```

[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]

                   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

                                   ______

                         U.S. GOVERNMENT PRINTING OFFICE 

89-799 PDF                     WASHINGTON : 2014 
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  For sale by the Superintendent of Documents, U.S. Government Printing 
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                          Washington, DC 20402-0001

                        COMMITTEE ON AGRICULTURE

                   FRANK D. LUCAS, Oklahoma, Chairman

BOB GOODLATTE, Virginia,             COLLIN C. PETERSON, Minnesota, 
    Vice Chairman                    Ranking Minority Member
STEVE KING, Iowa                     MIKE McINTYRE, North Carolina
RANDY NEUGEBAUER, Texas              DAVID SCOTT, Georgia
MIKE ROGERS, Alabama                 JIM COSTA, California
K. MICHAEL CONAWAY, Texas            TIMOTHY J. WALZ, Minnesota
GLENN THOMPSON, Pennsylvania         KURT SCHRADER, Oregon
BOB GIBBS, Ohio                      MARCIA L. FUDGE, Ohio
AUSTIN SCOTT, Georgia                JAMES P. McGOVERN, Massachusetts
SCOTT R. TIPTON, Colorado            SUZAN K. DelBENE, Washington
ERIC A. ``RICK'' CRAWFORD, Arkansas  GLORIA NEGRETE McLEOD, California
SCOTT DesJARLAIS, Tennessee          FILEMON VELA, Texas
CHRISTOPHER P. GIBSON, New York      MICHELLE LUJAN GRISHAM, New Mexico
VICKY HARTZLER, Missouri             ANN M. KUSTER, New Hampshire
REID J. RIBBLE, Wisconsin            RICHARD M. NOLAN, Minnesota
KRISTI L. NOEM, South Dakota         PETE P. GALLEGO, Texas
DAN BENISHEK, Michigan               WILLIAM L. ENYART, Illinois
JEFF DENHAM, California              JUAN VARGAS, California
STEPHEN LEE FINCHER, Tennessee       CHERI BUSTOS, Illinois
DOUG LaMALFA, California             SEAN PATRICK MALONEY, New York
RICHARD HUDSON, North Carolina       JOE COURTNEY, Connecticut
RODNEY DAVIS, Illinois               JOHN GARAMENDI, California
CHRIS COLLINS, New York
TED S. YOHO, Florida
VANCE M. McALLISTER, Louisiana

                                 ______

                      Nicole Scott, Staff Director

                     Kevin J. Kramp, Chief Counsel

                 Tamara Hinton, Communications Director

                Robert L. Larew, Minority Staff Director

                                 ______

           Subcommittee on Conservation, Energy, and Forestry

                 GLENN THOMPSON, Pennsylvania, Chairman

MIKE ROGERS, Alabama                 TIMOTHY J. WALZ, Minnesota, 
BOB GIBBS, Ohio                      Ranking Minority Member
SCOTT R. TIPTON, Colorado            GLORIA NEGRETE McLEOD, California
ERIC A. ``RICK'' CRAWFORD, Arkansas  ANN M. KUSTER, New Hampshire
REID J. RIBBLE, Wisconsin            RICHARD M. NOLAN, Minnesota
KRISTI L. NOEM, South Dakota         MIKE McINTYRE, North Carolina
DAN BENISHEK, Michigan               KURT SCHRADER, Oregon
VANCE M. McALLISTER, Louisiana       SUZAN K. DelBENE, Washington

                                  (ii)
                                  
                                  
                                  
                             C O N T E N T S

                              ----------                              
                                                                   Page
Schrader, Hon. Kurt, a Representative in Congress from Oregon, 
  opening statement..............................................     3
Thompson, Hon. Glenn, a Representative in Congress from 
  Pennsylvania, opening statement................................     1
    Prepared statement...........................................     2

                               Witnesses

Tidwell, Thomas L., Chief, U.S. Forest Service, U.S. Department 
  of Agriculture, Washington, D.C................................     4
    Prepared statement...........................................     5
    Submitted questions..........................................    77
Willardson, Anthony G., Executive Director, Western States Water 
  Council, Murray, UT............................................    31
    Prepared statement...........................................    32
    Submitted questions..........................................    82
Shawcroft, Don, President, Colorado Farm Bureau, Centennial, CO..    64
    Prepared statement...........................................    65
    Submitted questions..........................................    87
Verhines, P.E., Scott A., New Mexico State Engineer, Santa Fe, NM    70
    Prepared statement...........................................    71
    Submitted questions..........................................    90

 
                   HEARING TO REVIEW THE U.S. FOREST
                     SERVICE'S PROPOSED GROUNDWATER

                               DIRECTIVE

                              ----------                              

                     WEDNESDAY, SEPTEMBER 10, 2014

                  House of Representatives,
        Subcommittee on Conservation, Energy, and Forestry,
                                  Committee on Agriculture,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to call, at 10:06 a.m., in 
Room 1300 of the Longworth House Office Building, Hon. Glenn 
Thompson [Chairman of the Subcommittee] presiding.
    Members present: Representatives Thompson, Rogers, Gibbs, 
Tipton, Crawford, Noem, Benishek, McAllister, Walz, Kuster, 
Nolan, Schrader, and DelBene.
    Staff present: Caleb Crosswhite, Nicole Scott, Patricia 
Straughn, Tamara Hinton, John Konya, Lisa Shelton, Robert L. 
Larew, Evan Jurkovich, and Riley Pagett.

 OPENING STATEMENT OF HON. GLENN THOMPSON, A REPRESENTATIVE IN 
                   CONGRESS FROM PENNSYLVANIA

    The Chairman. Okay, everybody. Welcome. This hearing of the 
Subcommittee on Conservation, Energy, and Forestry to review 
the U.S. Forest Service's proposed Groundwater Directive, will 
come to order.
    Once again, good morning. I want to welcome everyone to 
this hearing of the Conservation, Energy, and Forestry 
Subcommittee to review the Forest Service's proposed 
Groundwater Directive. And while the topic of water management 
is absolutely critically important for all Americans, it is 
especially so for our farmers, our ranchers in rural 
communities who live off the land. As an example, water 
management is of critical importance to western Members of this 
Committee, given the scarce supplies that we have seen in 
recent years.
    Now, among the Forest Service's multiple-use mission, it is 
essential to note that the two principal reasons specifically 
articulated within the Weeks Act behind the creation of our 
National Forest System was to regulate the flow of navigable 
streams or for the production of timber.
    In May, USDA issued for public comment a Proposed Directive 
relating to the management of groundwater, non-navigable 
streams, in our National Forest System. The proposal outlines 
the Forest Service's justification for this policy and provides 
detailed instruction for field staff in managing groundwater 
resources. The proposal lays out the scope of acceptable 
groundwater uses and establishes new processes and procedures 
for special use authorizations that involve access to and 
withdrawal of groundwater resources.
    Now, I along with other Members of the Subcommittee, have 
heard concerns from forestry and agriculture groups about the 
scope, lack of clarity, and potential impacts if this Directive 
were to be adopted as currently proposed. We have heard 
concerns that the Directive could result in less management on 
the National Forest System, more litigation, potential 
preclusion of private water rights, and increased permitting 
requirements for activities in the National Forest System.
    For many Americans around the country that rely on National 
Forest lands, these possibilities are beyond comprehension. 
Several groups have questioned the legal justification used by 
the Forest Service in putting forth this proposal. Multiple 
groups have suggested that the Proposed Directive usurps the 
existing authority of states to manage groundwater. There is a 
wide range of management challenges affecting the health of the 
National Forests including a lack of much-needed timber 
harvesting which significantly contributes to ever-increasing 
problems of wildfires and invasive species.
    Now, I remain concerned that this Directive would create 
more problems than it proclaims to solve and will further 
undermine the ability of the agency to carry out its management 
responsibilities. Now, I am pleased that the Forest Service has 
extended--I am very appreciative that the Forest Service has 
extended the comment period for another month to allow more 
time for interested groups to weigh in on this proposal, and we 
have before us expert testimony on this complicated topic, and 
I thank them all for being here. And I want to welcome back 
Chief Tidwell who has appeared before this Subcommittee on a 
number of occasions and thank him for his service in the United 
States Forest Service and to our country.
    I have enjoyed our working relationship over the last few 
years and look forward to continue to work together to find 
ways to improve the health, the economic productivity, and 
recreational opportunities within the National Forest System, 
and we look forward to the Chief's testimony in offering the 
agency's perspective about how this Directive came about and 
why the agency believes that this Directive is necessary, and 
fundamentally how the Forest Service believes it has actually 
the legal authority to take this unprecedented move.
    We will also hear from a second panel of witnesses who will 
share with us their views on this proposal and any concerns 
they wish to offer publicly, and this hearing is an opportunity 
for Members of the Subcommittee to learn about this sometimes 
complicated topic and engage our panel of witnesses.
    [The prepared statement of Mr. Thompson follows:]

Prepared Statement of Hon. Glenn Thompson, a Representative in Congress 
                           from Pennsylvania
    Good morning. I want to welcome everyone to this hearing of the 
Conservation, Energy, and Forestry Subcommittee to review the Forest 
Service's proposed Groundwater Directive.
    While the topic of water management is critically important for all 
Americans--it is especially so for our farmers, ranchers, and rural 
communities who live off the land.
    As an example, water management is of critical importance to the 
western Members of this Committee, given the scare supplies we've seen 
in recent years.
    Among the Forest Service's multiple-use mission, it's essential to 
note that one of the principal reasons behind the creation of our 
National Forest System was to promote the health and proper maintenance 
of watersheds.
    In May, USDA issued for public comment a proposed directive 
relating to the management of groundwater in our National Forest 
System.
    The proposal outlines the Forest Service's justification for this 
policy and provides detailed instruction for field staff in managing 
groundwater resources.
    The proposal lays out the scope of acceptable groundwater uses, and 
establishes new processes and procedures for special use authorizations 
that involve access to and withdrawal of groundwater resources.
    I, along with other Members of this Subcommittee, have heard 
concerns from forestry and agricultural groups about the scope, lack of 
clarity, and potential impacts if this directive were to be adopted as 
currently proposed.
    We have heard concerns that the directive could result in less 
management on the National Forest System, more litigation, potential 
preclusion of private water rights, and increased permitting 
requirements for activities on the National Forest System.
    For many Americans around the country who rely on National Forest 
lands, these possibilities are beyond comprehension.
    Several groups have questioned the legal justification used by the 
Forest Service in putting forth this proposal.
    Multiple groups have suggested that the proposed directive usurps 
the existing authority of states to manage groundwater.
    There is a wide range of management challenges affecting the health 
of the National Forest System, including a lack of much needed timber 
harvesting, which significantly contributes the ever increasing problem 
of wildfires.
    I remain concerned that this directive would create more problems 
than it proclaims to solve, and will further undermine the ability of 
the agency to carry out its management responsibilities.
    I am pleased that the Forest Service has extended the comment 
period for another month to allow more time for interested groups to 
weigh in on this proposal.
    We have before us expert testimony on this complicated topic and I 
thank them all for being here.
    I want to welcome back Chief Tidwell, who has appeared before this 
Subcommittee on a number of occasions.
    I've enjoyed our working relationship over the last few years and 
look forward to continuing to work together to find ways to improve the 
health, economic productivity, and recreational opportunities within 
the National Forest System.
    We look forward to the Chief's testimony offering the agency's 
perspective about how this directive came about and why the agency 
believes this directive is necessary.
    We will also hear from a second panel of witnesses who will share 
with us their views on this proposal and any concerns they wish to 
offer publicly.
    This hearing is an opportunity for Members of the Subcommittee to 
learn about this sometimes complicated topic and engage our panel of 
witnesses.
    I now recognize my friend, the Ranking Member, for his opening 
statement.

    The Chairman. And I now recognize my friend serving for 
this hearing at this point as the acting Ranking Member for his 
opening statement, Mr. Schrader.

 STATEMENT OF HON. KURT SCHRADER, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF OREGON

    Mr. Schrader. Thank you, Mr. Chairman. I appreciate it. I 
appreciate our panel and Chief Tidwell for being here to answer 
some of our concerns. I hope that we will get a better 
understanding of why the Forest Service is approaching 
groundwater issues.
    The biggest concern many of us have is the budget itself. 
Forest Service budget itself seems always under siege. 
Wildfires consume an ever-increasing amount of it. The ability 
to actually manage our Forests is in question at this point in 
time. So I am very concerned about taking on a whole other 
initiative, no matter how well-intended. Where we are going to 
get the resources? So with that, I am looking forward to the 
hearing, Mr. Chairman.
    The Chairman. I thank the gentleman. Let us welcome the 
first witness to the table, our only witness for this first 
panel, Mr. Thomas Tidwell, Chief of the United States Forest 
Service, U.S. Department of Agriculture here in Washington, 
certainly no stranger to this Committee, and welcome back, 
Chief. I really appreciate you being here so that we could have 
this hearing and have this discussion. So Chief Tidwell, please 
begin whenever you are ready.

  STATEMENT OF THOMAS L. TIDWELL, CHIEF, U.S. FOREST SERVICE, 
                U.S. DEPARTMENT OF AGRICULTURE,
                        WASHINGTON, D.C.

    Mr. Tidwell. Okay. Mr. Chairman, Members of the 
Subcommittee, thank you for the opportunity to be here today to 
discuss our proposed internal Directive on how to deal with 
groundwater and the issues that resolve around that.
    Mr. Chairman, as you mentioned, this concept of healthy 
watersheds, clean and abundant water, was one of the 
foundational reasons for the National Forests. They exist today 
to secure the favorable conditions of water flow for the 
multiple uses and the benefits to sustain our economies and 
also maintain the communities across the nation today.
    Without a clear and publicly vetted agency direction, our 
agency decision makers have a very poor defensible position to 
be in when it comes to evaluating proposals that may impact 
groundwater. These are our proposals, things that we have to 
act on. And if we don't have a more systematic approach, this 
is going to continue to lead to more public concern, more 
controversy, and more lawsuits as the public expects and 
demands more from management of the public lands.
    So in May of this year, we put out our proposed Groundwater 
Directive to provide a consistent and systematic approach to 
evaluate and monitor the effects to groundwater from Forest 
Service proposed activities. Now, we have extended the comment 
period so that we especially have more time to be able to sit 
down with the states and be able to discuss with them some of 
the concerns that they have already expressed.
    But I need to clarify a few key points of this proposal. 
This Directive is not new authority. The Directive only 
clarifies our existing agency authorities and provides a 
consistent and systematic approach to evaluate the effects on 
groundwater from new proposals on National Forest System land. 
It is not a new regulation. We did put the notice in the 
Federal Register because that is the format that we are used 
to. It is what our stakeholders are really used to, and so that 
is why we use the Federal Register.
