteria by NFS
units around the country could be more consistent. Though the local
circumstances vary across the NFS units, the approach to evaluating the
requests should be consistent. The proposed directive is intended to
ensure a more consistent approach to processing requests for SUAs that
may involve or significantly affect groundwater by (1) clarifying the
kinds of information NFS staff should gather and review, and (2)
recommending an approach to authorizing specific activities once a SUA
application has been approved. However, to the extent that NFS units
currently apply the existing criteria in an inconsistent manner, the
proposed directives may lead to changes in how the units operate.
Question 2b. Will the new requirements for special use
authorizations increase the time it takes the USFS to renew or issue
new authorizations?
Answer. The majority of currently authorized special uses do not
directly involve or significantly affect groundwater. As explained
above, the proposed groundwater directive does not change the
authorities or responsibilities of Forest Service decision-makers with
respect to special use authorizations. Instead, the proposed directive
seeks to ensure that NFS units apply existing authorities in a more
consistent manner. Existing authorities already require agency decision
makers to evaluate and consider the potential effects of a proposed SUA
on NFS resources and non-NFS resources, including groundwater. However,
NFS units' evaluation and consideration of the potential effects on
groundwater could be more consistent. Since the current approach to
evaluating groundwater effects could be more consistent, it is
difficult to accurately determine whether and how much the proposed
directive would increase the time necessary to issue new or renewed
authorizations. However, it is also possible that adopting a more
consistent approach may actually decrease the time necessary to issue
authorizations in many cases.
Question 2c. Will the USFS develop guidance to assist applicants
with new requirements?
Answer. The Forest Service currently works with proponents of new
or renewed SUAs to understand their proposals and provide guidance
regarding the process. The Forest Service will continue this approach
of working with proponents under the proposed directive. Since the
majority of currently authorized special uses do not directly involve
or significantly affect groundwater, the Forest Service does not
currently anticipate a need to develop special written guidance for
applicants related to this proposed directive.
Question 3. Could the proposed directive impact current practices
regarding the discharge of produced water from coalbed methane
operations?
Answer. The proposed groundwater directive would not change any of
the existing requirements concerning the discharge of produced water
from coalbed methane (CBM) or other oil and gas operations on National
Forest System lands. Produced water from CBM or other oil and gas
operations can be managed in several different ways, including
discharge to the ground surface, to holding ponds, to natural channels,
to the subsurface through injection wells or infiltration galleries,
and evaporation. In general, the discharge of produced water from CBM
or other oil and gas operations to surface water or into the subsurface
is regulated under the Clean Water Act or the Safe Drinking Water Act,
respectively, by states, Tribes, or EPA, depending on the location and
whether or not the jurisdiction has been authorized to implement these
programs. The discharge may also be separately regulated by states
under state statutes.
In addition to any required Clean Water Act or Safe Drinking Water
Act authorizations, when an operation accesses leased federally-owned
minerals, the Bureau of Land Management must also authorize any
discharges to the surface or subsurface on National Forest System
lands, with approval from the Forest Service if additional surface
disturbance is involved. If the produced water discharge from an
operation accessing federally-owned minerals is located on NFS land
outside the lease boundary, the Forest Service may need to separately
authorize the discharge and would need to account for potential effects
on groundwater resources from the discharge.
When the Forest Service has responsibility to review or issue an
authorization for a produced water discharge, the proposed groundwater
directive would require the Forest Service to address the potential
effects on groundwater resources from the discharge and ensure that the
authorization includes a provision for monitoring affected resources.
Additionally, when a new authorization would include discharging water
to underground injection wells larger than 4", the proposed directive
would require the Forest Service to include provisions for metering and
reporting the volume of water discharged.
Question 4. Under the directive, could the Forest Service reduce
access to a water right if a proposed activity might adversely impact
NFS groundwater resources? Does the directive propose changes from
current practice?
Answer. The proposed directive does not affect the ownership of
valid existing water rights. Under existing authorities, the Forest
Service is responsible for managing National Forest System land uses.
Water diversion facilities on NFS land require an authorization for the
use of NFS land. Under section 505 of the Federal Land Policy
Management Act, the Forest Service is required to attach terms and
conditions to land use authorizations involving impoundment, storage,
transportation, or distribution of water to protect NFS lands and
resources, protect lives and property, and a number of other factors.
The proposed groundwater directive does not change those existing
requirements.
Question 5. You state that the USFS plans to develop a framework to
comprehensively evaluate water resources. What is the timeline for
these plans, and what do these plans look like?
Answer. Congress directed the Forest Service to manage National
Forest System lands to secure favorable conditions of water flow
(Organic Administration Act of 1897), for navigable stream protection
(Weeks Act of 1911), and to mitigate floods, conserve surface and
subsurface moisture, and protect watersheds (Bankhead-Jones Act of
1935). In addition, Congress provided subsequent direction to the
agency regarding water, watersheds, and the management of those
resources in a number of statutes, including the Multiple-Use
Sustained-Yield Act of 1960, the National Forest Management Act of
1976, and the Federal Land Policy and Management Act of 1976.
Water on NFS lands is important for many reasons, including
resource stewardship, domestic use, and public recreation. Today, water
from National Forests and Grasslands contributes to the economic and
ecological vitality of rural and urban communities across the nation,
and those lands supply more than 60 million Americans with clean
drinking water. NFS lands alone provide 18 percent of the nation's
available freshwater, and over \1/2\ the freshwater in the West.
Congress recognized the importance of these lands and delegated to the
Forest Service the critical task of helping to ensure that abundant,
clean, freshwater continues to be available from NFS lands into the
future. As parts of the country experience prolonged and severe
drought, the water resources of NFS lands are as critical as ever to
communities, agriculture, and ecosystems.
