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HEARING TO REVIEW THE U.S. FOREST 

SERVICE’S PROPOSED GROUNDWATER 

DIRECTIVE 

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 

COMMITTEE ON AGRICULTURE 

FRANK D. LUCAS, Oklahoma, Chairman 

BOB GOODLATTE, Virginia, 

Vice Chairman 

STEVE KING, Iowa 

RANDY NEUGEBAUER, Texas 

MIKE ROGERS, Alabama 

K. MICHAEL CONAWAY, Texas 

GLENN THOMPSON, Pennsylvania 

BOB GIBBS, Ohio 

AUSTIN SCOTT, Georgia 

SCOTT R. TIPTON, Colorado 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

SCOTT DESJARLAIS, Tennessee 

CHRISTOPHER P. GIBSON, New York 

VICKY HARTZLER, Missouri 

REID J. RIBBLE, Wisconsin 

KRISTI L. NOEM, South Dakota 

DAN BENISHEK, Michigan 

JEFF DENHAM, California 

STEPHEN LEE FINCHER, Tennessee 

DOUG LAMALFA, California 

RICHARD HUDSON, North Carolina 

RODNEY DAVIS, Illinois 

CHRIS COLLINS, New York 

TED S. YOHO, Florida 

VANCE M. MCALLISTER, Louisiana 

COLLIN C. PETERSON, Minnesota, Ranking 

Minority Member 

MIKE MCINTYRE, North Carolina 

DAVID SCOTT, Georgia 

JIM COSTA, California 

TIMOTHY J. WALZ, Minnesota 

KURT SCHRADER, Oregon 

MARCIA L. FUDGE, Ohio 

JAMES P. MCGOVERN, Massachusetts 

SUZAN K. DELBENE, Washington 

GLORIA NEGRETE MCLEOD, California 

FILEMON VELA, Texas 

MICHELLE LUJAN GRISHAM, New Mexico 

ANN M. KUSTER, New Hampshire 

RICHARD M. NOLAN, Minnesota 

PETE P. GALLEGO, Texas 

WILLIAM L. ENYART, Illinois 

JUAN VARGAS, California 

CHERI BUSTOS, Illinois 

SEAN PATRICK MALONEY, New York 

JOE COURTNEY, Connecticut 

JOHN GARAMENDI, California 

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 

BOB GIBBS, Ohio 

SCOTT R. TIPTON, Colorado 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

REID J. RIBBLE, Wisconsin 

KRISTI L. NOEM, South Dakota 

DAN BENISHEK, Michigan 

VANCE M. MCALLISTER, Louisiana 

TIMOTHY J. WALZ, Minnesota, Ranking 

Minority Member 

GLORIA NEGRETE MCLEOD, California 

ANN M. KUSTER, New Hampshire 

RICHARD M. NOLAN, Minnesota 

MIKE MCINTYRE, North Carolina 

KURT SCHRADER, Oregon 

SUZAN K. DELBENE, Washington 

(II) 

(III) 

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 

(1) 

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 

2 

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. 

3 

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 

4 

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 

5 

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 

6 

1http://www.fs.fed.us/publications/policy-analysis/water.pdf. 2www.fs.fed.us/pnw/pubs/pnw_gtr812.pdf. 3 79 Fed. Reg. 25815. 

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

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: 

• 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 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 

7 

• 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 decisionmaking. 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. 

8 

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? 

9 

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 

10 

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. 

11 

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? 

12 

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. 

13 

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 dealVerDate Mar 15 2010 12:32 Dec 19, 2014 Jkt 041481 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 I:\DOCS\113-21\89799.TXT BRIAN
14 

ing 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. 

15 

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 

16 

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, 

17 

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 

18 

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. 

19 

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 auVerDate Mar 15 2010 12:32 Dec 19, 2014 Jkt 041481 PO 00000 Frm 00023 Fmt 6633 Sfmt 6601 I:\DOCS\113-21\89799.TXT BRIAN
20 

thority. 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 

21 

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? 

22 

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 

23 

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 21⁄2 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 

24 

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. 

25 

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. 

26 

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 

27 

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—— 

28 

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 

29 

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 

30 

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. 

31 

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 

32 

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 

33 

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-theground 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 

34 

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 governVerDate Mar 15 2010 12:32 Dec 19, 2014 Jkt 041481 PO 00000 Frm 00038 Fmt 6633 Sfmt 6621 I:\DOCS\113-21\89799.TXT BRIAN
35 

ment. 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 

36 

* (See also Position No. 337). 

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.* 

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 estabVerDate Mar 15 2010 12:32 Dec 19, 2014 Jkt 041481 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 I:\DOCS\113-21\89799.TXT BRIAN
37 

lishing 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). 


11321007.eps
38 

» 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: 

39 

1The 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. 

• 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. PEN ̃ A, 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 Pen ̃ a: 

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. 