    It does not infringe on the states' authority, nor do we 
infer that the Proposed Directive extends to the appropriation 
of water. Although the term managed groundwater was used 
frequently in the draft, we specifically mean to inventory and 
evaluate the data and to be able to monitor the effects of uses 
on the National Forests and Grasslands.
    Now, part of our Proposed Directive is to be able to 
strengthen our cooperation with other government entities, 
states, and other Federal agencies when there is a proposal 
that is adjacent to National Forests that we believe may affect 
the groundwater on the National Forest. We will comment on it 
if there is a process, but it is just a comment. This does not 
infer that we have any authority beyond the National Forest 
System lands. But if there is an activity that we feel may 
impact the groundwater under the National Forests, may impact 
water uses on the National Forest, we will comment to the 
entity that is going to make the decision.
    The Groundwater Directive does not impose any new 
restrictions on mineral or oil/gas development. Our Proposed 
Directives do not change the existing situation of what we 
currently do when it comes to making decisions about minerals 
management and oil and gas development
    The Proposed Directive does assume that groundwater and 
surface water are hydrologically connected unless it has been 
demonstrated otherwise. This assumption is based on what we 
believe is well-developed, scientific understanding but also 
recognize that this is not always going to be the case, and 
when it is not, that is a good thing. We identify that and we 
can move on. I do want to point out that this is the approach 
that many of the states also recognize--this interconnectivity. 
This Proposed Directive does not change the existing 
authorities of the states to allocate water and has no bearing 
on state law for purpose of use allocation.
    Mr. Chairman, Members of the Subcommittee, I understand 
that water is a contentious issue. Our intention here with this 
Proposed Directive is to make it a little less so by having a 
consistent, systematic transparent approach. I believe we will 
be better partners with the states to ensure that the public 
continues to benefit from abundant, clean water, but also we 
will be in a better position to defend our decisions as we see 
more and more challenges coming from the courts.
    We look forward to reviewing all of the input that has been 
received on this proposal and already have heard ways to be 
able to clarify and improve the Directive. Once we evaluated 
all the comments, we will determine the path forward in the 
content of the final Directive.
    This concludes my oral remarks, and I will be happy to 
answer any of your questions.
    [The prepared statement of Mr. Tidwell follows:]

 Prepared Statement of Thomas L. Tidwell, Chief, U.S. Forest Service, 
            U.S. Department of Agriculture, Washington, D.C.
    Chairman Thompson, Ranking Member Walz, and Members of the 
Subcommittee, thank you for the opportunity to provide perspective on 
the role of the U.S. Department of Agriculture (USDA) in the 
stewardship of water resources on National Forest System (NFS) lands.
    Congress authorized the Forest Service to administer National 
Forest System (NFS) lands and to manage the many uses of those lands, 
including uses that have the potential to affect water resources. 
Congress directed the Forest Service to manage NFS lands to secure 
favorable conditions of water flow (Organic Administration Act of 
1897), for navigable stream protection (Weeks Law of 1911), and to 
mitigate floods, conserve surface and subsurface moisture, and protect 
watersheds (Bankhead-Jones Act of 1935).
    In addition, Congress has provided subsequent direction to the 
Forest Service regarding water, watersheds, and the management of those 
resources in a number of statutes, including the Multiple-Use 
Sustained-Yield Act of 1960, the National Forest Management Act of 
1976, and the Federal Land Policy and Management Act of 1976. To 
implement these and other authorities, the Forest Service has 
discretion over the ``formulation, direction, and execution of Forest 
Service policies, programs, and activities (36 CFR 200.1(b)).'' This is 
done in part through the issuance and revision of Forest Service 
Manuals and Handbooks (together termed ``directives'') that guide 
internal agency operations (7 CFR 2.7).
    Water on NFS lands is important for many reasons, including 
resource stewardship, domestic use, and public recreation. Today, water 
from National Forests and Grasslands contributes to the economic and 
ecological vitality of rural and urban communities across the nation, 
and those lands supply more than 60 million Americans with clean 
drinking water.\1\ NFS lands alone provide 18 percent of the nation's 
freshwater, and over \1/2\ the freshwater in the West.\2\
---------------------------------------------------------------------------
    \1\ http://www.fs.fed.us/publications/policy-analysis/water.pdf.
    \2\ www.fs.fed.us/pnw/pubs/pnw_gtr812.pdf.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \3\ 79 Fed. Reg. 25815.

   Create a more consistent approach for gathering information 
        about groundwater systems that influence and are influenced by 
        surface uses on NFS land and for evaluating the potential 
        effects on groundwater resources of proposed activities and 
---------------------------------------------------------------------------
        uses on NFS lands;

   Bolster the ability of Forest Service land managers to make 
        informed and legally defensible decisions, with a more complete 
        understanding of the potential impacts for activities on NFS 
        lands to and from groundwater;

   Support management and authorization of various multiple 
        uses by better allowing the Forest Service to meet its 
        statutory responsibility to fully analyze and disclose the 
        potential impacts of uses or activities; and

   Emphasize cooperation with State, Tribal and local agencies 
        and compliance with their applicable requirements.

    The Forest Service recognizes and specifically acknowledges in the 
proposed directives the role of states in the allocation of water use 
and protection of water quality. The proposed directive would not 
infringe on the states' authority, nor would it impose requirements on 
private landowners. The proposed directive does not change the long-
standing relationship between the Forest Service and states and Tribes 
on water. The Forest Service currently evaluates effects on groundwater 
and surface water resources of activities on NFS lands by working 
closely with state and Tribal agencies that have the responsibility for 
the allocation and protection of water resources, and the Forest 
Service will continue to do so in the future.
    The purpose of the proposed directive on groundwater is to clarify 
existing authorities and responsibilities and provide greater 
consistency and accountability in how the Forest Service carries out 
these obligations. By improving the agency's ability to understand 
groundwater resources and manage activities on NFS lands, the proposed 
directive would make the agency a better and more consistent partner to 
states, Tribes, and project proponents, as well as to the downstream 
communities that depend on NFS lands for their drinking water. By 
restoring and maintaining healthy watersheds, the Forest Service helps 
sustain these vital water resources upon which communities depend.
    The Groundwater Directive does not impose new restrictions on any 
uses, including oil and gas and other mineral development. The 
Groundwater Directive defers to existing Forest Service Manual 
Direction (Minerals and Geology Management--Chapter 2800) which 
contains the Forest Service procedures for approving minerals 
activities on NFS lands. States also have their own procedures for 
approving minerals activities within the state.
    Proposals to access federally-owned minerals on NFS lands require 
approval from both the state and the Federal Government. The same is 
true for proposals to access water on NFS lands. Access and occupancy 
of NFS land is authorized and managed through our permit processes. The 
proposed Groundwater Directive does not change that; it just makes it 
clearer how the Forest Service plans to carry out that responsibility 
so the agency can be more systematic and predictable for applicants, 
state and local agencies, other users of water, and the public.
    The proposed directive would provide transparent and consistent 
direction for evaluating proposed Forest Service activities affecting 
groundwater resources on NFS lands and for quantifying the nature and 
extent of large groundwater withdrawals. It would also clarify 
responsibilities for groundwater resource management at each level of 
the Forest Service.
    Through this proposed directive, the Forest Service would be better 
positioned to respond to changing conditions, such as drought, climate 
change, land use changes and needs for additional water supplies, in an 
informed manner, while sustaining the health and productivity of NFS 
lands and meeting new societal demands for resources in a responsible 
way. Our goal is improve the quality and consistency of our approach to 
understanding groundwater resources on National Forest System lands and 
to better incorporate consideration of those resources to inform agency 
decision-making. Establishing a consistent framework for evaluating 
groundwater resources will also help to ensure that the Forest 
Service's decisions are well informed and can withstand legal 
challenge.
    The proposed Groundwater Directive was published in the Federal 
Register on May 6, 2014. Because of the widespread interest in this 
proposal and our desire for active public input and feedback, the 
original comment period was extended from August 4, 2014 until October 
3, 2014, to allow more time to hear from states, Tribes, individuals, 
and groups.
    The agency looks forward to reviewing all the input received on 
this important proposal. Once we have evaluated the comments, we will 
determine the path forward and the content of a final directive. This 
concludes my testimony, and I would be happy to answer any questions.

    The Chairman. Thank you, Chief Tidwell. The chair would 
like to remind Members that they will be recognized for 
questioning in order of seniority for Members who are present 
at the start of the hearing, and after that, Members will be 
recognized in order of their arrival. And I appreciate Members' 
understanding. I am going to defer--I will take the final 
position for questioning. So at this point I am pleased to 
recognize the gentleman from Ohio, Mr. Gibbs, for 5 minutes.
    Mr. Gibbs. Thank you, Mr. Chairman. Thank you, Chief 
Tidwell, for coming in. My question, I won't get into the 
legality if the Forest Service has the legal authority under 
the Weeks Act, but my concern is I want to do a scenario. Say I 
am an adjacent landowner to Forest land property, and I am 
looking to develop a shale oil and gas production. And we have 
to go down through the water aquifer which the water aquifer 
runs through Forest land, okay? The water aquifer typically--
well, in my area of the country--maximum depth is 300--150 to 
300. The shale exploration in my area is 4,000 to 6,000, and 
I represent the only connection that the shale and gas 
production has to the water aquifer, which would be that 
conduit, that borehole. As long as we meet all the requirements 
that we are doing triple-casing, triple-cementing, seal that 
off so it is not the conduit for the rest of the saltwater and 
stuff to come up and pollute the aquifer or coming down from 
the surface. Now, if the Forest Service is concerned about 
groundwater, my concern is are they going to say, ``Well, you 
can't do oil and gas exploration because there is a 
possibility,''--even though in my opinion it is almost 100 
percent remote contaminating that groundwater--I mean the 
aquifer, if it is done right--``that aquifer flows into Forest 
land.'' You know, under this Directive we can stop you from 
doing that. And so can you expound on what I am trying to say 
here?
    Mr. Tidwell. Our Directive and our current authority--it 
has got to stop. What it does is to disclose the potential 
effects, and if there are opportunities to mitigate the impact 
of those effects, to be able to pursue what is available under 
our authorities and the current law if it is an operation that 
is off the National Forest. All we will ever do is comment, and 
if the state, whoever is the authorizing entity, have a process 
to receive comments, we will send in a comment. But we have no 
authority off Forest Service land.
    For the other question, if there isn't this 
interconnectivity, that is a good thing. There are definitely 
places where there is separation between what is occurring on 
the surface use from the groundwater, and we will document 
that.
    Mr. Gibbs. Well, I guess in the scenario I was laying out, 
the interconnectivity would be the aquifer flows underneath my 
property and the Forest land property. And so there is where 
you could--and so if the Forest Service has a Directive to 
say--let us just say in the future they have a policy, we are 
not going to allow--we are not going to do any mineral 
exploration or extraction on Forest land property and now the 
aquifer flows through the neighboring property, so we are going 
to fight you to stop that. That is I guess my concern. And I 
would say there isn't really interconnectivity other than that 
aquifer, and we are just going down through the aquifer and we 
are meeting all the requirements to protect that aquifer. I am 
just concerned about the expansion in the future, the Forest 
Service using this ability to expand.
    Now, I guess to follow through on that, what is the 
position of the Forest Service now on--let us say we are doing 
directional drilling on the shale, and they want to go under 
you guys, and the Forest Service obviously has to sign a lease 
to do that. What is the Forest Service's position on that now? 
Are they allowing exploration on those instances where the well 
is not on their property but signed leases to allow directional 
drilling under their property?
    Mr. Tidwell. If the area of the National Forest is leased, 
we work with the leaseholder to be able to mitigate the 
impacts. They can access the oil and gas resource and we have 
many examples throughout the country where we have oil and gas 
operations that have been in place for decades. We have also 
been able to mitigate impacts also on groundwater.
    A lot of this we have already been doing. What we find is 
we have this inconsistent approach where one Forest is dealing 
with it one way, another Forest is addressing it another way, 
and then we get challenged in court. We have had a couple cases 
out West where--these challenges were on mining proposals. The 
court said, ``Forest Service, you did not evaluate the effects 
of this proposal on groundwater.'' It didn't say you have to 
stop it, but the court was very clear. ``Forest Service, you 
need to evaluate what are going to be the impacts and to be 
able to disclose those.'' When it is a Forest Service decision, 
and we have an opportunity to mitigate the effects, that is 
what we want to work on because that is what this is about. It 
is not about allocation of the water. But if there is a chance 
for us to mitigate the impacts by working together and which we 
commonly do with many proponents already, that is what this is 
about. It helps to put us in a more defensible position so 
that--we are driving how our process works versus having 
individual courts direct us about how to deal with this.
    Mr. Gibbs. My time has expired, but I just want to--just a 
quick comment is I am just concerned about the private property 
rights adjacent to Forest lands and how that is all affected, 
and I essentially just want to see this rule coming out of the 
Army Corps of Engineers and the EPA and the jurisdictional 
expansion of the waters of the United States that is the 
fullness of my rationale here. Thank you, Chief.
    The Chairman. Thank you. The gentleman's time has expired. 
I now recognize Mr. Schrader for 5 minutes.
    Mr. Schrader. Thank you, Mr. Chairman. I appreciate the 
line of questioning that Representative Gibbs had, being 
thoughtful about how we approach this, and just because you are 
drilling through a certain aquifer, does that mean that it is 
going to be regulated or cause some problems, even if there is 
no contamination?
    Along those lines then, what is the thought of the Forest 
Service in terms of using good science to evaluate whether a 
groundwater resource is being impacted? I assume there will be 
testing, and if there is contamination, then and only then 
would there be a regulation issued. Are there certain agencies 
that tend to just issue blanket regulations on the off-chance 
that something might occur as opposed to dealing with data? 
What is your inclination, Chief?
    Mr. Tidwell. No. There would be no blanket regulation or 
anything like that. This is going to be on a case-by-case basis 
based on the science, and when there is a potential to impact 
the quality or quantity of groundwater, we need to evaluate 
that and be able to share that with the public. And if there 
are opportunities to mitigate it within our authorities, yes, 
we are going to always work to be able to pursue that. If it 
means a different way, a different location of the extraction 
for instance, we are going to work on that. If it is dealing 
with large mining operations to be able to look at ways to be 
able to mitigate that as much as we can within the 
authorities----
    Mr. Schrader. But that would be----
    Mr. Tidwell.--we will do that.
    Mr. Schrader. What you would do would be based on a problem 
you have identified as opposed to a potential one?
    Mr. Tidwell. Yes.
    Mr. Schrader. Okay.
    Mr. Tidwell. Once again, this proposal is about having a 
consistent approach to evaluate and monitor the effects.
    Mr. Schrader. So a little line of questioning here. The 
resources for the agency are limited, and while I think this is 
an extremely important area for us to discuss with you, there 
is another one that is definitely a problem and that is the 
wildfire issue, out West in particular, but we see it wherever 
lightning strikes. The wildfire issue is sucking the life out 
of the Forest Service budget. It is my understanding that up to 
70 percent of the Forest Service budget used to be for managing 
National Forest lands, letting contracts, good forest health, 
all sorts of projects that we used to be able to do. Now, my 
understanding, Chief, is it is down to only 30 percent.