To address these responsibilities, the Forest Service is working on
a comprehensive framework for water. The goal of the framework will be
to focus land management on NFS lands towards building resilient
ecosystems that protect and sustain water resources on and under those
lands and the livelihoods that depend on them. The framework will
emphasize the importance of shared responsibilities for the
sustainability of these water resources with states, Tribes, and other
Federal agencies. The Forest Service will consult with Congress,
states, Tribes and interested groups as soon as a working draft is
completed.
Question 6. How do you intend to emphasize cooperation and support
with the states who push back?
Answer. The proposed groundwater directive emphasizes the
importance of cooperation with states. States have broad responsibility
for the allocation of water. Many states and Tribes have also been
delegated the authority to implement Clean Water Act and Safe Drinking
Water Act programs. In addition, many states have other statutes that
regulate activities that take place on National Forest System lands,
including mining, oil and gas extraction, and remediation of spills and
other contamination. The Forest Service has and will continue to
respect those authorities. The proposed groundwater directive does not
change that relationship.
The proposed groundwater directive is intended to make the Forest
Service a better partner with the states and tribes in the
characterization, monitoring, and protection of groundwater on NFS
lands. Currently, the Forest Service could be more consistent in its
responses from unit to unit across the country when its own activities
or those proposed by third parties have the potential to substantially
affect groundwater resources on NFS lands. That creates a level of
uncertainty for the states, tribes, and project proponents that can
result in adverse outcomes for all involved. Differences in local unit
interpretations may result in some projects being appealed or litigated
resulting in adverse decisions that delay or otherwise adversely affect
projects important to the local community. Misunderstanding of
requirements may lead to some projects being approved with inadequate
safeguards that result in the contamination or disruption of important
water resources. The proposed groundwater directive is intended to
update internal policies and procedures to result in a more consistent,
credible, predictable, and transparent approach to addressing
activities and actions that relate to or have a strong likelihood of
affecting groundwater resources on National Forest System lands.
The proposed directive explicitly recognizes the role of states in
allocating water and states and tribes in regulating water quality. It
requires Forest Service decision makers to work cooperatively with
those entities. It is the agency intent that nothing in the
implementation of our stewardship responsibilities infringes on state
and tribal allocation and water quality authorities. The agency will
not move forward until we are confident that we have identified and can
address the concerns raised through the public comment and tribal
consultation processes. The agency will take the time necessary to
engage with representatives of states and tribes that have commented on
the proposed groundwater directive to make sure we fully understand the
nature of their concerns.
The following seven questions were received via an e-mail from
Committee Staff for the Subcommittee on Conservation, Energy and
Forestry Chairman Glenn Thompson:
Question 7. This directive appears to establish groundwater
resource protection as a means to either deny certain activities or to
impose certain mitigation measures. Can you provide examples of what is
meant by ``mitigation''?
Answer. Under section 505 of the Federal Land Policy Management
Act, the Forest Service is required to attach terms and conditions to
land use authorizations involving impoundment, storage, transportation,
or distribution of water to protect NFS lands and resources, protect
lives and property, and a number of other factors. The proposed
groundwater directive does not change those existing requirements.
However, the proposed directive clarifies that appropriate terms and
conditions need to be included in authorizations that involve
groundwater. Those terms and conditions could include mitigation
measures that minimize the potential impacts from the proposal as
submitted. Viable potential mitigation measures will depend on the
circumstances of each activity, but, for example, could include design
changes to include a liner on a proposed storage area to limit the
potential of contamination entering the groundwater, adjustment of the
location of a proposed well to minimize effects on a wetland, or
installation of monitoring equipment to track the impacts from a
proposed septic system.
Question 8. What types of new environmental analyses might be
required for timber permitting and basic forest management activities?
Answer. Under the National Environmental Policy Act, the Forest
Service has the responsibility to assess and disclose the impacts from
all of its activities, including timber harvest and other forest
management activities, on the quality of the human environment, which
includes water resources. The proposed groundwater directive does not
change that responsibility. While timber harvesting and other basic
forest management activities can have an effect on water resources, the
Forest Service has long taken water resources into account in the
design of its harvest and other forest management activities and in the
required analyses of their potential effects. Therefore, the agency
does not anticipate any substantial changes in effects analyses for
most timber harvesting and basic forest management activities in
response to the proposed directive.
Question 9. What types of new environmental analyses might be
required for water wells and pipelines?
Answer. Under the National Environmental Policy Act, the Forest
Service has the responsibility to assess and disclose the impacts from
all of its activities and those being authorized on National Forest
System lands, including for water wells and pipelines, on the quality
of the human environment. The proposed groundwater directive does not
change that responsibility or require additional analyses.
Question 10. Does the Forest Service have the technical capacity to
evaluate these proposals in a timely manner? Specifically in regard to
the report that there are only four groundwater scientists employed at
the agency? Does that mean that all of the special use authorization
applications (or reauthorization applications) need to go through those
four personnel to be evaluated? If the Forest Service needs to use
contractors, what would be some of the pros and cons of using them?
Answer. In most cases, trained FS staff on the individual units
will have the capacity to evaluate the effects of potential new or
renewed authorizations on groundwater resources, using existing and
planned technical guidance. In a small subset of situations, the
activity or action involved or the physical setting will be
sufficiently complex that the local specialist will need the assistance
of more highly trained groundwater personnel. The Forest Service
currently has five positions dedicated to providing that support across
the country. In addition, the Forest Service has the ability to
contract for additional expertise when needed to meet particular needs.
In those instances, the existing staff personnel can support the local
units by assisting with aspects of the contract development and
oversight and review of work products. This is a model that the Forest
Service has used in other circumstances where highly specialized
technical expertise is needed, such as in the case of fossil resources
(paleontology) and cave resources (speleology).
