Forest Service at it again: New groundwater regs?

Jun 27, 2014

“Even the EPA hasn’t openly tried to make the kind of water grab the U.S. Forest Service is trying to make now,” said Public Lands Council’s (PLC) Dustin Van Liew in an interview with WLJ. Van Liew is the Executive Director of PLC, a Washington, DC-based organization that represents the ranching families who depend on grazing and water rights on U.S. Forest Service (USFS) (and Bureau of Land Management) lands. “This new groundwater ‘directive’ they’re floating is no less than a breach of the separation of powers and of western states’ primacy over waters within their borders,” he told WLJ.

The USFS proposal, which is out for public comment until August 4, asserts federal reserved rights of water on USFS land while at the same time directing agency employees to enforce new permitting requirements on water rights holders, Van Liew explained. He said the language in the draft directive is so broad, it could be applied not only to activities directly related to water (such as wells and pipeline construction and maintenance) but to other activities on USFS land, as well.

“While the proposal is a ‘groundwater’ directive, the agency asserts that all groundwater is ‘hydraulically connected’ to surface water—thus practically all uses of surface water could be regulated,” he said. “This will affect wells, pipelines, stock tanks, and possibly even grazing permits themselves. Livestock obviously depend on surface water— which, by Forest Service’s proposed definition, affects groundwater.”

The USFS draft directive proposes to “evaluate and manage the surface water– groundwater hydrological system” and to “consider the effects of proposed actions on groundwater quantity, quality, and timing prior to approving a proposed use or implementing a Forest Service activity.” Activities that USFS determines may have negative effects on groundwater resources would require monitoring and mitigation measures. Well and pipeline projects could be rejected at the discretion of the “authorizing officer” if “groundwater resources would be compromised, despite mitigation.”

“They’re trying to assert authority they don’t have over surface water by asserting authority they don’t have over groundwater,” Van Liew told WLJ. “And at the same time, they are claiming that they have federal reserved rights to the water.

Well which one is it? If USFS has reserved rights and current private water rights don’t actually exist, why would the agency even bother to propose regulating them? And furthermore, why does this very document state that the agency will pursue a policy of obtaining water rights that are ‘needed by the Forest Service,’ if the agency has, as it claims, reserved rights to the water already? None of it makes any sense. The entire proposed directive should be withdrawn immediately.”

Van Liew said PLC is currently working with the timber, mining, and other multiple-use industries to write official comments on the proposed directive. He said that last week, 43 U.S. senators and representatives sent a letter to the Obama administration protesting the draft directive. A hearing to address the proposed policy was held that same day by the U.S. House Natural Resources Water and Power Subcommittee.

“The hearing shed light on a proposal that was not getting a lot of media attention,” said Van Liew. “There were some great statements made, even by non-western members who understood the gravity of the proposal. I couldn’t have agreed more with the congressman from Missouri, Jason Smith, who said he’d be shocked at this assertion of regulatory authority if this were any other administration. But really, given the Obama administration’s track record, how can we be shocked?” In the draft directive, US- FS cited as their authority 11 federal statutes, executive orders, and existing regulations.

“They went for the spaghetti effect in citing their ‘authority’—throw a bunch of laws and regulations at the wall and see what sticks,” Van Liew remarked. “And despite everything they listed, they still have absolutely zero authority to do what they propose to do.”

The draft directive proposes to bring the Environmental Protection Agency (EPA) into the picture by stating that USFS, “if appropriate,” will manage groundwater quantity and quality on NFS land “in cooperation” with EPA. The draft also proposes to “evaluate all applications for state water rights on NFS (national forest system) lands and those on adjacent lands with the potential to affect NFS groundwater resources”—indicating that USFS may attempt to influence water uses even on non-Forest Service land.

In last week’s hearing, Water and Power Subcommittee Chairman Tom Mc- Clintock (R-CA) harkened back to another subcommittee hearing held two years ago to address USFS’ attempt to “extort” private water rights in exchange for special use permits. Now, he said, USFS is taking another run at water rights by “impos[ing] federal riparian rights in direct violation of federal law, overturning western state doctrines of prior appropriations…”. He expressed frustration that, despite the subcommittee’s invitation, no representative of the administration had come to the hearing to explain the draft directive or answer questions from the legislative branch. He indicated that Congress would be putting forth legislation to stop USFS’ draft directive if it were not withdrawn by the agency.

An attorney from Washington State who testified at the hearing stated that the new USFS permitting requirements would “make meeting current and future water needs, and responding to climate variability, more difficult, more time consuming, and more expensive.”

Van Liew agreed that USFS was missing the mark if they really intended to improve water resources.

“This stems from a fundamental lack of understanding of what promotes water quality and wise use,” said Van Liew. “They’re proposing to add more regulatory shackles to the ball-and chain regulations that are already dragging down good management and harming our water resources. Just look at the rampant wildfires devastating our watersheds, because regulations and litigation are preventing fuel management.”

He added that private water rights holders are better equipped than a vast federal agency to respond quickly to resource needs.

“For example, if drought calls for distribution of livestock to new areas, ranchers with water rights have the incentive and the on-theground knowledge and ability to reroute the water as needed,” Van Liew said. “It’s private property rights, not stifling regulations, that promote wise resource use.” – WLJ