    There is a bill out there, a bipartisan bill in both the 
Senate and the House. Senators Wyden and Crapo, myself, and 
Representative Simpson are trying to treat these horrific 
wildfires, the few, the one percent of the wildfires that are 
out of control and cataclysmic, as disasters, just like we do: 
the flooding issues, hurricane issues, all that and trying to 
restore your ability to keep your budget under control for the 
most part. It wouldn't have any added cost. It would impact the 
disaster budget just like any disaster would with no added cost 
according to the Congressional Budget Office.
    Don't you think it would be wise to prioritize the wildfire 
aspect of this budget to try and give you the resources you 
need? If you had to choose between the groundwater issue and 
the wildfire issue, which is more important right now for your 
budget, sir?
    Mr. Tidwell. Well, if I had the flexibility to choose, 
there is no question to resolve this issue around wildfire 
costs. Congressman, I cannot thank you enough for your 
leadership, to put forward the bipartisan legislation, and I 
extend that appreciation to the Chairman and almost every 
Member of this Subcommittee about your support to be able to 
solve that problem.
    There is just no question that conditions have changed on 
the lands over the last decade plus, and the cost of fires 
continue to go up. We will do whatever it takes to be able to 
suppress those where we need to, but at the same time it has 
had a really detrimental impact on the agency's ability to 
manage, and as the Chairman mentioned in his opening remarks, 
the need for us to do more to be able to restore the health of 
our Forests, the resiliency of our Forests. So there is no 
question that is a much more pressing issue.
    This Proposed Directive, our intent with this was to 
actually reduce some of the problems that we see coming: the 
potential for a court direction that, in some cases, could 
force us to do more than we really need to. That is what the 
purpose of this is, actually to take this issue off the table 
but at the same time allow us to really focus on what is really 
a much more important, pressing issue for us to be dealing 
with.
    Mr. Schrader. Very good. Thank you, and I yield back, Mr. 
Chairman.
    The Chairman. I thank the gentleman. I now recognize the 
gentleman from Arkansas, Mr. Crawford, for 5 minutes.
    Mr. Crawford. Thank you, Mr. Chairman, and Chief, I 
appreciate you being here today. USFS has claimed through the 
comment period the public has indicated that it expects the 
USFS to review potential impacts to groundwater resources. In 
your opinion, does review also mean manage?
    Mr. Tidwell. Once again, when we talk about manage, we are 
referring to doing the inventory and monitor the effects of our 
activities on groundwater. It is to be able to disclose those, 
and when we are authorizing a surface use, if there is 
something that can be done to mitigate the impact on 
groundwater from our decision, we want to be able to disclose 
what those impacts are, and then pursue ways to mitigate that. 
And when there are no effects--and that is just as important as 
anything--to be able to disclose that because we are often 
challenged, especially when it comes to some mining proposals 
and oil and gas proposals. We get challenged that effects of 
this proposal are going to have more effects than we are 
disclosing, and because we don't have a systematic approach, it 
puts us in a more difficult position to be able to say, ``Well, 
Your Honor, we have this approach and we have taken these steps 
to be able to evaluate. We have done inventory. We have been 
working with the states to understand the relationship here. 
And based on our outcome of this, we feel that this proposal 
has no effect.'' That is just as important or more so than in 
those cases where we have the opportunity to be able to 
mitigate the surface use in a way that has less of an impact on 
groundwater.
    Mr. Crawford. Okay. I am curious about the comment period. 
Where have the majority of the comments during the comment 
period come from or was it--is there a particular group or a 
particular region or association or anything that were 
particularly or especially represented?
    Mr. Tidwell. Well, we have received comments from states 
across the country. There has definitely been more from the 
western states than maybe the eastern states, and we have 
received comments from all sides of this issue, everything from 
that we should stop this, the states can handle this issue to 
you don't need to do anything to Forest Service as it carries 
out authorities, you need to place more requirements, et 
cetera, into this.
    We tried to be very clear that this is not a rule. It is 
not a regulation. It is our internal direction that we issue so 
that we take a consistent approach to evaluate this. There is 
no question on the comments that there are some things that we 
need to change in here to clarify the intent. I mean, that is 
one of the things that we have heard loud and clear. We have 
had some good comments. We have had good discussion, that we 
need to clarify it. And I go back to that one term manage that 
we recognize without any question. We need to clarify that 
because with some interpretation of the word manage, it means 
more than what we intended. That is definitely one of the first 
things that we are going to be working on.
    Mr. Crawford. Okay. Did you get any comments during the 
public comment period from any Federal agencies?
    Mr. Tidwell. I would have to go back to check on that with 
the group. We still have an open comment period, but I am not 
aware of any at this point. But I am sure there is probably 
going to be some.
    Mr. Crawford. Is it pretty commonplace for other Federal 
agencies to weigh in in public comment period?
    Mr. Tidwell. It often is, depending on what the issue is 
for us to receive comments.
    Mr. Crawford. Do they get greater consideration than a 
private citizen in your opinion?
    Mr. Tidwell. They get the same consideration of all of the 
comments that come in, whether it is from the states or from 
individuals. We look at all of them as a way to be able to move 
forward with this, to be able to clarify this, and at the same 
time to make sure that we have a direction that can be followed 
and understandable.
    Mr. Crawford. You mentioned just a second ago in responding 
that this was an internal Directive, and you said that we 
issued this. Can you define we? Can you be a little more 
specific?
    Mr. Tidwell. It is the U.S. Forest Service.
    Mr. Crawford. Okay. Is there an individual that directed 
this? Was it you or was it a collective effort or----
    Mr. Tidwell. This is mine. This is something we have 
actually been working on for quite a few years, recognizing 
that there was a need to have a consistent approach. It wasn't 
as pressing as it is today because in the past we hadn't had as 
much interest through litigation as we have seen recently. And 
so it is something we have been working on for several years to 
be able to put this forward.
    Mr. Crawford. Several meaning what, 3, 4, 5?
    Mr. Tidwell. I think some of our folks have probably been 
working on this, thinking about this for probably more like 6 
or 7 years.
    Mr. Crawford. Okay. All right. Thank you, Chief. I 
appreciate it. I yield back.
    The Chairman. I thank the gentleman for yielding back, and 
now we are going to recognize the gentlelady from Washington, 
Ms. DelBene, for 5 minutes.
    Ms. DelBene. Thank you, Mr. Chairman, and thank you, Chief, 
for being here with us today.
    I want to quickly go back to a little bit of the question 
that Congressman Schrader had brought up with respect to 
wildfires, and I just wanted to get a quick update from you 
kind of what the state is right now of wildfires on Federal 
lands and what you are seeing.
    Mr. Tidwell. Well, Congresswoman, just a few weeks ago, we 
were in a place where we had over 20,000 firefighters out, and 
we were close to being in a position where we would not have 
enough resources to respond to anymore new fires. Fortunately, 
we had a very favorable weather pattern move in, especially 
through your state. Through the Northwest, it has really 
moderated the fire season to the point where today we are in 
very good shape except the State of California where the fires 
in northern California just topped over 100,000 acres yesterday 
and some other Forest there in the Sierras. So the situation 
has moderated.
    A few weeks ago I sent out the direction for us once again 
to stop activity so that we could prepare to transfer funds 
from other program areas to be able to fund suppression. Now 
with this moderation, we are now looking at having to change 
that direction because we probably won't have to transfer 
anywhere near what we thought we would have to. At the same 
time, it has had an impact for a few weeks on our programs, and 
here I am now having to call up my Regional Foresters and say, 
``Okay, now with this favorable weather, what can we possibly 
get done over the next 2 weeks here, 3 weeks in September?''
    It has been very fortunate, but at the same time it has 
been a problematic fire season, especially as you know in your 
state with the hundreds of homes that have been lost there from 
those fires. It is just another pressing issue. Once again, I 
just appreciate everyone's support to be able to find a 
solution to this issue so that we would no longer be faced with 
this disruptive practice of having to stop operations to 
transfer money.
    Ms. DelBene. Yes. I have heard that there have been 
challenges with OMB and how fire funding is allocated. Has 
progress been made there?
    Mr. Tidwell. I think we are working very well with OMB. 
They understand the problem. They have been very supportive of 
finding a solution. It was in the President's Budget Request 
for this year, recognizing we needed to have a different 
approach to dealing with some of the large fires, and that is 
why the proposal--it is in the President's budget--merits or 
tracks very well with the introduced legislation to recognize 
that one to two percent of these fires need to be viewed as a 
natural disaster and that we should be able to access emergency 
funding to be able to pay for those, where the 98 to 99 percent 
of fires every year will still be paid for within our budget, 
just like it has been in the past. This would eliminate the 
need to transfer money. So OMB has been very supportive to be 
able to work with us and be able to talk to folks, to explain 
about how this would actually work with the recognition that 
this problem, over the years, has just gotten to the point that 
it has really impacted our ability to carry out our mission and 
be able to restore these lands and also provide for all the 
services that the public expects.
    Ms. DelBene. Let me move back to the groundwater issue, and 
I wondered, are Tribes and states treated equally in your 
Directive?
    Mr. Tidwell. We do an additional consultation with the 
Tribes on all of our proposals. We work very closely with the 
states. We coordinate, we sit down and work with them. We do 
the same thing with Tribes, but we also have an additional 
formal consultation that we get to work with, for our tribal 
entities.
    Ms. DelBene. Okay. Thank you very much for your feedback. I 
appreciate it. I yield back, Mr. Chairman.
    The Chairman. I thank the gentlelady for yielding back. I 
now recognize the gentlelady from South Dakota, Mrs. Noem, for 
5 minutes.
    Mrs. Noem. Thank you, Mr. Chairman. Hi, Chief Tidwell. 
Thank you so much for being here today, and I appreciate all 
the help that you have given me in South Dakota, with the Black 
Hills and dealing with the pine beetle epidemic that has gone 
on, and I know that you have a lot of wildfires and situations 
across the country you are dealing with.
    But this new Directive does have me really concerned, and I 
have a letter here in front of me from the South Dakota 
Department of Environment and Natural Resources, and I want to 
tell you some of the concerns that they have. They are strongly 
opposed to this new Directive. They cite lack of authority, at 
the Forest Service, as one of the reasons for this Directive. 
They believe it would expand the agency's responsibilities with 
no Congressional oversight or deference to state water laws.
    I want to read a few of the other concerns that they have 
in their letter. Redundancy that would come forward as the 
Forest Service taking part in these new actions in evaluating 
water quality. Also they believe that delays and burdens to the 
state permitting processes, that there is a lack of scientific 
basis for groundwater ecosystems, a lack of due process, and 
the one that probably concerns me the most is the lack of state 
input.
    One of the things that they brought out in their letter 
that does concern me quite a bit and that you actually talked 
about earlier in your testimony is that you came forward with 
this Directive or that this is a result of lawsuits that you 
faced in the past where you were found deficient in how you 
evaluated water quality throughout the process. I believe that 
from what I am interpreting the new Directive to say is that 
you believe that that means you need to mitigate the effects of 
what the activities are that you are taking. When you say 
mitigate and manage, that that means taking action on your part 
to deal with groundwater and groundwater quality, that you 
don't have the authority to do so. And throughout this process, 
there is no timeframe listed within the Directive that would 
constrain you to making that evaluation process go forward. 
There is nothing that says you are going to consult with any of 
the state agencies who have always been responsible for 
monitoring these water quality issues. You could potentially 
burden these state agencies by questioning every single water 
permit that is adjacent to or on Forest Service land.
    You could see why this would alarm everybody who has been 
in charge of this process in the past when you suddenly, 
through a Directive, claim jurisdiction over something that you 
have never been able to do before.
    How would you anticipate dealing with some of these 
concerns that some of these state agencies and people that live 
in these areas have raised?
    Mr. Tidwell. Congresswoman, first of all, one of the 
reasons we extended the comment period is to have additional 
time to be able to sit down, primarily with the states, to be 
able to hear their concerns directly and be able to discuss 
this. And as I have already stated, we recognize that based on 
the comments that we received on this Proposed Directive that 
there are some things we need to clarify, and we need to make 
it very clear especially when we talk about manage. It is 
talking about evaluating inventory of those effects. It has 
nothing to do with the allocation of water. And so we need to 
find ways to make that clear so that folks fully understand 
that.
    Of course we want to work with the states, and in almost 
all of our states, we work very closely with them. If the 
states are pulling this information together already and they 
can share it with us so that as we make our decision, we can 
include that in our analysis. That is very, very helpful. 
Ideally, this will actually make us a better partner with the 
states so that we will have a predictable process of the 
information that we need to be able to evaluate the effects, to 
be able to disclose those if there are effects or not, include 
that in our analysis, and then be able to go forward with 
implementing the project.
    When we talk about mitigating, it is to mitigate where we 
have the authority with the surface occupancy. It is not about 
the water. It is about the responsibility that if we are 
authorizing an activity and if there are some things that we 
can do to mitigate the effects, whether it is on affecting the 
quality of groundwater, it is not only something that we are 
required to do, it is something that I would think, from what 
we have heard, the public wants us to do that. But if we don't 
know, that is where we have been really challenged. In some 
situations we do not have a good process in place and we have 
not pulled the information together. We haven't reached out to 
the states to ask them because our Forests haven't had the 
direction to say, ``Okay, how are we supposed to deal with 
this?''
    We have been all over the board on this, and that is what 
has created the need to have this consistent approach. And yes, 
there are some additional court challenges that we are having 
to deal with, and that isn't the only reason for this. But it 
is definitely one of the benefits that will come out of this 
that will put us in a more defensible position.
    Mrs. Noem. I am out of time. Thank you.
    The Chairman. At this time I am pleased to recognize the 
gentlelady from New Hampshire for 5 minutes.
    Ms. Kuster. Thank you very much, Mr. Chairman, and thank 
you, Chief Tidwell, and all of the witnesses here today.
    Forestry is a very big deal in New Hampshire. It plays a 
key role in the economy of our north country, providing timber 
for builders, pulp for paper mills, and fuel to heat and power 
our homes and businesses. We in the Granite State know that a 
thriving, responsible timber industry is vital, not only to the 
economic health of our state but to the health and longevity of 
our beautiful forests. We are pretty fortunate that folks 
understand this balance. Though I frequently hear from the 
timber community about a number of challenges facing them, I 
have not heard from them about this Groundwater Directive.
    But what I do hear about, if I could take just a minute, is 
the reference that you made to fires in the West, and I want to 
be supportive of my colleagues. Actually, my brother lives in a 
very small town, Twisp, Washington, that they spent an entire 
month in fear that they would lose a beautiful home that he 
built and everything that his family has worked for.