Of course, there can be challenges in using contractors to address
aspects of the environmental assessment process, but there can also be
substantial benefits if implemented appropriately. The Forest Service
has utilized contractors to provide groundwater expertise in the past
when the situation warranted. The proposed groundwater directive does
not change that option. However, the proposed directive may help
clarify when additional expertise is needed and the types of analyses
that may be needed to be completed during the planning and
environmental analysis phases, and help avoid the delays that can
result from litigation determining that the analyses completed were
inadequate.
Question 11. Under the proposed directive, the Forest Service plans
to consider groundwater impacts as part of the process for leasing
minerals. How might this impact oil and gas leases?
Answer. The Bureau of Land Management (BLM) issues oil and gas
leases for federally-owned minerals on National Forest System lands
with the concurrence of the Forest Service. The Forest Service conducts
its own leasing analysis before concurring with a BLM leasing decision.
Under NEPA, the Forest Service is required to evaluate and disclose the
potential effects of reasonable development scenarios on all resources,
including groundwater, through the leasing analysis. The proposed
groundwater directive does not change that responsibility. The proposed
directive also cannot and does not expand the authority of the agency
beyond its existing authorities. With a clearer approach to addressing
groundwater resources in the context of potential leasing, the Forest
Service can be a better partner to BLM and the states and be better
positioned to work with proponents and other interested parties to
provide for development of the nation's critical energy resources while
protecting water resources.
Question 12. Under the directive, could the Forest Service reduce
access to a water right if a proposed activity might adversely impact
NFS groundwater resources? Does the directive propose changes from
current practice?
Answer. The proposed directive does not affect the ownership of
valid existing water rights. The proposed groundwater directive does
not change existing Forest Service authorities concerning access to
state issued water rights on National Forest System land. Access to a
state water right on NFS land requires an authorization for the use of
the land. Under section 505 of the Federal Land Policy Management Act,
the Forest Service is required to attach terms and conditions to land
use authorizations involving impoundment, storage, transportation, or
distribution of water to protect NFS lands and resources, protect lives
and property, and a number of other factors. The proposed groundwater
directive does not change those existing requirements.
Question 13. On the same day the groundwater directive was
proposed, the Forest Service proposed directives to establish a
national system of best management practices (BMPs) and monitoring
protocols for water quality protection, and to require their use on NFS
lands to meet Clean Water Act mandates. How are the two initiatives
related? Which Clean Water Act mandates would be addressed under the
proposed BMP directives?
Answer. Both the proposed directive for Groundwater Resource
Management (FSM 2560) and the proposed directives for National Best
Management Practices (BMPs) for Water Quality Protection on National
Forest System lands were published for public comment on the same day.
The two directives were developed independently and are not
interdependent. However, both proposed directives are intended to
update internal Forest Service policies and procedures to provide for
more consistent, credible, predictable, and transparent approaches to
addressing activities and actions that could affect water resources on
NFS lands.
The intent of the current and proposed BMP directives is to carry
out one of the Clean Water Act (CWA)'s primary purposes--to maintain
the chemical, physical, and biological integrity of the nation's
waters. The Forest Service has long had a requirement to implement BMPs
to protect water quality in the Forest Service Directives System
(Forest Service Manual 2530). The Forest Service has had strong
regional and local efforts to implement BMPs for ground-disturbing
activities for many years. However, because of the lack of a clear
national framework for BMPs, the agency found it difficult to
consistently demonstrate effectiveness of BMPs in protecting water
quality. This has resulted in some adverse court decisions that forced
substantial additional analyses, increased costs, and delayed projects.
The 2012 land management planning rule required the agency to put a
national system of BMPs in place (36 CFR 219.8(a)(4)), and the proposed
BMP directives are intended to position the agency to address that
requirement.
Response from Anthony G. Willardson, Executive Director, Western States
Water Council
Question 1. What percentage of persons in the U.S. currently holds
a special use permit?
Question 1a. What might that percentage look like under the
directive?
Question 1b. How difficult would a special use permit be to obtain
under the directive?
Answer 1-1b. The Council has no information on the number of
persons that hold special use permits, but could provide some data on
wells, including location and capacity from water rights information.
The additional requirements that the directive would impose could
substantially increase the cost of obtaining new permits, maintaining
existing permits, or seeking new sources of water off National Forest
Lands (NFS) lands. All these actions would reduce the number of
permits.
For example, upon the expiration of current special use permits,
the directive explicitly requires USFS land managers to consider
requiring the removal of facilities, including wells (but possibly
surface water diversions as well). This obviously would reduce the
number of persons with special use permits, which would be terminated.
Removing wells would impose very significant costs on non-Federal
parties.
For example, the Arizona Department of Water Resources, Chief
Counsel, has stated:
``In Arizona's comments on the Proposed Directive, we
disputed the statement in the Federal Register notice that the
Proposed Directive was not subject to review by the Office of
Management and Budget under E.O. 12866 because we believe the
Proposed Directive will adversely affect state and local
governments and potentially will have an annual effect of $100
million or more . . . .''
``There are three local governments with a combined
population of almost 78,000 people that currently use wells on
Forest Service lands. If the special use authorizations
associated with wells and pipelines that provide water to these
communities are not renewed in the future due to requirements
of the Proposed Directive, there will most certainly be adverse
impacts to these local governments and those impacts should be
considered.''
``In analyzing the regulatory impact of the Proposed
Directive, it should be assumed that some existing special use
authorizations will not be renewed due to negative impacts to
groundwater dependent ecosystems or groundwater resources
resulting in the need to drill new wells or construct new
pipelines off of Forest Service lands. Based on that assumption
and a conservative estimate for new high-capacity well
construction of $200,000, only 500 wells nationwide would need
to be replaced to have an annual effect of $100 million. In
Arizona alone, the Department identified 700-800 wells
associated with Community Water systems potentially on Forest
Service lands plus an unknown number of pipelines.''