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 Pen ̃ a at the July 14–18 WSWC meeting in 

Helena, MT. These comments are in further response to USFS’s request for comments, and Chief Pen ̃ a’s personal request for more detailed response from member 

states. 

Chief Pen ̃ a 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 

40 

2David W. Schade, MPA, ADNR/DMLW Water Resources Section Chief notes of comments 

made by Associate Deputy Chief Pen ̃ a to WSWC at the Council Committee Meetings July 17, 

2014 in Helena, MT. 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. 5http://www.fs.fed.us/land/staff/lar/2007/TABLE_4.htm. 

impact water. He also noted that the USFS just wanted to be treated equal to any 

other landowner.2

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 man- agement of groundwater needs to be conducted cooperatively with the states and 

tribes to be successful.’’ (Italics added) These statements are not aligned with Chief 

Pen ̃ a’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. 

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 midlatitude 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. 

(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 responsiVerDate Mar 15 2010 12:32 Dec 19, 2014 Jkt 041481 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 I:\DOCS\113-21\89799.TXT BRIAN
41 

bility of forest and grassland supervisors to coordinate and implement 

agreements with Federal, state, and local agencies . . . for management . . . 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 

42 

6The 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. 

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 Pen ̃ a, and in the latest expanded question and 

answer paper. 

(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 

43 

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 Pen ̃ a’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 Pen ̃ a 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, 


11321001.eps
44 

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 timber . . . .’’ 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 

45 

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 underlying NFS lands cooperatively 

with states and Territories . . . and 

Tribes to promote long-term maintenance or restoration of groundwater 

systems and their groundwater-dependent ecosystems . . . .’’ 

The meaning of ‘‘manage’’ and ‘‘cooperatively’’ are unclear. The state is solely 

responsible for administering, allocating, and distributing the public 

water of Idaho. 

2560.03.1 ‘‘Focus Forest Service 

groundwater resource management on those portions of the groundwater system that if depleted or contaminated would have an adverse effect on surface resources or present or 

future uses of groundwater.’’ 

The meaning of ‘‘Forest Service groundwater resource’’ 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. 

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 

groundwater resources as hydraulically interconnected . . . unless it 

can be demonstrated otherwise.’’ 

The meaning of ‘‘manage’’ is unclear. The 

state is solely responsible for administering, allocating, and distributing 

the public water of Idaho. 

2560.03.3 ‘‘Evaluate and manage the 

surface water-groundwater hydrological system . . . .’’ 

The meaning of ‘‘manage’’ is unclear. The 

state is solely responsible for administering, allocating, and distributing 

the public water of Idaho. 

2560.03.4.d ‘‘Require monitoring and 

mitigation appropriate to the scale 

and nature of potential effects . . . 

when authorizing a proposed use or 

Forest Service activity that has a significant potential to adversely affect 

NFS groundwater resources.’’ 

The USFS does not have authority to 

unilaterally require mitigation for 

groundwater depletions. The state is 

solely responsible for administering, 

regulating, and distributing all water 

rights in Idaho and for 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. 

46 

Provision State of Idaho’s Concern 

2560.03.6.a ‘‘Manage groundwater 

quantity and quality on NFS lands 

in cooperation with appropriate state 

agencies . . . .’’ 

The meaning of ‘‘manage’’ is unclear. The 

state is solely responsible for administering, 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 protection areas, source water protection 

areas, and critical aquifer protection 

areas that are designated pursuant to 

the . . . SDWA . . . or state equivalent.’’ 

The meaning of ‘‘manage’’ is unclear. The 

state is solely responsible for administering, allocating, and distributing 

the public water of Idaho. 

2560.03.6.e ‘‘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.’’ 

The state controls the terms and conditions 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 state water right process. 

2560.03.8.a ‘‘Require measurement 

and reporting to the Forest Service 

in the corresponding written authorization of the quantity of 

water utilized for all public drinking 

water systems that withdraw groundwater from NFS lands and that are 

classified as community water systems under the SDWA.’’ 

The term ‘‘corresponding written authorization of the quantity of water utilized’’ is unclear. To the extent this 

means a state-issued water right, the 

state controls the terms and conditions 

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.b ‘‘Require measurement 

and reporting to the Forest Service 

in the corresponding written authorization of the quantity of 

water utilized for all groundwater 

withdrawals from high-capacity wells 

located on NFS lands . . . .’’ 

The term ‘‘corresponding written authorization of the quantity of water utilized’’ is unclear. To the extent this 

means a state-issued water right, the 

state controls the terms and conditions 

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. 

47 

Provision State of Idaho’s Concern 

2560.03.8.c ‘‘Require measurement 

and reporting to the Forest Service 

in the corresponding written authorization of the quantity of 

water injected for those large waterinjection wells located on NFS lands 

that open into a geological formation 

containing fresh water . . . .’’ 