    The challenge for us back East is when your budget is taken 
over by the wildfires, we have delays in the Forest Service's 
ability to effectively manage the National Forests and meet the 
timber harvest goals. I have been hearing from a number of my 
constituents in the timber and forestry sector about the 
problem in meeting our timber harvest goals because they can't 
get the Forester out to approve the cut.
    If you would comment on that, and if there is anything that 
we could do to be supportive so that you have sufficient 
funding for the fires and supporting our timber industry.
    Mr. Tidwell. Your point that the fires out West and the 
cost of dealing with the suppression does also affect our 
eastern Forests because when we need to stop operations, delay 
operations, postpone operations to be able to transfer money, 
it impacts everyone. You have seen it in your state, and often 
Congress has been great to repay the money, usually within the 
next 3 to 6 months. That is very helpful. But we lose out on 
that field season, and in the case like in your state right 
now, this is the prime field season for folks to be out there 
prepping the timber sale, doing the surveys that need to be 
done for this coming winter's work and also for next year.
    So when we slow down and have to stop operations, 
especially in this time of year, it really has the most effect 
on next year's work. And that is why we just need to find a 
solution to be able to stop this disruptive practice, and once 
again, I just can't thank everyone enough for the recognition 
and your support of this bipartisan, bicameral approach to be 
able to resolve this once and for all. Congress tried to 
resolve this once with the FLAME Act. This is not a new issue. 
That didn't quite work out as intended. We believe that this is 
a better proposal. It would actually solve this and allow us to 
be more proactive, and that is the other benefit of this is 
that it potentially would allow us to be able to invest more in 
the restoration, restoring our Forests, restoring the Forest 
health, and put us in a better position so that we reduce the 
threat to communities, reduce the threat to your brother. I was 
up in his community this summer. I talked to the folks up there 
about how difficult a year they were having. That is the 
benefit.
    This proposal would help all of us, help every state in the 
System. I just really appreciate how everybody has worked on 
this. I know it is not an easy issue, but it is definitely one 
that would be very helpful if we could get resolved.
    Ms. Kuster. Great. You can count on my support, and thank 
you. I yield back. Thank you, Mr. Chairman.
    The Chairman. I thank the gentlelady for yielding back. I 
now recognize the gentleman from Colorado, Mr. Tipton, for 5 
minutes.
    Mr. Tipton. Thank you, Mr. Chairman. Chief Tidwell, thank 
you for taking the time to be here. One of the concerns that we 
have, and I know you are well-aware of this. Out of the State 
of Colorado, we are a headwaters state. Most of our water 
obviously originates on Federal land. We have the complexity 
that that water coming off perhaps Forest Service land may flow 
through private land, on the BLM land, maybe even back onto 
Forest Service land, so it is a very complex issue.
    I know our state is always appreciated and in fact, demands 
that the State Law 1876 when we were incorporated, as with 
other western states, that water is a private property right. 
We have state law. We have a priority-based system that we 
expect to be respected. And the concern I would like to bring 
up, given the Groundwater Directive that we are seeing out of 
the Forest Service, when we couple this with the EPA waters of 
the United States, we are seeing effectively, in my opinion, 
the biggest water grab in American history in terms of our 
ability to be able to grow our communities, to be able to 
protect the interests of the State of Colorado. We have a 
pretty good track record of being able to manage that.
    What concerns me, Chief, and I would like you to be able to 
speak to is in the Forest Service Manual it states your 
employees claim water rights for water used by permitees, 
contractors, and others to carry out activities related to 
multiple-use objectives. This is in the manual. We now see the 
Forest Service groundwater management directive, and it seems 
to me that this literally doubles down on the policy to be able 
to obtain water rights in the name of the United States. But at 
this current time, this is massive groundwater management 
policy that you are trying to put forward.
    So given the scope of this overall policy, combined with 
the Directive to obtain water rights under applicable state law 
for groundwater and groundwater-dependent service of water 
needed by the Forest Service, doesn't this effectively give the 
regional Forest Service staff and the agency approval to go 
after any water right rising off of Forest Service lands that 
they deem necessary to carry out the broad objectives of the 
manual?
    Mr. Tidwell. This proposed internal Directive does not 
infer anything into water rights, does not infringe on the 
states' responsibility, their authority to allocate water. What 
this is about is to evaluate and monitor the effects of our 
actions on groundwater, and if there is an opportunity to 
mitigate adverse effects, then we have the responsibility to be 
able to pursue that with the surface occupancy where we do have 
the authority.
    When it comes to the multiple uses, for decades we have had 
a policy in place where the best assurance we could provide the 
public that multiple use would continue is that when water is 
required for that multiple-use activity, the water would be 
held for the public. There have been questions, and some of the 
policies that we have had in place going back to the mid-1980s 
and that we have worked with, like with the ski areas back in 
the 1980s to put a term and condition on their permits in place 
that work very well, had no adverse impact on any ski areas. In 
2004, I personally worked with National Ski Area Association to 
modify that clause so that it would work for everyone. We 
thought we had it done. Then a few years later, we find that 
once again, it wasn't in compliance with all state laws so we 
sat down again to be able to modify that. And now we are to a 
point where we are proposing a way to just keep the water tied 
to the use. It is to protect the public and it is----
    Mr. Tipton. But it does it kind of concern you, though, 
Chief, when we are pursuing these policies? There is a threat, 
and one thing you did not speak to is respect for the state 
laws. There is case history for this throughout the western 
United States. You weren't speaking to that, but when we are 
talking about ski area permits, there is nothing in your policy 
that protects actually the ski areas. You still speak in those 
broad, general terms in terms of some of the agreement that is 
coming out. And that is why we introduced and passed through 
the House with bipartisan support the Protecting Our Water 
Rights Act.
    Mr. Tidwell. Without any question, we respect the states' 
authority on water rights. That is one of the reasons that we 
sat down to change the clause that we had in those permits, and 
when you think about protecting the ski area, if water is 
necessary for a use, and without that water that use can't 
occur, that's a concern for the public. We authorize for any 
activity on National Forests for the benefit of the public. If 
the public can't benefit from that activity without having the 
water, we feel that the water should somehow be tied to the 
use, and if at all possible be available for future uses.
    So whether something happens with a ski area, whether it is 
no longer financially possible to operate, that is something we 
of course would sit down and work with them. But in cases where 
if there is a foreclosure, for instance, and the financial 
institution needs to dissolve all the assets, it eliminates the 
opportunity for the public to ever enjoy skiing on that area 
again.
    This is what we work very closely on is to find ways to 
work with our partners, our proponents of these activities, to 
find a way to provide the public assurances that when we permit 
an activity, that we want to be able to maintain that for as 
long as it is viably possible. That has been our approach on 
water.
    On the groundwater, again, it is not new authority. It is a 
consistent approach so that we are a more predictable partner 
with our states, that we can be a better partner with the 
states, work with them, and have the information to be able to 
answer the questions when we get challenged as to what is the 
effect of groundwater, and of the Forest Service, on your 
proposed activity? We have to be able to answer that. If not, 
especially based on the last couple of court cases, we are 
going to go back and have to redo the analysis.
    Mr. Tipton. But with respect, it is important to note that 
not one ski area has ever sold off its water. We had that 
conversation, and you agreed with us on that. And there is real 
concern from the farm and ranch community that we are now 
seeing the Federal Government not only trying to be able to 
control the water above but now below the ground, and this is 
going to have a real impact, I believe negatively, potentially 
on our communities. So I yield back.
    Mr. Tidwell. And Congressman, to my knowledge, ever since 
we have had the water clause in our ski area permits going back 
to the mid-1980s, I am not familiar of any situation where 
there has been a financial impact. And yes, I am not aware of 
any ski areas selling off their water. But I also don't know 
that because of that clause, maybe it prevented it. It would be 
interesting to look at some of the foreclosures that occurred, 
some of the bankruptcies that occurred over the years with ski 
areas to just see.
    The point is that we have worked very closely with the ski 
areas, and we will continue to work with them to be able to 
find a way that we can provide the assurances to the public 
that the use will continue versus being in a position that the 
day when the water is worth more, has more value, than the 
operation of the ski area, that the water would be sold off or 
used for a different purpose. Then the public loses out. And at 
the end of a 40 year term permit, if the decision is for the 
ski area not to go forward, well, then that is a good time to 
have that discussion.
    The Chairman. The gentleman's time has expired. I now 
recognize the gentleman from Minnesota, Mr. Nolan, for 5 
minutes.
    Mr. Nolan. Thank you, Chairman Thompson. Real quickly I 
wanted to commend you, Mr. Chairman, for calling this hearing 
and suggest that we should have more of these. You know, there 
is a great deal of concern about the long-eared bat, gypsy 
moths, emerald ash bores, pine beetles. It would be nice to 
hear more about the harvest on our Federal lands and the timber 
sales and the percentage that are being harvested, the biomass 
boiler rules that are under consideration. Others have brought 
up wildfire funding and programmatic environmental impact 
statements. There is such a wide range of things that we need 
to start working on and dealing with here.
    With that in mind, I would like to, Chief Tidwell, commend 
Brenda Halter who is your supervisor up in northeastern 
Minnesota. She does a wonderful job and is to be commended 
particularly for her attention to the mixed use of Federal 
lands including mining up in Minnesota's Iron Range. I want to 
commend you as well for being here and being so forthright in 
selecting the Christmas tree from the Chippewa National Forest. 
I intend to be out there to help cut that tree down and escort 
it to Washington. Having said that, I want you to know my wife 
and I have planted over 100,000 in our lifetime, so we don't 
apologize to anybody for cutting a beautiful one down and 
bringing it to our capitol.
    With regard to groundwater, my first and primary concern is 
whether or not this rule will in any way damage the Pierian 
Spring that exists along Highway 6 between the town of Outing 
and Remer, Minnesota. There I go, misspeaking again. The 
Pierian Spring was the fountain of knowledge, and we have been 
drinking from that one out in Minnesota for over 100 years now. 
It is right along the highway there, and if you haven't tasted 
of it, I suggest you do, and perhaps it would be a good idea 
for all the Members of Congress to go out and take a taste of 
that spring. It is the one they say where drink deep or taste 
not because there, shallow draughts can intoxicate the brain. 
What I meant to say was the artesian spring which is in that 
spot. I never drive by without taking an opportunity to take a 
sip out of it.
    But forgive me for going off on some tangents here. I just 
couldn't resist. I do have a couple questions with regard to 
groundwater, and I will just quickly throw them out there. One, 
does this in any way affect the mining operations that we find 
in the Upper Peninsula and the Iron Range of Minnesota? Is this 
Directive in any way related to the waters of the United States 
rule that was recently considered here? Does it treat livestock 
water in any way differently than snow ski area water? And are 
the Tribes in the states treated equally in this Directive? I 
know there are a whole bunch of questions. Take whichever one 
you want in the time we have and see if you can give us some 
answers here. Thank you.
    Mr. Tidwell. Well, I will start with the waters of the 
United States. You know, this is our internal Directive to 
carry out our authority. There is really no connection with the 
EPA, their proposed rule.
    On grazing, it doesn't make any changes from what we are 
currently doing. You know, permitees apply through the state 
for their water rights. If they have a well and they have to 
close that well, they follow through with the states' 
requirements on that.
    On mining, there is no additional regulations or anything 
put into place. It just provides a more consistent approach. In 
your state, there are a couple of examples on the PolyMet 
proposal. We are working together with the State of Minnesota, 
D&R, and others to be able to do the analysis on the effects of 
groundwater from that proposal so that the state has the 
information to make their decision and we have the information 
to make our decision. On another proposal in your state with 
Twin Meadows, that proponent, even though it is very early in 
the stage, they recognize the concern around this. We have 
authorized the drilling of some deep wells in the area that 
they are proposing to mine so that they can collect the 
information to be able to understand how their project could 
potentially affect groundwater. And so there is a case where 
two proponents on two different proposals recognize that this 
is a question that needs to be addressed, and either the state 
needs the information or in this case, the Forest Service. So 
by working together, this is the best scenario so that we both 
have it. We have the same information. We can both use the same 
information to make our decisions.
    Mr. Nolan. Thank you, Mr. Chairman. Thank you, Chief 
Tidwell, for the great job you are doing over there at Forest 
Service.
    The Chairman. I thank the gentleman, and I now am pleased 
to recognize the gentleman from Michigan, Mr. Benishek, for 5 
minutes.
    Mr. Benishek. Thank you, Mr. Chairman. Thank you, Chief 
Tidwell, for being here this morning. I have a couple of issues 
that I want brought up, and frankly, my concern is that you are 
having a tough job doing the job you have already, and to me 
this is adding more to your work list. The procedure works now 
as I understand it, the Forest Service works with the state as 
an interested party and when the state develops its groundwater 
regulations and stuff.
    So I don't see why this internal Directive is needed since 
you already have input. And a couple of things had come to me 
in your testimony. You cited the Weeks Act as giving the Forest 
Service authority to mitigate floods and conserve water and 
surface and subsurface moisture. So what are the examples of 
mitigate? I mean, what does that mean? How is that not 
happening now with your conversations within the various 
states?
    Mr. Tidwell. Well, an example of mitigation, if there is a 
surface occupancy of the National Forest that is being 
proposed, and it is going to have some effect on the quality of 
groundwater, if there are things that we can put into place 
whether----
    Mr. Benishek. Give me an example. Give me some examples by 
what you mean, mitigate.
    Mr. Tidwell. Okay. As far as where the disturbed area is 
going to be, if it is going to be on top of a spring versus 
moving it away from that spring to put it over in another place 
so that that spring----
    Mr. Benishek. That would not be addressed by the procedures 
that are in place now?
    Mr. Tidwell. Exactly. The only difference here is to have a 
consistent approach.
    Mr. Benishek. I don't see that people can build on top of a 
spring right now.
    Mr. Tidwell. That is one example. Another example is that--
referring to----
    Mr. Benishek. That is not an example that works, though, 
Chief.
    Mr. Tidwell. Okay. So with the mining proposal, the 
proposals in Minnesota, we are working with the proponents in 
the state to evaluate the impacts of groundwater. We had a 
couple situations out West in two other states where we had a 
mining proposal, and we didn't do that. The court then directed 
us and said, ``No, Forest Service. Stop. Do not authorize that. 
Go back and do the analysis.''
    Mr. Benishek. But don't you usually participate with the 
states? That is more of a--to me, that is more of an oversight 
area for you rather changing the way you do things. It is just 
that you didn't do what should have been done already.
    Mr. Tidwell. But our employees benefit from having 
direction in their manual about what is their responsibility--
how do they do this--so that we have a consistent approach.
    Mr. Benishek. I understand that, Mr. Tidwell.
    Mr. Tidwell. And that is----
    Mr. Benishek. What I am----
    Mr. Tidwell.--the difference----
    Mr. Benishek.--concerned about----
    Mr. Tidwell.--we are trying to make.
    Mr. Benishek.--is the fact that, when we give the Federal 
Government more authority to do things, then they tend to 
override the local concerns because we are seeing this in the 
Natural Resources Committee with this Endangered Species Act. 