Question 2. What additional work could USFS and states do to better
communicate their intentions and activity so the public may better
understand the real implications of the proposed directive?
Answer. An inventory of wells on NFS lands would be a first step
towards evaluating the extent of the implications of the proposed
directive. The WSWC has done some very preliminary work towards
determining the number of wells on National Forest Service lands.
States maintain data on the location of wells that can be cross
referenced with NFS boundaries. A more extensive analysis could
estimate the capacity of those wells (given the 35 gallon per minute
threshold in the directive), the population served and the distance
from the external boundaries of NFS lands. All this information would
help inform the discussion of the implications of the directive.
Moreover, any survey USFS may have available of resources of
concern, such as groundwater dependent ecosystems, would be useful. The
rebuttable presumption of a connection between groundwater and surface
waters and groundwater dependent ecosystems, could lead to expensive
technical hydrogeologic analyses for any well owner with a special use
permit to be renewed. Further, any assertion of a Federal reserved
right to groundwater to protect such resources would be vigorously
opposed by many western states. A more collaborative approach would be
for the USFS to enter into an MOU with the individual states (see
Wyoming MOU and Montana Compact) to recognize legitimate USFS interest
and negotiate an agreement to protect waters.
Question 3. How do state authorities currently evaluate groundwater
resources and impacts? In your opinion, is the states' method of
evaluation efficient and effective?
Answer. Many western states have modeled groundwater availability
and evaluate the impact of existing and proposed uses. Senior water
rights are protected from injury from subsequent ``junior''
appropriations. States require public notice of all water right
applications, and anyone with a water right that may be impacted by the
proposed use may protest, requiring a public hearing. Moreover most
states consider the public interest as part of the evaluation of
applications. USFS may represent its interests in this process, and
other state forums, should it consider NFS resources threatened. In
consideration of such concerns, states usually have the discretion to
deny, limit or condition water rights to avoid or mitigate negative
impacts. Most states have authority to require metering and reporting
of groundwater use, impose conservation measures, including well
spacing, limit groundwater withdrawal measured in gallons per minute or
acre-feet per year, and otherwise manage and control groundwater uses.
The USFS has no such authority. State notice, hearing and public
interest requirements, undertaken with water right applications,
provide a cost effective evaluation of proposed uses and their impacts.
Further, state groundwater availability modeling and general water
resources planning authorities and activities evaluate groundwater
resources and trends.
attachment
October 2, 2014
Elizabeth Berger--WFWARP,
Groundwater Directive Comments,
USDA Forest Service,
Washington, D.C.
Re: FS-2014-0001--Proposed Directive on Groundwater Resource
Management, Forest Service Manual 2560
Dear Ms. Berger:
The U.S. Forest Service (hereafter USFS or Service) has issued a
proposed directive on groundwater resource management (79 FR 25815, May
6, 2014). This draft directive, published for public comment, is
proposed for addition to the USFS Manual 2560. Because this directive
impacts state authority to manage water, the Western Governors'
Association (WGA) submits the following comments.
The USFS states that the directive is needed in order to
``establish a consistent approach for addressing both surface and
groundwater issues that appropriately protects water resources,
recognizes existing water uses, and responds to the growing societal
need for high-quality water supplies'' (79 FR 25815).
Statement of Interest
The WGA represents the Governors of 19 western states and three
U.S.-flag islands. The association is an instrument of the Governors
for bipartisan policy development, information exchange and collective
action on issues of critical importance to the western United States.
Clean water is essential to strong economies and quality of life,
as the Western Governors recognize in their Policy Resolution 2014-04,
Water Quality in the West. (http://www.westgov.org/policies/301-water/
596-water-quality-in-the-west-resolution-wga) Because of their unique
understanding of these needs, states are in the best position to manage
the water within their borders.
States are the primary authority for allocating, administering,
protecting, and developing water resources, and they are primarily
responsible for water supply planning within their boundaries. States
have the ultimate say in the management of their water resources and
are best suited to speak to the unique nature of western water law and
hydrology.
Western Governors' Analysis and Recommendations
The Western Governors sent a letter to U.S. Secretary of
Agriculture Tom Vilsack on July 2 with several questions regarding the
proposed directive.\1\ As stated in that letter, our initial review of
the proposed directive leads us to believe that this measure could have
significant implications for our states and our groundwater resources.
---------------------------------------------------------------------------
\1\ Incorporated by reference: Western Governors' letter to Sec.
Tom Vilsack, dated July 2, 2014. http://www.westgov.org/component/
docman/doc_download/1821-usfs-groundwater?Itemid=.
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WGA thanks Secretary Vilsack for his response to this letter, dated
August 29. We are also sincerely grateful for the additional extension
of the comment period so that the Western Governors are able to provide
these detailed comments on the proposed directive. We understand that
the Forest Service manages a significant portion of land in western
states, on behalf of the United States, and that what occurs on this
land can, in some instances, have a significant impact on water
resources.
Recognition of the States' Exclusive Authority over Groundwater
Management
Well over a century ago, Congress recognized states as the sole
authority over groundwater in the Desert Land Act of 1877. Moreover,
the U.S. Supreme Court held in California Oregon Power Co. v. Beaver
Portland Cement Co., 295 U.S. 142 (1935), that states have exclusive
authority over groundwater, finding that following the Desert Land Act
of 1877 ``. . . all non-navigable waters then a part of the public
domain became publici juris, subject to the plenary control of the
designated
states . . . .''
