FEDS ATTEMPTING TO USURP AUTHORITY OVER GROUNDWATER?

Screen Shot 2014-10-13 at 5.27.53 AMAs reported in an article originally published on ksl.com, there is concern that the USFS (Forest Service) is attempting to usurp state authority regarding the regulation of groundwater.

SALT LAKE CITY — The head of the U.S. Forest Service said the agency is within its rights to prevent contamination of groundwater with a proposed directive that has Western states’ governors, the farm bureau and state water right managers alarmed.

Tom Tidwell, who was in Salt Lake City this week attending a global forest science conference, said the proposed directive released earlier this summer is merely an attempt to ensure the agency isn’t despoiling water resources.

“We do not want to contaminate groundwater through the decisions we make or the activities we have on the national forests,” he said. “We do not want to dewater people’s wells, people’s springs or impact people’s water rights through these activities. The only way we can do that is to evaluate the impact of our activities.”

Critics to the proposal — which is an internal policy move that can be acted on at the discretion of the agency — say the administrative change is anything but benign.

“The directive would imperil historic water rights and challenge state authority by seeking to obtain water rights for ‘groundwater and groundwater dependent surface water needed by the forest service,'” wrote Randy Parker, executive director of the Utah Farm Bureau.

“Limiting the quantity of groundwater withdrawals through special use authorizations would, in effect, amount to superseding states’ authority to issue water rights.”   –the Western Governors’ Association

Parker and other opponents weighed in with protests on the proposal in a public comment period that ended last week.

In comments from the Western Governors’ Association, the group noted the agency is attempting to exert regulatory authority in a domain clearly reserved for the states.

“(These) portions of the proposed directive assume that the service has some type of authority over the management of groundwater, which is does not. … 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.”

Tidwell was called on to defend the directive during a congressional meeting earlier this summer and reiterated in an interview that the review of groundwater resources is not a swipe at states’ authority.

“I know there has been a concern and I have tried to be very clear that this does not in any way infringe on the states’ authority to allocate water,” he said.

Screen Shot 2014-10-13 at 5.16.51 AMTidwell added that there have been instances in the past — particularly with large mining operations — where groundwater has been contaminated or at risk of contamination.

“We have been able to show that we can mitigate those impacts and make sure contamination does not occur,” he said, adding that states are “very quick to sue for damages” when contamination has happened.

But Utah State Engineer Kent Jones told state water leaders late this summer that the directive is concerning because of its potential to impact thousands of water rights held by individuals and cities.

If a permitted use under review by the Forest Service is deemed to put at risk groundwater resources, the concern is the agency could take action that would impair the right to use that water, Jones said.

Critics say such interference would have far-reaching effects.

“Recognizing that 70 percent or more of Utah’s water falls as rain and snow on National Forest Service administered lands, the proposed directive would create uncertainty for water rights and their approved beneficial uses across the state,” Parker wrote.

Parker said groups are going to continue to put pressure on the agency to pull back its proposal.

“It challenges the sovereign water rights of the state, so the beginning point is getting them to recognize this is beyond their authority and get them to withdraw it,” he said, adding there may be legal options that are pursued if the agency does not.