Several states out West put together a plan in conjunction with 
the Fish and Wildlife Service, worked with them for a long time 
to develop a plan for this prairie chicken. And then all of a 
sudden, the Fish and Wildlife, after approving the plan and all 
that, changed their minds at the last minute and disapproved 
all that. And I just don't like giving more Federal authority. 
I mean, you are already in the process of working with the 
states. Why isn't that good enough?
    Mr. Tidwell. Because we don't do it consistently across 
the----
    Mr. Benishek. That is not a problem with the law. That is a 
problem with your agency. And I am saying that this is a 
problem with taking on more jobs.
    Mr. Tidwell. Well, that is why this is an internal 
directive to the agency--to have a systematic, consistent 
approach so that we are better partners with the states so that 
we do a better job to cooperate with the states based on the 
examples I have given and then also in places where we have not 
done this.
    And so it is difficult with everything that we have on our 
plates, for our land managers to be able to understand, okay, 
when it comes to groundwater, what do we need to do?
    Mr. Benishek. Let me just ask one more question. In your 
written testimony it says through comments on specific proposed 
Forest Service decisions and through other avenues the public 
has increasingly indicated it expects the Forest Service to 
review and address the potential impacts on groundwater. What 
other avenues are you talking about?
    Mr. Tidwell. For instance, if there is a proposal that is 
adjacent to a National Forest and it has the potential to maybe 
impact groundwater on National Forests, the opportunity we have 
to be able to submit a comment to that entity who is regulating 
that authority.
    Mr. Benishek. It says comment through other avenues the 
public has increasingly indicated. So what other avenues does 
the public have to comment on your decisions besides the 
comment period we are talking about?
    Mr. Tidwell. So on the Proposed Directive, when we actually 
would then go to use this and evaluate it on a project, the 
public also has the opportunity to comment on that.
    Mr. Benishek. Well, it doesn't seem like you are answering 
the question, but I am out of time. Thank you.
    The Chairman. The gentleman yields back. I now recognize 
the Ranking Member from Minnesota, Mr. Walz, for 5 minutes.
    Mr. Walz. Well, I thank the Chairman, and thank you for 
indulging me to be at a markup on VA. Chief, thank you for 
being here. I appreciate your work and your agency's work, and 
I think you are hearing it here. We know you have a lot on your 
plate. We know you have to multi-task on a lot of things.
    Something I would say, though, is we are the Subcommittee 
on Conservation, Energy, and Forestry. We have not held a 
hearing on wildfires since 2010. During that time, 25.7 million 
acres have burned, and over 200,000 incidents have burned. I 
might mention to the gentleman in Colorado, the Hayman and 
Missionary Ridge fires together cost $380 million for 
suppression and direct cost to those. Those are real things 
that really happened, that are happening now, and I do not 
disregard the importance of every issue we talk about here. But 
we must prioritize. We must move things forward. When I hear 
you say and I hear Secretary Vilsack come to me 9 weeks ago and 
say you have to do something because it is impacting our budget 
across the board and how it impacts southern Minnesota. You 
just told us that a more predictable budgeting measure is the 
weather for you, when a weather turned a favorable direction. 
That was more predictable than the actual budget.
    I would just like to ask, let us have a hearing on 
forestry, too. I think we could probably all agree. We can do 
this one, we can do that, we can address some of these issues. 
The questions are valid. There are concerns that are being 
expressed. I will have to say, I have not heard groundwater 
concerns from my people, but it doesn't mean they are not 
important. And I understand water issues are regional. While an 
issue in California, I had an abundance of water in my 
district. But as a nation, these issues can't be done, and I 
would also, as someone who grew up in western Nebraska knows, 
that as Colorado's water rights goes, so goes Nebraska's water 
rights. And they end up in court. Kansas just received a lot of 
money a while back because of that from the State of Colorado.
    These are issues that must be discussed federally. They 
must include inter-agency collaboration. They must include the 
ability of us to be able to express this. But I am deeply 
concerned that not enough foresight was given. Secretaries and 
chiefs of the Forest Service came to us over 2\1/2\ months ago 
and said let us do something different on wildfires and get it 
going, and we have sat silent. That is unacceptable, and I want 
you and your agency to know, it is not for the lack of you 
telling us, that we have heard you on it.
    My question to you is, Chief, can you help me a little more 
specifically? This helps me when I go home and talk to people. 
Secretary Vilsack was able to help me out and understand. On 
these budgeting shifts, tell me what it means. If the wildfire 
season had not shrunk to these eight major fires you are 
fighting now, if we had had 16 to 20, how would that have 
impacted other operations? What would that look like at 
Superior National Forest or Chippewa or things like that?
    Mr. Tidwell. On your Forests, we would have had to stop 
many of the operations during the month of September. For 
instance, folks that are out doing surveys, preparing for 
projects, prepping for timber sales, that would actually be 
implemented in the winter, that work would stop. That is what 
we had to do in previous years. This year looked like we were 
headed there again, and now with the favorable weather, we are 
doing almost an about-face. I was talking to our folks 
yesterday that now it looks like we are going to be okay or 
just have a minor transfer we are going to have to do, and so 
what can we get done--
    Mr. Walz. Did they stop? Did they start pulling those 
things back? Because those things can't happen in a Minnesota 
winter if----
    Mr. Tidwell. Yes----
    Mr. Walz.--work was put off.
    Mr. Tidwell.--they did. I sent out the direction to be 
prepared with a list of steps that we needed to take to be able 
to stop or we had the option to defer, and for the most part, 
we deferred these projects. But we lose that field season, and 
then thus, we are not able to get the work done this coming 
winter and especially in your state where we are able to do a 
lot of the special timber harvesting in winter.
    Mr. Walz. Could you help us understand, and I think this is 
a fair critique of this, of saying, ``Okay, we were going to 
budget and we gave you the money, and then you didn't use it.'' 
I think there is legitimate fear of some people saying would 
that money have come back? What does it mean when you are 
talking about and Secretary Vilsack is talking about emergency 
funding, tell us how that can protect taxpayer dollars while 
making budgeting more predictable for you.
    Mr. Tidwell. If we don't use the funding for fire 
suppression, it is still available. It is available for the 
Appropriations Committee to appropriate it the following year. 
But we do not spend it. We cannot spend it on anything else. So 
if we have it, then it allows us to be able to carry out the 
direction of Congress when they pass a budget, and that is the 
direction we take very seriously. We are not able to carry that 
out the last 6 weeks or so of the year because we have had to 
transfer money. It just creates this disruption. It doesn't 
cost anything more. It is just as I have mentioned, Congress 
has been very responsive to pay the money back 3 to 6 months 
later. And so we just lose that field season, we postpone 
projects, and we can't ever make up that time because can 
only--
    Mr. Walz. It makes--
    Mr. Tidwell.--get so much work done in a 12 month period.
    Mr. Walz. So is it safe to say it makes you much more 
inefficient?
    Mr. Tidwell. Yes.
    Mr. Walz. Okay. I yield back.
    The Chairman. I thank the Ranking Member for his questions 
and for yielding back, and now I am pleased to recognize the 
gentleman from Alabama, Mr. Rogers, for 5 minutes.
    Mr. Rogers. Thank you, Mr. Chairman. In your testimony you 
referenced major aquifers. What is the difference between a 
major aquifer and a minor aquifer and how does the Proposed 
Directive affect both?
    Mr. Tidwell. Well, when we talk about a major aquifer, 
these are more of the large collections of water that usually 
are much deeper but not always much deeper versus more of a 
minor aquifer. Often, our surface activities are probably going 
to have a greater potential impact on more of these minor 
aquifers that are closer to the surface than maybe a deep 
aquifer, but at the same time, those are the things that we 
have to be able to understand and be able to disclose. Often we 
get challenged that, ``Okay, your activity is going to affect 
the quality of the groundwater, and I get my drinking water out 
of that.'' It is essential for us to be able to show that, 
``No, what we are proposing here is not going to have any 
affect or, if it is, we disclose that.'' And if there is an 
opportunity to be able to work within our authorities to be 
able to mitigate the effects, then we need to be able to do 
that. But much of this issue is about not knowing, and so when 
we can disclose what the effects are or that there are no 
effects, it puts us in a better position to be able to 
implement the action, and it is actually reassurance to the 
public. And yes, we want to work closely with the states, and 
in many cases, that is exactly what happens so that we do this 
together. This is information the states need to be able to 
make their decisions, and it is the information that we need to 
be able to make ours.
    Mr. Rogers. Let me ask this. Under the Directive, could the 
Forest Service reduce access to a water right if a proposed 
activity might adversely affect the National Forest Service 
groundwater resources?
    Mr. Tidwell. It could change the access point if there was 
a need to mitigate the impact, and by doing that, by changing 
the access point, that could happen. That happens now.
    Mr. Rogers. Okay, so there is nothing different then?
    Mr. Tidwell. There is nothing different except this would 
be a consistent approach so that the proponent in your state is 
going to be treated the same way the proponent would be in 
Colorado or in Pennsylvania. That is the difference that we are 
talking about.
    Mr. Rogers. The Forest Service has claimed through the 
comment period that the public has indicated it expects the 
Forest Service to review potential impacts to the groundwater 
services. In your opinion, does the word review also mean to 
manage?
    Mr. Tidwell. Both terms mean to evaluate the effects and in 
some cases, to monitor the activity. When we talk about manage, 
we talk about----
    Mr. Rogers. Well, you all used the word review. I used the 
word manage. So I am wondering if you see them as the same 
thing.
    Mr. Tidwell. What it comes down to is inventory, evaluate, 
and monitor, and that is one of the points that I mentioned 
earlier that we use the term manage multiple places in the 
draft Directive. We received many comments on that, but that is 
not a clear term. It means different things, and it can be. 
That is one of the things we definitely are going to work with 
the states to be able to be very specific on what that means so 
that folks don't think that it is managing, like when it comes 
to allocation of water. That is not what this is about.
    Mr. Rogers. Where did the majority of the comments during 
the comment period come from? Were they specific regions of the 
country, associations, or what?
    Mr. Tidwell. Probably the majority of them are from the 
West. We have had a lot of comments from states, comments from 
user groups, some comments from environmental groups, 
conservation groups. But we have had a lot of comments from our 
states. It is one of the reasons why we wanted to extend the 
comment period, so we would have additional time to actually 
sit down and say, ``Okay, we received your initial comment. Now 
we want to talk about it.'' So we make sure we understand and 
see--so we know what we need to do to clarify this. The intent 
of this is to be a better partner with our states. This is 
something we need to work very closely together on, and we want 
to make sure whatever it takes that we clarify that this does 
not infringe on the states' responsibility, the states' 
authorities in any way.
    Mr. Rogers. Thank you very much. My time has expired. Thank 
you, Mr. Chairman.
    The Chairman. I thank the gentleman. Chief, I take the last 
5 minutes here, so I really appreciate you being here and your 
candid responses. I think you are a great partner to work with 
for the health of the United States Forests and what that means 
for Forest health and quite frankly, our rural communities in 
particular. So thank you for that.
    And normally, we are on the same page. We are not on this 
one. You know, your goal--I think your goal is admirable, but 
it is not the Forest Service's role, my perspective. I think 
the Forest Service has interest. There is no doubt about it, 
but you clearly do not have authority. The primary authority is 
the states, and that is based on 100 years of legislation, 
including the Clean Water Act that establishes the federalism 
model of which the states' authority for water and the Weeks 
Act which clearly talks about navigable waterways, that makes 
sure the regulation flow, nothing about groundwater and new 
case law that has been as far as the Supreme Court on this 
issue.
    And so I really see a very weak case which means you go 
forward with this, you are going to get peppered with what you 
always get peppered with which is more lawsuits which is going 
to drain more money out of management of our Forests in a 
healthy way. I really encourage you to reconsider as these 
final comments come in because I think it is going to make your 
job tougher and almost where this will go from a litigation 
perspective. You know, the case law defines and upholds the 
states' sovereignty, and I would argue that the separation of 
water of states in terms of surface and groundwater is an 
important part of the checks and balances, especially in 
western states where the Forest Service, ``owns so much 
surface''. This is actually one of the few checks and balances 
the western states have in terms of having the groundwater 
authority which forces the Forest Service--we don't always get 
great chiefs like you, but you know, it forces the Forest 
Service to be a collaborative partner with our states. I think 
this is one of those checks and balances that does that.
    Now, my first question is straightforward. I am pretty sure 
I know how you are going to answer this, but I can't help but 
ask because it looks like a taking. Is this not a taking, when 
instead the Forest Service should be working on improving the 
collaboration with the authority that has primacy on this 
issue, which is the states?
    Mr. Tidwell. No, it is not. It, once again, does not 
infringe on the states' authority when it comes to allocation 
of water and water rights in any way.
    What this is about is that when we are considering an 
activity on the National Forest, if it has the potential to 
affect groundwater, we need to evaluate what those effects are, 
disclose that to the public so that we understand. For 
instance, if there is a proposal that would be a large 
extraction, and based on the analysis that it will de-water all 
these springs that are higher up in the watershed, de-water 
this stream, people that have water rights up there are going 
to be impacted.
    It may be that we have no discretion on the activity, say 
if it is for mining, for instance, we are somewhat limited 
there. But we need to be able to disclose that. This is the 
information that the states want. I think this is the 
information the public wants.
    The Chairman. Well, you have been peeking at my questions, 
Chief. That was perfect because I agree that somebody needs to 
be concerned with that, but the primacy needs to come from the 
authority that has responsibility over the groundwater.
    So my question has been--because you are speculating. You 
gave me a what-if. We don't make policy based on speculation 
because we could sit here and I could get a doomsday proposal 
from every Member of what could go wrong. We need to deal with 
data and science.
    So my question for you is what data demonstrates that there 
has been significant harm, and that is the term that is 
important, significant. There are anecdotal things that may 
occur from time to time, but I mean really consistent and 
significant harm to warrant this Directive. Have the states 
that have authority and responsibility for groundwater clearly, 
by law--and you have acknowledged that and I appreciate it. I 
mean, we are just talking about how do we work together, and I 
just want to put the states at the point of the spear versus 
the Forest Service because legally, that is the way it needs to 
be. But there needs to be collaboration between the two. Have 
the states that have authority and responsibility for 
groundwater filed complaints or lawsuits regarding 
contamination of groundwater from Forest Service surface use? 
Because that is what this comes down to. Your whole argument is 
based about ``what if.''
    Mr. Tidwell. I am not aware of anywhere a state has filed a 
lawsuit. I am aware of where other parties have filed lawsuits 
when we did----
    The Chairman. Well, we all know about the third-party 
environmental organizations----
    Mr. Tidwell. Correct.
    The Chairman.--that makes your life difficult and make our 
Forests unhealthy, and I would argue the negative consequences 
that we have seen is a result of--and this is just my opinion. 