Congress' clear intent that the states should have authority over
groundwater, as affirmed by the U.S. Supreme Court, is distorted by the
proposed directive in multiple ways. The proposed directive could be
construed to assert USFS ownership of state groundwater through use of
the phrase ``NFS groundwater resources'' throughout the document. It
goes on to identify states merely as ``potentially affected parties''
and only recognizes states as ``having responsibilities'' for water
resources within their boundaries. This vague and insufficient
acknowledgement of the states' authority over groundwater is also
evident in Section 2560.02-1, which states that an objective of the
proposed directive is to ``manage groundwater underlying NFS lands
cooperatively with states.'' This language misleadingly suggests that
the USFS has equal authority with the states over groundwater
management, which it does not.
b Potential for Special Use Authorizations to Supersede State
Authority
States hold the authority to issue water rights, a fact
recognized by the USFS in the proposed directive. However, the
Western Governors are concerned that the proposed directive
will lead the USFS to make decisions and place stipulations on
proposed actions on NFS lands based on the quantity of water
withdrawn with a state-issued water right; that is, a quantity
that the state has authorized for diversion and depletion.
Specific provisions include (emphasis added in all instances):
Section 2560.03-4-a: Consider the effects of proposed
actions on groundwater quantity, quality, and timing prior
to approving a proposed use or implementing a Forest
Service activity;
Section 2561-2: Prior to implementation or approval,
assess the potential for proposed Forest Service projects,
approvals, and authorizations to affect the groundwater
resources of NFS lands. If there is a high probability for
substantial impact to NFS groundwater resources, including
its quality, quantity, and timing, evaluate those potential
impacts in a manner appropriate to the scope and scale of
the proposal and consistent with this chapter; and
Section 2562.1-3: When issuing or reissuing an
authorization or approving modification of an authorized
use, require implementation of water conservation
strategies to limit total water withdrawals from NFS lands
(FSM 2541.21h) deemed appropriate by the authorized
officer, depending on the type of authorized use; existing
administrative and other authorized uses in the area; the
physical characteristics of the setting; and other relevant
factors. If the holder of the authorization consents, amend
the authorization to include this requirement.
These portions of the proposed directive assume that the Service
has some type of authority over the management of groundwater,
which it does not. The proposed directive should clearly state
that state-issued water rights for allocations of water must be
recognized. The USFS does not have the authority to limit the
amount of withdrawals authorized by a state. Limiting the
quantity of groundwater withdrawals through special use
authorizations would, in effect, amount to superseding states'
authority to issue water rights.
b Connectivity of Surface Water and Groundwater
Another troubling concern in the proposed directive is the
Service's rebuttable presumption that surface water and
groundwater are hydraulically connected, regardless of whether
state law treats these resources separately (Sections 2560.03-2
and 2561-1). The directive should defer to the laws of
individual states in recognition of their authority over water
management. Moreover, if groundwater and surface water are
assumed to be hydraulically connected, there is the potential
for misinterpretation of the directive to mean the Service's
newly asserted management of groundwater resources should
extend to surface water. To be clear, the states have the
authority to manage both groundwater and surface water, and the
USFS should fully recognize this in its proposed directive.
Legal Basis for the Proposed Directive
Aside from the question of state authority, the proposed directive
raises other legal questions.
The proposed directive states that the assertion of reserved rights
to surface water and groundwater should be consistent with the purposes
of the Organic Administration Act, the Wild and Scenic Rivers Act, and
the Wilderness Act. In United States v. New Mexico, 438 U.S. 696
(1978), the U.S. Supreme Court denied USFS claims to reserved rights
for fish, wildlife and recreation uses. Rather, the Court found that
the Organic Act limits reserved rights to those necessary to meet the
primary purposes of the Act--the conservation of favorable water flows
and the production of timber--and that other secondary needs must be
met by obtaining appropriation rights from the state.
Given the Supreme Court's ruling, specific language in Section 2567
(Item 3) of the proposed directive is troubling and confusing. This
section states that, when filing groundwater use claims during state
water rights adjudications and administrative proceedings, Forest
Service employees should ``[a]pply Federal reserved water rights (the
Reservation or Winters doctrine) to groundwater (emphasis added) as
well as surface water to meet Federal purposes under the Organic
Administration Act, the Wild and Scenic Rivers Act, and the Wilderness
Act.''
The prospect of Federal agencies claiming reserved rights to
surface water is already a contentious affair, but suggesting the
agency can assert such claims to groundwater is even more so. Reserved
water rights have always been limited to surface water, and while there
has been a long-standing debate as to whether they apply to
groundwater, no Federal court has extended the doctrine to groundwater.
Nevertheless, states and Federal agencies have worked together to
craft mutually acceptable and innovative solutions to address Federal
water needs, including Federal needs for groundwater. These types of
negotiated outcomes accommodate Federal interests and needs and should
be considered, recognizing the absence of any USFS reserved water
rights authority for secondary purposes. The directive should require
the USFS to work with state water right administrative agencies to
address Federal interests and needs without asserting any reserved
right claims to groundwater.
Questionable Need for Proposed Directive
In the Federal Register notice for the proposed directive, the
Service argues that there is ``a need to establish a consistent
approach for addressing both surface and groundwater issues'' (79 FR
25815). In separate communications, Service officials have declared a
need to bring all of the USFS regions in line with varying groundwater
directives into a single consistent framework. However, just one
region--Region 3 (encompassing Arizona and New Mexico)--addresses
groundwater in its existing directives.
