The U.S. Forest Service (USFS) is at odds with some members of Congress and other critics about a proposed government directive on groundwater resource management. The USFS says the proposed directive is an innocuous internal measure to provide a consistent, systematic, and transparent agency-wide approach to groundwater management. However, some participants in a 10 September congressional hearing questioned the directive, saying that the agency is overstepping its bounds.
The measure, known as the “Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560,” “would help ensure consistent and adequate analyses for evaluating potential uses of NFS [National Forest System] lands that could affect groundwater resources,” the 6 May Federal Register notice states.
The USFS currently does not have any comprehensive direction for management of groundwater resources on the 193 million acres of federal lands that it administers, according to the Federal Register notice. In addition, the notice states that many of the policies and procedures in the directive are consistent with management and regulatory approaches in many states and localities and that the directive “does not pose the risk of a taking of private property.”
According to the proposed directive, USFS management efforts would focus on parts of the groundwater system that—if depleted or contaminated—could adversely affect surface resources. The directive also would establish a framework to evaluate effects of existing and proposed uses of NFS lands on associated groundwater resources.
At the 10 September hearing by the House of Representatives Agriculture Subcommittee on Conservation, Energy, and Forestry, USFS chief Thomas Tidwell defended the directive, noting that it does not specifically authorize or prohibit any uses and is not an expansion of authority.
“This directive is not new authority,” Tidwell testified. “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 the National Forest System land.” Tidwell added that the proposed measure does not change existing authorities of the states to allocate water and does not impose any new restrictions on mineral or oil and gas development.
Tidwell also commented on the directive’s language that groundwater and surface water “would be assumed to be hydraulically connected, unless demonstrated otherwise using site-specific information.” He explained, “This assumption is based on what we believe is well-developed scientific understanding, but we recognize that this is not always going to be the case. When it’s not, that’s great; we can identify that and move on.” He noted that many states also recognize this interconnectivity approach.
In addition, Tidwell acknowledged the need to clarify some terminology in the proposed directive. “Although the term ‘managed groundwater’ was used frequently in the draft, we specifically mean to inventory and evaluate the data and be able to monitor the effects of uses of national forests and grasslands,” he said. “I recognize without any question that we need to clarify that [terminology]. For some, the interpretation of the term ‘manage’ means more than we intended.”
“I understand that water is a contentious issue,” Tidwell testified. “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 positions as we see more and more challenges coming from the courts.”
Concerns Include Stepping on States’ Rights
House agriculture subcommittee chair Rep. Glenn Thompson (R-Pa.) expressed concern that the proposal lacks clarity and could result in less management of the forest system and more litigation. In addition, he said the proposal could potentially preclude private water rights and increase permitting requirements for activities in the national forest system. “I remain concerned that the 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,” he said.
Committee member Rep. Kristi Noem (R-S.D.) also attacked the measure, stating that the directive could impose delays and burdens on state permitting processes. “You could see why this [directive] would alarm everybody who has been in charge of this process in the past when you suddenly, through a directive, claim jurisdiction over something you have never been able to do before.”
An Added Burden?
Several Democrats on the committee expressed concern that the directive would burden the USFS, whose budget is already stretched thin dealing with wildfires. Rep. Kurt Schrader (D-Oreg.) said, “The biggest concern I think many of us have is the 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. I am very concerned about [the USFS] taking on a whole other initiative, no matter how well intended it is.”
Currently, the USFS makes intra-agency transfers of funds to cover expenses for wildfire management. While Congress usually repays these funds within several months, the transfer places burdens on other USFS work to manage forests. Schrader is cosponsor of the Wildfire Disaster Funding Act of 2014 (H.R. 3992), which would create an emergency funding process for the response to cataclysmic fires. Similar legislation (Senate bill 1875) was introduced in 2013.
Asked whether the groundwater or wildfire issue was more important for the agency, Tidwell responded that the need to resolve the issue around wildfire costs is a top priority.
“There is just no question that conditions have changed on the land over the last decade-plus, and the cost of fires continues to go up,” he said, adding that the intent of the proposed groundwater directive is to reduce some problems, including court challenges, so the agency can deal with other concerns. “The purpose [of the directive] is to maybe take this issue off the table but at the same time allow us to really focus on what’s really a much more important pressing issue for us to be dealing with.”
Opposition From Western States
At the hearing, witnesses on a second panel testified in opposition to the directive. Anthony Willardson, executive director of the Western States Water Council, said his group is concerned that the directive could conflict with state water management and the administration of water rights. He requested that the USFS have an “authentic dialogue” with states about appropriate policies that reflect the legal division of power and the “on-the-ground realities of the West.” He said, “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.”
Willardson referenced a 2 July letter from the Western Governors’ Association (WGA) to Secretary of Agriculture Tom Vilsack that expressed concern that the directive could have significant implications for states and their groundwater resources. That letter, signed by Colorado governor John Hickenlooper and Nevada governor Brian Sandoval, then WGA chair and vice chair, respectively, also questioned the directive’s assumption of a hydrological connection between groundwater and surface water. “[W]ithout 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,” the letter states.
The Colorado Farm Bureau’s opposition to 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 [between groundwater and surface water], and its authorization of actions in violation of the takings clause” of the U.S. Constitution, Colorado Farm Bureau president Don Shawcroft testified.
“As a matter of law and process, this [directive] appears to be an effort by the [Obama] administration to grant itself unprecedented control over waters of the states and ultimately greater control over the natural resources of the West,” he said. “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.”
To read and comment on the proposed directive, see http://www.gpo.gov/fdsys/pkg/FR-2014-05-06/html/2014-10366.htm. For congressional testimony on the legislation, see https://agriculture.house.gov/hearing/review-us-forest-services-proposed-groundwater-directive.
—Randy Showstack, Staff Writer