I am not speaking for other Members. The wildfires, because of 
timbering reduction, limitations we have seen because of 
various regulatory--waters of the United States is going to do 
that. Endangered Species Act has certainly done that in the 
western states. You know, those are all good laws but have been 
improperly administered over years in a bipartisan, negative 
way, in both Administrations and both parties.
    And so it is interesting you tell me you are not aware of 
any. And please go back and check with the staff because I know 
what it is like. Most of my good information comes from my 
staff. So if your staff have records of lawsuits that have been 
filed or complaints from states, then it would be good to know 
about because if there is none, then there is not a need for 
this Directive. I understand that you have stated that mostly 
through court challenges--threats. Let us call it what it is, 
threats to the Forest Service. Then God bless you for living 
and working with those that you have to deal with. You talked 
about what I call threats. You have stated that the variability 
among the Forests and the lack of a systematic approach has 
been what has been challenged.
    Now, I would argue, and my question for you, is it not 
appropriate and defensible given the clear law, the case law, 
the legislative record, the legal status of state authority 
over non-navigable and groundwater which has responsibility of 
the states. If that is done by a state authority, unfortunately 
that is the world you work in. You are going to have to be 
flexible and not have a cookie-cutter approach which you are 
trying to do with this Directive. You are going to have to be 
able to come to the table and have a candid conversation. Now, 
you can do that in an efficient way, maybe working with 
coalitions of states obviously, and I think there is a--we are 
going to hear one of our witnesses who is from Western States 
Water Council that represents multiple states. But that is my 
question.
    And my next question is the fact that we don't have a 
systematic approach, isn't that appropriate and defensible 
given the legal status of state authority over non-navigable 
and groundwater?
    Mr. Tidwell. Mr. Chairman, the courts have disagreed with 
that, and the point that we have never had a state sue us----
    The Chairman. Well, which point, though? Every court case 
including the Supreme Court I see clearly reinforces states' 
rights and states' authorities when it comes to non-navigable 
and groundwater.
    Mr. Tidwell. Yes. I would be glad to provide the lawsuits 
that we have received when we didn't----
    The Chairman. Well, I know the lawsuits. The threats. And 
those are threats.
    Mr. Tidwell. Well--yes.
    The Chairman. Those are not legal findings.
    Mr. Tidwell. Well, but we get sued and the project gets 
stopped----
    The Chairman. I understand. It happens to the world--
    Mr. Tidwell.--because we haven't evaluated the----
    The Chairman.--and it frustrates me--
    Mr. Tidwell.--impact.
    The Chairman.--as much as it does you. But that does not 
dictate law. Threats should not dictate good public policy. I 
know the world you work in, and I am--I respect you and I know 
how tough your job is. But we are lawmakers, and we take our 
authority under Article I of the Constitution very seriously of 
writing laws and enacting laws, and we really--the threats of 
lawsuit should not dictate public policy.
    Mr. Tidwell. In this case we work very closely with the 
states. I will check to see if a state has ever filed a suit 
about--
    The Chairman. I appreciate it.
    Mr. Tidwell.--our activities. But I would be surprised 
because we work together on that, and for most of our projects, 
the state has a decision they are making, like on a mining 
proposal. They have a decision to make. We have a decision to 
make. We often make those decisions together, but in these last 
couple cases, it has been the Forest Service that has been 
taken to court because the judge found that we were not 
following the law, carrying out our responsibility to be able 
to evaluate----
    The Chairman. And I would argue--
    Mr. Tidwell.--the impact from----
    The Chairman.--that that judge is completely out of order 
in terms of the law.
    Mr. Tidwell. Well----
    The Chairman. All the arguments you have provided, when you 
read those--and I read your testimony. When you look at the 
wording there, it is very clear. It talks about the regulation 
of the flow of navigable waters, and I appreciate the difficult 
situation that you are in. You know, there is no doubt about 
it.
    A specific question, I always have to answer back home. The 
question was I have heard from some of my constituents who, 
obviously produce oil and gas, and I appreciate that you have 
talked about that, how it wouldn't interfere. I am concerned 
that it actually opens up more nuisance lawsuits which I will 
get to. But in the Allegheny National Forest, the fears that 
this Directive appears to be another effort by the Forest 
Service to manage access to private mineral estates. Can you 
assure me and this Subcommittee that the Forest Service has no 
intention to circumvent the clear message and the rulings of 
the Minard Run decision or use this Directive in any way to 
control access to private oil, gas, and mineral estates? As you 
know, in the Allegheny where, I don't know where we are at, 90 
percent subsurface rights are all privately held. That is the 
way my predecessors determined to do that or deny access of the 
rightful owners.
    Mr. Tidwell. We will continue of course to follow the 
Minard Run decision, just like we follow all court direction. 
But an example there on Allegheny is that the Forest employees 
are working very well with the oil and gas proponents about 
cooperating together about when they are looking at a need to 
access in-groundwater, about where the location is of where 
they should put the well? If there is an opportunity to be able 
to mitigate some potential impacts of that through the 
location, we are working cooperatively like that.
    We feel that is the approach that we are taking in your 
state on the Allegheny National Forest. Once again, there are a 
lot of places where this is working well. And I want to make 
sure as we move forward that this is a very clear Directive and 
it is something that the states can understand and be able to 
see that we can be a more predictable partner with them because 
often on these decisions, especially the ones where we get 
challenged on, we are often both making a decision. The state 
has their decision to make, we have ours. And so we use the 
same information. And yes, there are going to be cases where we 
are going to have to maybe do more than what the state feels 
they need to do but recognizing that if we don't, we are not 
going to be able to move forward with the project.
    The Chairman. Chief, I think the unintended consequence 
which we are going to see is you have a System that requires a 
lot of work because you are doing it Forest by Forest and state 
by state right now. I think you are creating more work and more 
harm, and you are going to ruin those relationships because you 
are going to try to create--you talked about a systematic 
approach. That is a cookie cutter from Washington and impose 
that on different states and different Forests that have 
different geological formations and different water subsurface 
groundwater issues. And I just think bad things are going to 
happen.
    Isn't the approach better what you do currently--and I want 
to congratulate you on that--with the State of Montana? Montana 
and the Forest Service have the compact. Isn't that a better 
approach of increasing communications, collaboration, of really 
looking at it so that the state, that authority can let you 
know if your surface activity is negatively impairing the 
groundwater, which it doesn't seem like there is any cases for 
that. But it just seems like a good model.
    Mr. Tidwell. The case in Montana is a good model. I think 
the MOU we have in Colorado is a good model. It lays out our 
responsibilities and how we do this. Ideally, we probably need 
something like an MOU with every state to be able to clarify 
how we are going to be working together. But the challenge that 
we have here is that in some states, Montana, places like 
Colorado, Minnesota. I can go through a long list where we are 
doing what we need to do. But then there are other states, and 
I will use the last couple court cases in Idaho and Washington, 
where we didn't. And so the proponent is the one that gets 
impacted by this, and we can have the discussion that maybe the 
court shouldn't be involved as much as they are, but they are.
    This is an opportunity for us to be in a better position. 
The thing that I worry about is having someone else direct us 
to what we need to do versus being able to sit down. And your 
point about we need to look at this state by state because in 
certain states, water issues are different. The aquifers are 
different. The geology is very different. That is what we work 
out with the state. But our employees need to have the basic 
understanding that yes, you need to evaluate, monitor what 
affects the groundwater. And right now, we don't have anything. 
Even if they have done what they feel is an adequate job, the 
court says, ``Well, we don't think it is adequate,'' versus if 
we have a consistent, systematic approach that has been 
publicly vetted, had the input from most of the states in it, 
it is going to put us in a better position, better partner with 
the states and also be in a more defensible position.
    The intent of this really to be a better partner and make 
this less contentious.
    The Chairman. Yes.
    Mr. Tidwell. That is our intent, Mr. Chairman.
    The Chairman. Well--and----
    Mr. Tidwell. And I know we have a lot of work to do on it.
    The Chairman. I know, and Chief, I appreciate your time and 
I appreciate your leadership on this area. I guess I am not as 
optimistic that these groups that are bringing these lawsuits 
are going to be satisfied with what you are doing when it is 
done. I think they are just going to find other targets related 
to this.
    Thank you so much for taking the time out of what I know is 
a very busy schedule. I know the full--speaking on behalf of 
the entire Committee, we really appreciate your leadership and 
appreciate you being here, how accessible you are to each of us 
individually and the Committee as a whole.
    Mr. Tidwell. Well, Mr. Chairman, you and the Subcommittee, 
thank you for having the opportunity to come up here and to 
have the time to really have the dialogue and the discussion. I 
really appreciate it. I appreciate you giving us the time to 
have this today. Thank you.
    The Chairman. My pleasure. Thank you very much.
    At this point, I would like to welcome our second panel of 
witnesses to the table. Mr. Tony Willardson, Executive Director 
of the Western States Water Council from Murray, Utah. Mr. 
Scott Verhines?
    Mr. Verhines. Verhines.
    The Chairman. Verhines. I only had two choices. I picked 
the wrong one. Sorry. New Mexico State Engineer from Santa Fe, 
New Mexico, and for purposes of the third introduction, I am 
pleased to yield to the gentleman from Colorado.
    Mr. Tipton. Thank you, Mr. Chairman, and it is truly a 
pleasure of mine to have the privilege to be able to introduce 
a friend and also a constituent out of my district, Don 
Shawcroft. He is representing our farm and ranch community in 
this panel. He is the owner of John B. Shawcroft Ranch in the 
San Luis Valley in South Central Colorado. In addition to 
running his cattle operation, Mr. Shawcroft serves as President 
for the Colorado Farm Bureau.
    In his capacity of the Colorado Farm Bureau President, Mr. 
Shawcroft also serves on the Board of Directors of the Southern 
Farm Bureau Casualty Insurance Company as well as on that of 
the Farm Bureau Bank and the American Farm Bureau Insurance 
Services and the American Ag Insurance Company. So he is a busy 
guy.
    So Mr. Shawcroft, Don, it is a pleasure to have you here.
    Mr. Shawcroft. Thank you. I appreciate that introduction.
    The Chairman. Once again, thank you to all the witnesses 
for being here. We are looking forward to your testimony. Just 
know that we have your written testimony as a part of the 
record that all Members have received. And so we will proceed 
with 5 minutes of verbal testimony. I am pleased to recognize, 
once again, Mr. Willardson for 5 minutes.

STATEMENT OF ANTHONY G. WILLARDSON, EXECUTIVE DIRECTOR, WESTERN 
                STATES WATER COUNCIL, MURRAY, UT

    Mr. Willardson. Thank you, Mr. Chairman, and Members of the 
Subcommittee for the opportunity to testify. The Council is a 
nonpartisan government entity that advises western governors on 
water policy issues, and our members are appointed by the 
governors, Mr. Verhines being a representative of Governor 
Susana Martinez. My remarks are based on the Council's 
positions which are attached to my testimony, as well as a 
letter from Governor John Hickenlooper who was then chair of 
the Western Governors' Association to Secretary Vilsack 
opposing a number of questions regarding the Directive. The 
governors observed that the states are the exclusive authority 
for allocating, protecting, and developing their groundwater 
resources and also recognize, given their initial review, that 
the Directive leads them to believe that this measure could 
have significant implications for our states and our 
groundwater resources.
    Secretary Vilsack recently responded to that letter and 
offered an open invitation to meet with the governors, and we 
also look forward to working with the Forest Service to be more 
fully engaged in a dialogue, a dialogue that has not yet taken 
place.
    I would also point out that appended to my testimony a 
comment submitted by seven of our states which included South 
Dakota, Washington, and others that are represented here on the 
Committee.
    The Forest Service should have consulted with us, and we 
actually believe that the Executive Order 13132 requires that 
consultation on matters that respect federalism. It has also 
been pointed out earlier that they did consult with the Tribes, 
but there was no process directly to consult with the states, 
and we believe that that needs to be done.
    You have already mentioned and we have talked about the 
Supreme Court decisions and also the Acts of Congress including 
the Desert Land Act of 1877 that recognizes the states' 
exclusive authority over groundwater. The Council is concerned 
that the Forest Service could put conditions on the exercise of 
private property rights which many water rights are on in the 
West. And we agree that they have no authority to limit how we 
might allocate those resources, but they can have an impact on 
how those are actually exercised. And there has been little 
information presented on what is the problem? What is it that 
the Forest Service is trying to address? I point out that 
actually we ran some information and found in Oregon there are 
some 230 groundwater wells that pump more than 35 gallons per 
minute. Is that an issue in Oregon? We don't know.
    But one of the other concerns is that given the presumptive 
connection between surface and groundwater that is put in the 
Directive, in Oregon there are over 18,000 surface water 
rights. I think it would be helpful to know those numbers for 
many of the other states.
    In addition, there are restrictions or it talks about 
possible restrictions on injection wells. We use those for 
groundwater recharge on conservation which could affect the 
exercise of rights and requiring the special use permits.
    And in this area, the State Administrators have the 
authority to consider the Forest Service's interest and the 
Forest Service's needs and for the most part also have a public 
interest requirement that they can take into consideration. The 
Forest Service has the right to participate in these 
administrative processes.
    One of the big issues for us is going to be the language in 
the Directive that directs the Forest Service to claim Federal 
reserve water rights to groundwater. We do not believe that 
there is any Federal statute, nor is there any Federal court 
case that has ever recognized a Federal reserve right to 
groundwater, and in fact, in the United States v. New Mexico, 
the Supreme Court in 1978 strictly limited the authority or the 
implied reserved rights to surface waters the minimum amount 
needed for the primary purposes of the National Forest which 
were forest production and maintenance of flows which I think 
is talking about watershed protection because many of us depend 
on those watersheds in the West for our water resources. And 
the court specifically denied any implied reserved right for 
fish and wildlife or recreation uses.
    We appreciate the Forest Service, the challenges that they 
have to address. We look forward to a dialogue with them, but 
we do not believe that this is primarily their responsibility. 
It is the responsibility of the states, and we appreciate your 
oversight of this action and oppose any assertion of Federal 
ownership interest in groundwater. And I appreciate again the 
opportunity to testify.
    [The prepared statement of Mr. Willardson follows:]

   Prepared Statement of Anthony G. Willardson, Executive Director, 
                Western States Water Council, Murray, UT
    On behalf of the Western States Water Council, a nonpartisan 
government entity created by western governors to advise them on water 
policy issues, I am here to express the concerns of the Council 
regarding the U.S. Forest Service's (USFS) Proposed Directive on 
Groundwater Resource Management, published in the Federal Register for 
public comment on May 6. My testimony is based on Council Position No. 
340--State Primacy over Groundwater (attached), as well as WGA Policy 
Resolution 2014-03 on Water Resources Management in the West, and a 
July 2nd letter to USDA Secretary Tom Vilsack from Governors John 
Hickenlooper of Colorado and Brian Sandoval of Nevada, then Chair and 
Vice Chair of the Western Governors' Association (also attached). The 
latter states: ``Our initial review of the Proposed Directive leads us 
to believe that this measure could have significant implications for 
our states and our groundwater resources.''