Questionable Ability and Need to Implement Proposed Directive
The proposed directive requires USFS employees to consider
groundwater in a variety of new situations. Yet, as acknowledged in a
``Frequently Asked Questions'' document provided by the Service on the
proposed directive, USFS has just four dedicated groundwater
specialists within its current staff to implement the proposed
directive (Key and Common Questions and Answers: Proposed Groundwater
Directive FSM 2560, (http://www.fs.fed.us/geology/
Proposed%20Groundwater%20
Policy_QA_6_30_14.pdf) Question 41). This document also contemplates
hiring a contractor with groundwater expertise, ``if circumstances
require it.'' Given the pressing needs of (and limited budget for) the
Service's existing responsibilities, the Western Governors encourage
the agency to direct its resources to existing programs.
Additionally, the proposed directive creates regulatory duplication
and overlap. As the South Dakota Department of Environment and Natural
Resources stated in its July 31 submission on the proposed directive:
The Forest Service is now directed to do research and
groundwater evaluations and assessments through this proposal.
This is commonly what the US Geological Survey and
Environmental Protection Agency do. It is not only a redundancy
of responsibilities, it is doubling expenditures of these
activities in an already overextended and unbalanced Federal
budget.
Adjacent Lands
The proposed directive also requires USFS officials to evaluate
water right applications ``on adjacent lands that could adversely
affect NFS groundwater resources'' (Sections 2560.03-6-f and 2560.04h-
5). Such actions outside the boundaries of NFS lands exceed the limits
of the agency's authority. It is inappropriate for the USFS to extend
its administrative reach to lands it does not manage.
Land Exchanges
The USFS creates a new requirement in the proposed directive for
``an appropriate assessment of potential groundwater availability . . .
as part of the appraisal process when water availability may be of
significance on NFS lands proposed for a land exchange'' (Section
2560.03-11). As the Western Governors have stated in a letter
supporting legislation to facilitate state-Federal land exchanges,
The burdensomeness and complexity of Federal land exchange
processes often prevent the completion of sensible and mutually
beneficial exchanges, even on a government-to-government basis.
Consequently, state lands remain locked in Federal conservation
areas, and states are deprived the economic benefit of land
grants that were made to fund education and other purposes.\2\
---------------------------------------------------------------------------
\2\ Incorporated by reference: Western Governors' letter to Rep.
Rob Bishop, dated June 19, 2014, in support of the Advancing
Conservation Education Act of 2014. http://www.westgov.org/component/
docman/doc_download/1817-bishop-land-exchange-legislation?Itemid=.
Adding a new requirement to an already arduous process will create
further challenges for the process of approving economically beneficial
land exchanges. Furthermore, the proposed directive does not specify
what the threshold of ``significance'' is that would warrant a
groundwater availability assessment, nor does it speak to which
specific factors will be evaluated or how they may be weighted in the
consideration of a transaction. The Service should clarify these points
before adding a new barrier to the land exchange process.
Lack of State Consultation
The USFS did not reach out to WGA or any state agencies of which
WGA staff is aware in advance of developing and publishing the proposed
directive. When asked about state consultation on a stakeholder
conference call on May 20, 2014, the USFS indicated that they had
consulted with states when the Proposed Directive was first considered
several years ago, a time when many of the current Western Governors
had not yet been elected and many different employees were working
within the Service and the state agencies.
The USFS asserts that the proposed directive does not trigger the
state consultation requirements under E.O. 13132 on federalism.
However, the USFS has initiated tribal consultation pursuant to E.O.
13175, Consultation and Coordination with Indian Tribal Governments.
States, as the exclusive authority for groundwater management, deserve
at least the same level of consultation as tribes.
Waiting until the public comment period to solicit state input, as
the USFS has done in this instance and others, does not allow for
meaningful consideration of the states' perspectives. States should
have been consulted much earlier in the development of this directive,
especially given the number of years the agency has spent preparing
this proposal.
Context: Other Water-Related Proposed Directives from USFS
The USFS has published two other proposed directives for public
comment: one regarding best management practices for water quality and
one on ski area water rights. An assumption underlying all three
proposed directives is that the Service has an obligation to extend
regulation of water resources beyond current state and Federal efforts.
As the Service has written in a ``Frequently Asked Questions'' document
for the proposed directive on groundwater,\3\
---------------------------------------------------------------------------
\3\ ``Key and Common Questions and Answers--Proposed Groundwater
Directive FSM 2560''--http://www.fs.fed.us/geology/
Proposed%20Groundwater%20Policy_QA_6_30_14.pdf.
There is a clear need for the Forest Service, in continued
cooperation with the states and tribes, to take an active role
in comprehensively managing the human activities that
potentially affect water resources on National Forest System
---------------------------------------------------------------------------
lands.
WGA is sensitive to the potential for this ``comprehensive
management'' to venture into the realm of new regulatory authority for
the Forest Service.
WGA urges the Forest Service to consult with states in a meaningful
way prior to proposing future directives or rules. This proposed
directive, like many other proposals from the USFS and other Federal
agencies, was developed without any state consultation of which WGA is
aware. True consultation with the states will help the Service identify
and avoid conflicts regarding proposed directives and rules. We invite
the USFS to work through WGA, the Western States Water Council, and
individual states to facilitate dialogue on ways to improve this (and
any future) proposed directive.
WGA appreciates the opportunity to submit comments on this proposed
directive.
Respectfully submitted,
Hon. Brian Sandoval, Hon. John Kitzhaber, M.D.,
Governor, State of Nevada, Governor, State of Oregon,
WGA Chairman; WGA Vice Chairman.
Response from Don Shawcroft, President, Colorado Farm Bureau
Question 1. Your organization represents many different farmers,
ranchers and producers around the state; do you expect this proposed
directive to cause any trouble for them as they continue their
practices?