The term ‘‘corresponding written authorization of the quantity of water utilized’’ is unclear. To the extent this 

means a state-issued water right, the 

state controls the terms and conditions 

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. 

2560.04h.9 ‘‘Appropriately address adverse impacts on groundwater resources from proposed and authorized activities such as by modifying 

the activities or adopting mitigation strategies.’’ 

The state is responsible for administering, regulating, and distributing 

all water rights in Idaho. To the extent 

the USFS believes its water rights are 

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 

NFS lands . . . NFS groundwater 

resources’’ 

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. 

2561.22.2 ‘‘Require or recommend, as 

appropriate, that . . . applicable 

State agencies appropriate lease 

terms, design modification, and approval conditions, as applicable, to 

protect NFS groundwater resources . . . .’’ 

The USFS cannot require that a state 

agency use certain lease terms, design 

modifications, or approval conditions. 

2561.25.4 ‘‘Provide to the authorizing 

entity recommendations or requirements, as appropriate, to protect NFS 

water resources, including whether 

the water produced from geothermal 

resource operations should be allowed 

to discharge into surface drainages.’’ 

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. 

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 an 

authorization or approving modification of an authorized use, require 

implementation of water conservation strategies to limit total water 

withdrawals from NFS lands . . . .’’ 

The state is solely responsible for administering, regulating, and distributing 

all water rights in Idaho. To the extent 

the USFS 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. 

48 

Provision State of Idaho’s Concern 

2563.7.2 ‘‘Ensure that all new and reissued authorizations . . . provide 

for modification of their terms and 

conditions at the sole discretion of the 

authorized officer . . . to prevent the 

authorized groundwater withdrawals or injections from significantly reducing the quantity or unacceptably modifying the quality of 

surface or groundwater resources 

on NFS lands.’’ 

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. 

The state is solely responsible for administering, allocating, and distributing 

the public water of Idaho. To the extent the USFS 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 insufficiency of mitigation measures or additional or unforeseen adverse impacts 

on NFS water resources from 

groundwater withdrawals or injections . . . [a]dd monitoring or mitigation measures, change or limit 

the activities authorized, modify 

the holder’s operations, or otherwise modify the terms and conditions of the authorizations if deemed 

necessary . . . to prevent the authorized groundwater withdrawals or injections from significantly reducing 

the quantity or unacceptably modifying the quality of surface or 

groundwater resources on NFS 

lands.’’ 

The meanings of ‘‘NFS groundwater resources’’ and ‘‘groundwater resources 

on NFS lands’’ are 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. 

The state is responsible for administering, regulating, and distributing 

all water rights in Idaho. To the extent 

the USFS believes its water rights are 

being injured by existing authorized 

groundwater use on National Forest 

lands, it must seek administration of 

its water 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 


11321002.eps
49 

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 

50 

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. 


11321003.eps
51 

(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. 

52 

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 landowner 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 

53 

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 

54 

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 

55 

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. 

56 

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 

57 

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. 

58 

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 


11321004.eps
59 

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 overregulation 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. 

60 

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 stephen.bernath@ecy.wa.gov or Jeff Marti of the Water Resources Program at 

jeff.marti@ecy.wa.gov. 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 


11321005.eps
61 

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 nonconnection 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 

62 

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 

63 

(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-thanfully 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. 


11321006.eps
64 

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 connecVerDate Mar 15 2010 12:32 Dec 19, 2014 Jkt 041481 PO 00000 Frm 00068 Fmt 6633 Sfmt 6601 I:\DOCS\113-21\89799.TXT BRIAN
65 

tion 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 

66 

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: 

67 

1http://tipton.house.gov/press-release/tipton-forest-service-waging-multiple-assaults-waterrights. 2http://www.leg.state.co.us/CLICS/CLICS2014A/csl.nsf/BillFoldersAll?OpenFrameSet. 3http://www.justice.gov/enrd/3245.htm. 

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

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. 

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.’’ 

68 

4http://www.justice.gov/enrd/3245.htm. 

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

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. 

69 

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. 

70 

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 opporVerDate Mar 15 2010 12:32 Dec 19, 2014 Jkt 041481 PO 00000 Frm 00074 Fmt 6633 Sfmt 6601 I:\DOCS\113-21\89799.TXT BRIAN
71 

tunity 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 

72 

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 

73 

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. 

74 

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 

75 

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 

76 

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:] 

77 

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 

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ister 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 

79 

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 

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ties 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 

81 

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. 

82 

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. 

83 

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. 

84 

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=. 

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. 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. 

➢ 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 

85 

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. 

➢ 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 

86 

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=. 

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

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 

87 

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. 

Federal efforts. As the Service has written in a ‘‘Frequently Asked Questions’’ document for the proposed directive on groundwater,3

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 


11321009.eps
88 

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.’’ 

89 

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. 

90 

* There was no response from the witness by the time this hearing went to press. 

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 * 

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? 

Æ