    In an August 29th letter, shortly before the close of the 
originally published comment period, Secretary Vilsack responded to a 
number of questions raised by the Governors and the Western Governors' 
Association, which is considering the Secretary's explanations and 
plans to comment prior to the newly extended deadline of October 3rd. 
The Council and WGA continue to work closely together on this issue, 
and reiterate, as stated in the Governors' letter that: ``States are 
the exclusive authority for allocating, administering, protecting and 
developing groundwater resources, and they are primarily responsible 
for water supply planning within their boundaries.''
    We request that the USFS seek an authentic dialogue with the states 
to achieve appropriate policies that reflect both the legal division of 
power and the on-the-ground realities of the West. USFS should have 
consulted with the states before publishing the proposed directive, and 
should now seek substantive engagement with the states in order to 
define and remedy any perceived deficiencies or inconsistencies. The 
directive may be well intentioned, but the problems that it is designed 
to address are not apparent, nor is the protection of groundwater a 
primary USFS responsibility.
I. State Primacy Over Surface Water and Groundwater
    The Congress and the U.S. Supreme Court have consistently 
recognized that states have primary authority and responsibility for 
the appropriation, allocation, development, conservation and protection 
of the surface water and groundwater resources. Congress has recognized 
states as the sole authority over groundwater since the Desert Land Act 
of 1877. Moreover, the Court held in California Oregon Power Co. v. 
Beaver Portland Cement Co., 295 U.S. 142 (1935), that states have 
exclusive authority over the allocation, administration, protection, 
and control of the non-navigable waters located within their borders.
    While the proposed directive identifies states as ``potentially 
affected parties'' and recognizes states as having responsibilities for 
water resources within their boundaries, it does not adequately 
acknowledge the primary and exclusive nature of these responsibilities. 
Further, the proposed directive does not explain how it will ensure 
that it will not infringe upon state allocation and administration of 
water rights and uses for both surface water and groundwater. 
Consequently, the Council is concerned that the proposed directive 
could conflict with state water management and water rights 
administration.
    First, the Council is concerned that the proposed directive will 
require the implementation of certain conditions and limitations as 
part of the approval or renewal of special use permits that may 
interfere with the exercise of state issued water rights. Such 
requirements may create a significant burden on existing surface water 
and groundwater right holders who need the special use permits to 
exercise their water rights and could limit or hinder the exercise of 
current and future rights as permitted by the states. For example, 
proposed conservation requirements could limit the full exercise of 
certain water rights. The proposal would also require special use 
permit holders to meter and report their groundwater use, which could 
be expensive and may run contrary to the laws of some states. 
Restrictions placed on injection wells, already regulated by state and 
Federal laws, could affect groundwater recharge projects. These are 
just a few examples.
    There is little information presented on the extent of groundwater 
use on USFS lands and the needs the directive is intended to address. 
Consequently, additional work is needed before adoption of the 
directive to better understand its implications for myriad projects and 
activities to ensure that the proposal does not impair the exercise of 
existing and prospective state granted water rights. The USFS should 
work with the state authorities, and state expertise and resources 
could help define the problem areas within the directive.
    Second, the directive would require the USFS to evaluate all water 
rights applications on National Forest System (NFS) lands, as well as 
applications on adjacent lands that could adversely affect groundwater 
resources the USFS asserts are NFS groundwater resources. As any other 
landowner or water user, USFS has the right to participate in state 
administrative processes to ensure that USFS interests are represented. 
USFS may also condition activities on National Forest lands and permit 
land surface disturbances. However, to the extent that the directive 
purports to interfere with or limit the exercise of state granted 
groundwater rights and state water use permitting authorities on USFS 
lands, and particularly pertaining to uses on non-USFS property, the 
proposed directive is beyond the scope of the agency's authority. The 
directive's requirement could also impose an unnecessary burden on USFS 
staff and other resources, as state water right administrators not only 
have exclusive water use permitting authority, but also have the 
expertise to evaluate any and all impacts on water resources and water 
users. The directive raises the possibility of USFS actions interfering 
with the exercise of valid pre-existing property rights to the use of 
state waters. It is inappropriate for the USFS to attempt to extend its 
administrative reach to waters and adjacent lands over which it has no 
authority.
    Third, the proposal's rebuttable presumption that surface water and 
groundwater are hydraulically connected raises another set of 
questions, including the standard and methods that may be used to rebut 
this presumption. In fact, groundwater and surface waters may or may 
not be hydrologically connected requiring extensive and expensive 
geohydrologic analyses, which the USFS is ill equipped to undertake on 
a large scale. Further, the management of groundwater and rights to the 
use of groundwater varies by state and is as much a legal question as 
it is a scientific question of connectivity. Moreover, if the USFS 
presumes to have authority to regulate groundwater uses, then their 
rebuttable presumption of a connection to surface water sources could 
lead to an unwarranted and contentious assertion of authority over 
surface water uses as well, which the U.S. Supreme Court has clearly 
rebuffed.
II. Legal Basis of the Proposed Directive
    The Council has a number of questions about the legal basis for the 
proposed directive. While the proposal cites various Federal statutes 
that it describes as directing or authorizing water or watershed 
management on NFS lands, it contains very little discussion or analysis 
of how these provisions specifically authorize the activities 
contemplated in the proposed directive. The proposal also does not 
address the limits of the USFS' legal authority regarding water 
resources.
    Instead of supporting the proposed directive's activities, many of 
the authorities cited in the proposal support a more limited scope for 
USFS water management activities. For instance, none of the cited 
statutes mention groundwater specifically and many are primarily 
limited to the surface estate. Moreover, 16 U.S. Code Section 481 
specifically provides that: ``All waters within the boundaries of 
National Forests may be used for domestic, mining, milling, or 
irrigation purposes, under the laws of the state wherein such National 
Forests are situated . . . .''
    The Council is particularly troubled by language in the directive 
that would require application of the reserved water rights doctrine to 
groundwater. As noted in the Council's attached position, the U.S. 
Supreme Court has recognized Federal reserved rights to surface water, 
but no Federal statute has addressed, nor has any Federal court 
recognized, any Federal property or other rights related to 
groundwater. Except as otherwise recognized under state water law, the 
Council opposes any assertion of a Federal ownership interest in 
groundwater or efforts to otherwise diminish the primary and exclusive 
authority of states over groundwater.
    It is also important to note that the U.S. Supreme Court narrowly 
interpreted the Organic Act, which the USFS cites as one of the legal 
justifications for the proposal, in United States v. New Mexico, 438 
U.S. 696 (1978). Namely, the Court denied USFS claims to implied 
reserved surface water rights claims for fish, wildlife, and recreation 
uses and found that reserved rights made pursuant to the Act were 
limited to the minimum amount of water necessary to satisfy ``primary 
purposes'' of the National Forest reservation, such as the conservation 
of favorable surface water flows and the production of timber. 
Furthermore, the Court found that all other needs were secondary 
purposes that required state-issued water rights. Similarly, the 
Court's other decisions regarding the reserved water rights doctrine 
have generally narrowed its scope by imposing ``primary purpose'' and 
``minimal needs'' requirements. The proposal must ensure that it 
complies with the limits the Court has placed upon the recognition and 
exercise of implied Federal reserved water rights.
    Further, the assertion of reserved water rights in state general 
water rights adjudications and administrative proceedings can be 
contentious, time-consuming, costly, and counterproductive, often 
resulting in outcomes that do not adequately provide for Federal needs. 
For this reason, different states and Federal agencies have worked 
together to craft mutually acceptable and innovative solutions to 
address Federal water needs. The State of Montana and USFS have entered 
into a compact that recognizes and resolves such needs. These types of 
negotiated outcomes are often much more capable of accommodating 
Federal interests and needs and should be considered before asserting 
any reserved rights claims. At a minimum, the directive should require 
the USFS to consider alternatives to asserting reserved water rights 
claims, including those made in general state water rights 
adjudications and administrative proceedings.
III. The Lack of State Consultation
    The Council is especially concerned by the lack of state 
consultation in the development of the proposed directive and its 
assertion that it will not have substantial direct effects on the 
states, on the relationship between the Federal Government and the 
states, and the distribution of powers between the various levels of 
government. WSWC Position No. 371 (attached) notes that E.O. 13132 
requires Federal agencies to ``have an accountable process to ensure 
meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications . 
. . .''
    As declared by the governors, the directive has the potential to 
significantly impact the states and their groundwater resources. Any 
Federal action that involves the possible infringement on state water 
rights and the assertion of reserved water rights claims has, on its 
face, the ability to significantly impact state granted private 
property and water use rights, their administration, and state water 
management and water supply planning.
    It is particularly perplexing that the USFS deems it necessary to 
consult with Tribes under Executive Order 13175, but has determined 
that the states do not warrant similar consultation under Executive 
Order 13132. It is difficult to understand how the USFS will be able to 
carry out this proposal in coordination with the states, as the 
directive proposes, without robust and meaningful consultation with the 
states. Moreover, waiting until the public comment period to solicit 
state input, as the USFS has done in this instance, is dismissive and 
counterproductive. Timely and substantive discussions could have led to 
improvements in the directive before being proposed, recognized and 
incorporated state's authorities and values, and avoided or minimized 
conflicts. The states should have been consulted much earlier in the 
development of this directive, especially given that it has apparently 
been under discussion for years.
IV. Conclusion
    The Council appreciates the opportunity to testify and express our 
concerns with the proposed directive. Secretary Vilsack's letter to the 
Governors includes an invitation to meet and discuss the directive. The 
Council encourages such a dialogue before the USFS takes any further 
action on this proposal. The Council is also ready to participate in a 
dialogue with the USFS to address questions and concerns raised herein 
regarding the proposed directive, as well as those raised by our member 
states in their comments, some of which have already been submitted and 
are attached to this testimony. Given the extension recently granted, 
some of these states may choose to supplement their comments before the 
new deadline. (Separately attached for the record are comments provided 
USFS from Alaska, Idaho, Nevada, North Dakota, South Dakota, Washington 
and Wyoming.)
    Thank you for your oversight efforts. We ask for your careful 
consideration of our concerns and those of our member states. We look 
forward to further dialogue with the USFS regarding this proposal, and 
hope the USFS will appropriately defer to the authority of the states 
to manage their groundwater and surface waters, as recognized by the 
Congress and the Supreme Court.
                              Attachment 1
Position No. 340
Position of the Western States Water Council on State Primacy Over 
        Groundwater
Washington, D.C.
March 15, 2012
    Whereas, groundwater is a critically important natural resource 
that is vital to the economy and environment of the arid West;

    Whereas, the Desert Land Act of 1877 and the United States Supreme 
Court in California Oregon Power Co. v. Beaver Portland Cement Co., 295 
U.S. 142 (1935) recognize states have exclusive authority over the 
allocation and administration of rights to the use of the groundwater 
within their borders and states and their political subdivisions are 
primarily responsible for the protection, control and management of the 
resource;

    Whereas, the Congress has created and the U.S. Supreme Court has 
recognized Federal reserved rights to surface water, but no Federal 
statute has addressed nor Federal court recognized any Federal property 
or other rights related to groundwater; and

    Whereas, the regulatory reach of Federal statutes and regulations, 
including but not limited to the Clean Water Act, Endangered Species 
Act, National Environmental Policy Act, Reclamation Act of 1902, Safe 
Drinking Water Act, and the Comprehensive Environmental Response, 
Compensation, and Liability Act, were never intended to infringe upon 
state ownership or control over groundwater; and

    Whereas, States recognize the importance of effective groundwater 
management and are in the best position to protect groundwater quality 
and allow for the orderly and rational allocation and administration of 
the resource through state laws and regulations that are specific to 
their individual circumstances; and

    Whereas, the conditions affecting groundwater supplies, demands, 
and impairments vary considerably across the West and within individual 
states; and

    Whereas, Federal efforts to exert control over or ownership 
interests related to groundwater or otherwise infringe upon or 
supersede state groundwater management are contrary to Federal law and 
threaten effective groundwater management and protection; and

    Whereas, nothing stated in this position is intended to apply to 
the interpretation or application of any interstate compact.

    Now Therefore Be It Resolved, states have exclusive authority over 
the allocation and administration of rights to the use of the 
groundwater located within their borders and are primarily responsible 
for allocating, protecting, managing and otherwise controlling the 
resource; and

    Be It Further Resolved, that the Western States Water Council 
opposes any and all efforts that would establish a Federal ownership 
interest in groundwater or diminish the primary and exclusive authority 
of states over groundwater.*
---------------------------------------------------------------------------
    * (See also Position No. 337).
---------------------------------------------------------------------------
                              Attachment 2
Position No. 371
Resolution of the Western States Water Council Regarding Water-Related 
        Federal Rules, Regulations, Directives, Orders and Policies
Helena, Montana
August 11, 2014
    Whereas, Presidential Executive Order 13132, issued on August 4, 
1999, requires Federal agencies to ``have an accountable process to 
ensure meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications . 
. .''; and

    Whereas, an increasing number of Federal regulatory initiatives and 
directives are being proposed that threaten principles of federalism, 
an appropriate balance of responsibilities, and the authority of the 
states to govern the appropriation, allocation, protection, 
conservation, development and management of the waters within their 
borders; and

    Whereas, taking such actions goes beyond the intent of the 
applicable laws; and

    Whereas, a number of these recent proposals have been made with 
little substantive consultation with state governments; and

    Whereas, a Western Federal Agency Support Team (WestFAST) now 
comprised of twelve water-related Federal agencies was created pursuant 
to a recommendation of the Western Governors' Association and Western 
States Water Council to foster cooperation and collaboration between 
the Federal agencies and states and state agencies in addressing water 
resource needs; and

    Whereas, State consultation should take place early in the policy 
development process, with the states as partners in the development of 
policies; and

    Whereas, Federal agencies have inappropriately dismissed the need 
to apply this requirement to their rulemaking processes and procedures; 
and

    Whereas, water quantity regulation and management are the 
prerogatives of states, and water rights are private property, 
protected and regulated under state law;

    Now Therefore Be It Resolved, that nothing in any Federal rule, 
regulation, directive, order or policy should affect, erode, or 
interfere with the lawful government and role of the respective states 
relating to: (a) the appropriation and allocation of water from any and 
all sources within their borders; and/or (b) the withdrawal, control, 
use, or distribution of water; and/or (c) affect or interfere with any 
interstate compact, decree or negotiated water rights agreement; and/or 
(d) application, development and/or implementation of rules, laws, and 
regulations related to water.

    Be It Further Resolved, that Federal agencies with water related 
responsibilities fully recognize and follow the requirements of 
Executive Order 13132 by establishing and implementing appropriate 
procedures and processes for substantively consulting with states, 
their Governors, as elected by the people, and their appointed 
representatives, such as the Western States Water Council, on the 
implications of their proposals and fully recognize and defer to 
states' prerogatives.