Answer. The proposed directive appears to be an effort by the USDA
Forest Service to exceed its management authority over waters of the
states through administrative actions, thus giving the Forest Service
greater control not just over land in my own State of Colorado but over
the natural resources of the West generally. It is important to note
that the majority of all western water currently allocated, adjudicated
and for farmers, ranchers, and other holders of water rights can be and
often is used as property collateral to secure loans with a lending
institution. The stability of prior appropriation doctrine is part of
the structure and underpinning of western state and local economies.
Any claim or clouding of the state's authority to adjudicate or
questioning of appropriate beneficial use as defined by the states
would create tremendous uncertainty and diminishment of property
values. Congress has not given the Forest Service the right to
intervene in this important local process. The negative impacts on
grazing, timber, recreation and other permitted beneficial uses of
national forest system lands and of adjacent and nearby private, non-
Federal public and tribal lands can best be avoided by the withdrawal
of these directives.
Question 2.You mention that the Organic Administration Act of 1897
vests the USFS with the authority to manage surface waters under
certain circumstances. What are those certain circumstances?
Answer. The Directive sites one of the Organic Act's stated
purposes as ``. . . securing favorable conditions of water flows.'' The
Forest Service misconstrues this provision by assuming surface and
groundwater resources are a unit unless proven otherwise, and
therefore, that management of both resources is necessary to provide
favorable conditions of water flows on NFS lands. From this flawed
interpretation, the Forest Service then concludes that the Organic Act,
through its stated purposes, authorizes the agency to manage
groundwater along with surface water in order to secure favorable
conditions of water flows.
The Organic Act simply authorizes the Forest Service to manage the
land, vegetation and surface uses. The directive fails to discuss or
acknowledge state authority to manage water resources or limits to
Forest Service water rights until adjudicated by each state. The Act
does not provide authority to manage or dispose of the groundwater or
surface waters of the states based on the Directive's declared
``connectivity'' clause.
Question 3. You also mention the statute provides no authority for
management of groundwater. What certain circumstances, if any, should
be monitored by the USFS?
Answer. The Organic Act simply authorizes surface management of the
land, its vegetation, and surface uses--not the subsurface which
includes groundwater resources--in a way to provide favorable
conditions of water flows. The United States Supreme Court has gone to
great lengths to bring clarity to the scope of the Organic Act's
determination that federal authority extends only to prudent management
for surface water resources. In United States v. New Mexico, the Court
defined prudent management to: (1) ``secure favorable water flows for
private and public uses under state law,'' and (2) ``furnish a
continuous supply of timber for the people.'' The agency authority is
narrowed to proper management of the surface to achieve the specific
purpose of the Organic Act--not the direct management of the
groundwater and agency declared interconnected surface waters. In no
circumstances should the Forest Service attempt to regulate and manage
subsurface groundwater resources.
Question 4. You state that the USFS's attempt to use Clean Water
Act terminology such as any ``hydrological connection'' to establish
authority over water rights is unlawful. How else has the USFS
attempted to establish authority over groundwater water rights?
Answer. In terms of the agency's efforts to use the CWA to justify
authority over groundwater, Farm Bureau questions why the Forest
Service points to the Clean Water Act as a source of legal authority
and direction for the Directive. The Directive merely states in two
general sentences that the Clean Water Act is a source of legal
authority for the Directive. There is no explanation of how the Clean
Water Act applies to this Directive or how sections 303, 401, 402 or
404 of the Clean Water Act (cited in the Directive) to provide any
legal authority to the Forest Service. The Forest Service does not
administer any part of the Clean Water Act nor does that statute grant
the Forest Service any authorities; administration of the law rests
with the Environmental Protection Agency, the U.S. Army Corps of
Engineers and, most importantly, the states. As is most pertinent here,
the Clean Water Act expressly states that nothing in that law shall
``be construed as impairing or in any manner affecting any right or
jurisdiction of the states with respect to the waters (including
boundary waters) of such States.'' 33 U.S.C. 1370. The Forest Service
has no authority to infringe on state law regarding groundwater, and
clearly the Clean Water Act does not provide such authority. It is
absolutely clear that the Clean Water Act does not cover groundwater.
The reference to the Clean Water Act leaves only questions about
the Forest Service view of its authority. Is the Forest Service
claiming federal jurisdiction over groundwater based on the Clean Water
Act (which explicitly does not grant federal jurisdiction over
groundwater)? Does the ``interconnectivity'' clause somehow grant the
Forest Service legal authority over groundwater under the Clean Water
Act? Is the Forest Service claiming that it needs authority over
groundwater to comply with its obligations under the Clean Water Act?
If so, the Forest Service must explain that it has obligations and what
they are, not just refer to the statute. At a minimum, Federal agencies
must provide a modicum of justification for any claim of legal
authority, particularly here when the Forest Service has no authority
whatsoever to implement the Clean Water Act. The Forest Service's
statement of legal authority is so wholly inadequate that it provides
Farm Bureau with little information with which to provide construct
meaningful comments and therefore it cannot be used as a basis for the
Directive.
As included in the written testimony, the Forest Service has been
attempting to extort water rights from Federal permittees for some
time. In an August 15, 2008, Intermountain Region briefing paper
addressing applications, permits or certificates filed by the United
States for stock water, the agency claimed, ``It is the policy of the
Intermountain Region that livestock water rights used on National
Forest grazing allotments should be held in the name of the United
States to provide continued support for public land livestock grazing
programs.'' Further, another Intermountain Region guidance document
dated August 29, 2008, states, ``The United States may claim water
rights for livestock use based on historic use of the water. Until a
court issues a decree accepting these claims, it is not known whether
or not these claims will be recognized as water rights.'' During a
Subcommittee on National Parks, Forests and Public Lands hearing on
March 12, 2012, the Forest Service testified, ``The Forest Service
believes water sources used to water permitted livestock on Federal
land are integral to the land where the livestock grazing occurs;
therefore, the United States should hold the water rights for current
and future grazing.''
Specific examples of recent conflicts with the Forest Service of
water rights include the following:
Tooele County Utah Grazing Association:
In the spring of 2012, livestock grazing permittees meeting with
the local forest managers were confronted by forest land managers
seeking a ``sub-basin claim'' from the state of Utah. Where a sub-basin
claim is granted by the Utah Division of Water Rights, changes in use
and diversion can be done without state approval. The permittees were
asked to sign a ``change of use'' application which would have allowed
the agency greater ease in determining what the use would be, including
changing use from livestock water to wildlife, recreation or elsewhere.
When permittees objected, they were told that not complying with
the Forest Service request could adversely affect their ``turn out''--
the release of their sheep and cattle onto their forest allotments.
Tombstone, Arizona:
In this scenario, the Forest Service overfiled on the city's 25
developed springs and wells located in the Huachuca Mountains. For more
than 130 years, Tombstone piped its privately held water rights some 30
miles for use. Even after the Huachuca's were designated a Federal
wilderness area in 1984, Tombstone was allowed to maintain its road and
critical access to its springs providing Tombstone with water for
culinary needs and maybe more important in this hot, arid place--fire
protection and public safety.
Tombstone won the water ownership challenge, but found the agency
combative and stonewalling following torrential rains in 2011. After
notifying the Forest Service of their need to repair damage as in the
past, they were denied access. They sought relief based on the state's
public health, safety and welfare obligations. When the city received
authorization to do badly needed repairs they were forbidden from using
the previously approved mechanized equipment. As city employees showed
up with hand-tools and wheelbarrows--armed forest agents would not
allow the ``mechanized'' wheelbarrows onto the forest administered
lands. As of April 24, the Forest Service has allowed Tombstone access
to only three of their 25 springs.
Otero County, New Mexico:
In drought-stricken Otero County New Mexico, the Forest Service is
blocking rancher's cattle from accessing long held water and recognized
as private property rights under state law. The agency told the
ranchers that they merely replaced old barbed wire fences with new,
much stronger metal based fences to establish enclosures to protect a
``vital wetland habitat.''
Otero County Commissioners issued a ``cease and desist'' order in
an attempt to allow the cattle access to the rancher's water and to
protect the state's sovereign water rights. The elected county
commissioners charged the Forest agents with an illegal action that
could ultimately lead to animal cruelty. The county is threatening the
arrest of Federal personnel who are keeping the ranchers from their
privately held water rights.
Question 5. You mention several times the idea of just compensation
for taking private property by adverse possession. Do you or your
members have an idea of what just compensation might look like should
the USFS proposed directive occur?
Answer. From a historic standpoint, when water transitions from
agriculture to M&I (municipal and industrial) use, the water rights
with the earliest priority dates have the greatest value. For example a
farmer whose family established an 1860 priority date on a local water
source would have greater market value than a 1920 water right on the
same water source. During times of drought or shortage, the 1860 water
right will be delivered while the 1920 right could be excluded from
delivery. Is more arid portions of the West, the early priority dates
have the same impact but the water values are dramatically higher.
In most western states--Arizona, Colorado, Idaho, Montana, Nevada,
New Mexico, Utah and Wyoming--all surface water rights are based on the
prior appropriation doctrine that allows rights holders to withdraw a
certain amount of water from a natural water course for beneficial
purposes on land remote from the point of diversion.
Farm Bureau supports valuation and transitioning of water rights in
a marketplace by willing seller and willing buyer. In terms of just
compensation, the U.S. Constitution requires compensation for
government takings, and in many western states, states require
compensation for either a taking or a diminishment of value. Valuation
of water rights varies based on a number of factors including climate
and water availability--water availability in the Pacific Northwest is
very different from arid states in the Southwest.
Farm Bureau opposes Federal jurisdictional control being imposed on
farmers without just compensation for loss of productive development or
sale potential, as provided by the Constitution. Compensation to
landowners for reduction in property values should be itemized and
taken from the budget of the respective federal agency.
Farm Bureau supports the following:
(1) The present system of appropriation of water rights through
state law and we oppose any Federal domination or pre-emption
of state water law or resource distribution formulas;
(2) Water rights as property rights that cannot be taken without
compensation and due process of law;
(3) Government providing due process and compensation to the exact
degree that an owner's right to use and the value of the
property has been diminished by government action;
(4) All levels of government abiding by the Fifth Amendment to the
Constitution: ``No person shall be deprived of life, liberty or
property without due process of law; nor shall private property
be taken for public use without just compensation;''
(5) The basis for just compensation being fair market value of the
property or the economic loss to the owner or any adjoining
landowner whose property is devalued; and
(6) Compensation for partial takings of the property being based on
the reduction in the value of the total property.
Response from Scott A. Verhines, P.E., New Mexico State Engineer *
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* There was no response from the witness by the time this hearing
went to press.
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Question 1. You represent a significant portion of the western
states in the United States. Have your members reached out to you and
expressed concern over this directive? Has there been an assessment on
how many states will be impacted on such directive
Question 2. You mention that the term ``NFS groundwater resources''
should be specifically defined to include only those groundwater
resources in which the USFS has obtained a legal interest in. Is it
possible that the USFS believes they have a legal interest in all
groundwater resources? Is that belief reasonable? Why or why not?
Question 3. You state in your written testimony that New Mexico is
already experiencing an attempt by the USFS to limit the amount of
water that a municipality may divert under existing groundwater rights
for wells located within National Forest lands. What types of new
environmental analysis might be required for other water wells and even
pipelines?
Question 4. Mr. Verhines, can you discuss how this proposed
directive will affect groundwater law in New Mexico? How does the
Forest Service's assumption about the interconnectedness of surface
water and groundwater affect how both are regulated in your state?