                              Attachment 3
July 2, 2014

  Hon. Tom Vilsack,
  Secretary of Agriculture,
  U.S. Department of Agriculture,
  Washington, D.C.

    Dear Secretary Vilsack:

    Western Governors are concerned by the United States Forest 
Service's (USFS) recently released Proposed Directive on Groundwater 
Resource Management (hereafter ``Proposed Directive''). As you know, 
states are the exclusive authority for allocating, administering, 
protecting and developing groundwater resources, and they are primarily 
responsible for water supply planning within their boundaries.
    Congress recognized states as the sole authority over groundwater 
in the Desert Land Act of 1877. The United States Supreme Court 
reiterated the exclusive nature of state authority in California Oregon 
Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935).
    Despite that legal and historical underpinning, the Proposed 
Directive only identifies states as ``potentially affected parties,'' 
and asserts that the USFS's proposed actions would ``not have 
substantial direct effects on the states.'' Our initial review of the 
Proposed Directive leads us to believe that this measure could have 
significant implications for our states and our groundwater resources.
    For this Proposed Directive--as well as the Proposed Directives for 
National Best Management Practices for Water Quality Protection on 
National Forest System Lands--USFS should seek authentic partnership 
with the states to achieve appropriate policies that reflect both the 
legal division of power and the on-the-ground realities of the region.
    We respectfully request your responses to the attached questions to 
help us better understand the rationale behind this new proposal.
            Sincerely,
            
            

 
 
 
John Hickenlooper                    Brian Sandoval,
Governor, State of Colorado,         Governor, State of Nevada,
Chairman, WGA;                       Vice Chairman, WGA.
 

  western governors' association questions regarding proposed united 
     states forest service (usfs) water quality-related directives
Proposed Directive on Groundwater Resource Management
    Legal Basis for USFS Action:

    Well over a century ago, Congress recognized states as the sole 
authority over groundwater in the Desert Land Act of 1877. The United 
States Supreme Court reiterated the exclusive nature of state authority 
in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 
142 (1935), recognizing that states have exclusive say over the 
allocation, administration, protection and control of groundwater 
within their borders.

   What is the legal basis for U.S. Department of Agriculture 
        (USDA)/USFS assertion of federal authority in the context of 
        the Proposed Directive? What does the USDA/USFS recognize as 
        the limits of federal authority?

   The Proposed Directive states that, when filing groundwater 
        use claims during state water rights adjudications and 
        administrative proceedings, Forest Service employees should ``. 
        . . [a]pply Federal reserved water rights (the Reservation or 
        Winters doctrine) to groundwater as well as surface water to 
        meet Federal purposes under the Organic Administration Act, the 
        Wild and Scenic Rivers Act, and the Wilderness Act'' (emphasis 
        added).

     What is the legal basis for these claims?

     When and how will USFS assert reserved water rights 
            claims to groundwater?

   The Proposed Directive states that the assertion of reserved 
        rights to surface water and groundwater should be consistent 
        with the purposes of the Organic Administration Act, the Wild 
        and Scenic Rivers Act, and the Wilderness Act. In the 1978 case 
        United States v. New Mexico, 438 U.S. 696 (1978), the U.S. 
        Supreme Court denied USFS claims to reserved rights for fish, 
        wildlife and recreation uses. Rather, the Court found that the 
        Organic Act limits reserved rights to those necessary to meet 
        the primary purposes of the Act--the conservation of favorable 
        water flows and the production of timber--and that other 
        secondary needs must be met by obtaining appropriation rights 
        from the state.

     How does the Proposed Directive work within the legal 
            framework required by the Court?

     Given the Supreme Court's finding, how does the 
            Organic Act authorize USFS reserved rights to groundwater 
            here?

    State Authority:

   Given the Federal statutory grant of state authority over 
        groundwater and U.S. Supreme Court case law discussed above:

     What will ``cooperatively managing groundwater with 
            states'' mean in practice?

     How will the Department ensure that the Proposed 
            Directive will not infringe upon, abrogate, or in any way 
            interfere with states' exclusive authority to allocate and 
            administer rights to the use of groundwater as well as the 
            states' primary responsibility to protect, manage, and 
            otherwise control water resources within their borders?

     Do the new considerations for groundwater under USFS' 
            existing special use authorizations amount to a permit for 
            groundwater use? If (as stated) groundwater and surface 
            water are assumed to be hydraulically connected, could this 
            special use authorization for groundwater amount to water 
            rights permitting of both groundwater and surface water? 
            Will there be an increase in regulatory responsibilities 
            for states and water users? What will the new requirements 
            for monitoring and mitigation entail?

   The Proposed Directive asserts that it does not trigger the 
        requirements of E.O. 13132 on federalism--that it would not 
        impose compliance costs on states or have substantial direct 
        effects on states or the distribution of power.

     Given the changes this directive would make in the 
            ways state-managed waters are permitted, why do USDA and 
            USFS believe this action would not trigger E.O. 13132?

    Scientific Assumptions and Definitions:

   How will definitions be established for the Proposed 
        Directive? Particularly regarding the definition of 
        ``groundwater-dependent ecosystems,'' states should be able to 
        weigh in with information regarding the unique hydrology within 
        certain areas.

   The Proposed Directive would require the Forest Service to, 
        ``[a]ssume that there is a hydrological connection between 
        groundwater and surface water, regardless of whether state law 
        addresses these water resources separately, unless a 
        hydrogeological evaluation using site-specific data indicates 
        otherwise.'' The Federal Register notice for the Directive 
        further states that, ``this assumption is consistent with 
        scientific understanding of the role and importance of 
        groundwater in the planet's hydrological cycle.'' Yet without 
        citing specific scientific evidence for specific areas, the 
        assumption of connectivity opens new waters to permitting 
        without sound evidence that takes site-specific considerations 
        into account.

     What quantifiable science does USFS depend upon to 
            justify this broad assertion of Federal authority?

    Application to Existing Permitted Uses:

   How will the Proposed Directive apply to existing, permitted 
        activities on USFS lands? How will it affect existing uses that 
        rely on state-based water rights?

    Nexus to Forest Planning Rule:

   How is this Proposed Directive related to the Forest 
        Planning Rule?

    Process Concerns:

   Given the Proposed Directive's potential impacts on states 
        and stakeholders, why was this new policy released as a 
        Proposed Directive rather than a rule?

   Why were states--the exclusive authorities over groundwater 
        management--not consulted during USDA/USFS' development of this 
        Proposed Directive?

    Proposed Directives for National Best Management Practices for 
Water Quality Protection on National Forest System Lands:

   How do the proposed BMP Directives relate to NEDC v. Brown, 
        litigation overturned by the U.S. Supreme Court which would 
        have identified forest roads as subject to permitting under the 
        Clean Water Act (CWA)?

   How will the Proposed Best Management Practices (BMP) 
        Directives relate back to the recent proposed rule regarding 
        the scope of waters protected under the CWA and the related 
        study on Connectivity of Streams and Wetlands to Downstream 
        Waters from the Environmental Protection Agency's Scientific 
        Advisory Board?

   What are the implications of using these BMP Directives as 
        USFS' primary requirements to meet water quality standards?

   Will these become the basis for future regulatory action 
        impacting specific activities on USFS lands (for example, 
        energy production, mining, or grazing)?

   What is the legal basis of asserting that USFS needs to 
        institute BMP Directives to ``[maintain] water resource 
        integrity?''
                              Attachment 4
August 29, 2014

  Tom Tidwell, Chief,
  James M. Penna, Associate Deputy Chief,
  U.S. Forest Service
  Washington D.C.

RE: USFS Directive on Groundwater Resources Proposed FSM 2560

    Dear Chief Tidwell and Associate Deputy Chief Penna:

    These comments are hereby submitted on behalf of the State of 
Alaska (Alaska). The Alaska Department of Natural Resources (ADNR) has 
the statutory authority and responsibility for management of water use 
on all lands within the state, public or private. ADNR also works with 
the Alaska Departments of Environmental Conservation, Fish and Game and 
Law for the protection of all water in Alaska.\1\ Alaska finds these 
proposed directives to be duplicative of existing state programs; to 
have the potential for vetoing state decisions; and, perhaps most 
disturbing, to assume that states are not adequately performing their 
roles in regulating groundwater.
---------------------------------------------------------------------------
    \1\ The Alaska Department of Natural Resources, the Alaska 
Department of Environmental Conservation and Alaska Department of Fish 
and Game provided feedback and support for this response.
---------------------------------------------------------------------------
    As a member of the Western Governors' Association (WGA) and Western 
States Water Council (WSWC), Alaska is already part of the group of 
western states who have questioned this directive (see WGA Letter to 
Secretary Vilsack dated July 14, 2014 signed by Governors Hickenlooper 
and Sandoval), and was part of the recent discussions with Associate 
Deputy Chief Penna at the July 14-18 WSWC meeting in Helena, MT. These 
comments are in further response to USFS's request for comments, and 
Chief Penna's personal request for more detailed response from member 
states.
    Chief Penna noted in his presentation on July 17 that this 
Directive was (1) not intended to impact use of water and, rather, was 
to be related to activities on USFS land; (2) was not related to EPA's 
waters of the U.S. initiative; (3) would not be related to private 
land; and (4) that the USFS should consult state agencies. He further 
stated that the USFS was looking at the Multiple Use Act of 1960 and 
was not trying to manage allocation, rather the USFS was trying to 
manage uses which impact water. He also noted that the USFS just wanted 
to be treated equal to any other landowner.\2\
---------------------------------------------------------------------------
    \2\ David W. Schade, MPA, ADNR/DMLW Water Resources Section Chief 
notes of comments made by Associate Deputy Chief Penna to WSWC at the 
Council Committee Meetings July 17, 2014 in Helena, MT.
---------------------------------------------------------------------------
    If that was what the detail in the directive and the Federal 
Register summary stated, Alaska would have little dispute with the USFS 
proposal. However, that is not the case. To quote from the Federal 
Register Summary, ``The Forest Service proposes to amend its internal 
Agency directives for Watershed and Air Management to establish 
direction for management of groundwater resources on National Forest 
System (NFS) lands as an integral component of watershed management'' . 
. . ``This proposed Groundwater Directive represents a change in Forest 
Service's national policy on water management''. The Forest Service 
recognizes that states and tribes also have responsibilities for water 
resources within their boundaries and that management of groundwater 
needs to be conducted cooperatively with the states and tribes to be 
successful.'' (Italics added) These statements are not aligned with 
Chief Penna's statements, and in fact are contrary to Congressional 
acts and Court decisions. It is widely acknowledged that the states 
have primary authority and responsibility for appropriation and use of 
surface and groundwater within their borders. Further, it should be 
noted that the U.S. Supreme Court held in California Oregon Power Co. 
v. Beaver Portland Cement Co.\3\ that states have exclusive authority 
over the allocation, administration, protection, and control of the 
groundwater located within their borders. In Alaska, these policies are 
strengthened by our Constitution in Article 8,  2-5, & 13,\4\ which 
established water as a common use resource subject to appropriation and 
use under the prior appropriation doctrine. The Alaska Legislature 
further defined the management and use of water and delegated the 
responsibility to uphold these water use policies to the Alaska 
Department of Natural Resources (ADNR) by the Alaska Water Use Act, AS 
46.15. In short, it is Alaska who has primary and/or exclusive 
jurisdiction over water resources, and in this role it is the state who 
would collaborate with the USFS, not the opposite as opined in the 
proposed directive.
---------------------------------------------------------------------------
    \3\ 295 U.S. 142 (1935).
    \4\  2. General Authority: The legislature shall provide for the 
utilization, development, and conservation of all natural resources 
belonging to the state, including land and waters, for the maximum 
benefit of its people.

     3. Common Use: Wherever occurring in their natural state, fish, 
wildlife, and waters are reserved to the people for common use.

     4. Sustained Yield: Fish, forests, wildlife, grasslands, and all 
other replenishable resources belonging to the state shall be utilized, 
developed, and maintained on the sustained yield principle, subject to 
preferences among beneficial uses.

     5. Facilities and Improvements: The legislature may provide for 
facilities, improvements, and services to assure greater utilization, 
development, reclamation, and settlement of lands, and to assure fuller 
utilization and development of the fisheries, wildlife, and waters.

     13. Water Rights: All surface and subsurface waters reserved to 
the people for common use, except mineral and medicinal waters, are 
subject to appropriation. Priority of appropriation shall give prior 
right. Except for public water supply, an appropriation of water shall 
be limited to stated purposes and subject to preferences among 
beneficial uses, concurrent or otherwise, as prescribed by law, and to 
the general reservation of fish and wildlife.
---------------------------------------------------------------------------
    Alaska is a large state with six regions and five temperate zones, 
ranging from an arctic environment in northern Alaska, to sub-arctic in 
southcentral, to a mid-latitude oceanic climate in Southeast Alaska. It 
covers 663,267 square miles, or 424.49 million acres, of which only 22 
million acres are USFS managed land.\5\ Alaska's portion of all USFS 
managed land (192.8 million acres) is the largest of any state, and not 
only quite different within the state, vastly different than many USFS 
lands throughout the continental U.S. Each state, especially Alaska, 
has unique circumstances within its borders, and unique expertise 
within the state government to manage these diverse lands and waters. 
Yet, the Forest Service directive attempts to make a broad general 
policy which must be used everywhere, notwithstanding these 
differences. The following specific issues should be noted.
---------------------------------------------------------------------------
    \5\ http://www.fs.fed.us/land/staff/lar/2007/TABLE_4.htm.

---------------------------------------------------------------------------
          (1) Jurisdiction

                  (a) In spite of the U.S. Forest Service's 
                pronouncements that the proposed directive will not 
                impinge on the state's authority to manage and allocate 
                the use of water resources that each state owns 
                throughout (including on and under Federal lands) the 
                state's borders, the proposed directive contains 
                wording that effectively says just the opposite. See 
                section 2560.04, paragraph 6 on page 17 of the draft 
                manual that states it is the responsibility of forest 
                and grassland supervisors to coordinate and implement 
                agreements with Federal, state, and local agencies . . 
                . for manage-
                ment . . . of groundwater resources. Also Section 
                2560.03--Policy, paragraph 6.a. (on Cooperation with 
                Other Governmental Entities) states: ``Manage 
                groundwater quantity and quality on NFS lands in 
                cooperation with appropriate state agencies and, if 
                appropriate, EPA.''
                  (b) The proposed directive speaks in terms of 
                requiring applicants to also get a state issued water 
                right for a proposed project.

    The proposed directive language doesn't recognize that a state may 
issue temporary water use authorizations. These authorizations may be 
the more appropriate type of water use approval and the choice of the 
state, especially if they choose to grant a short term approval of the 
water use. Further, additional or different water quality 
authorizations or permits may be required.

                  (c) The proposed directive doesn't confine its 
                requirements to just evaluating potential impacts to 
                groundwater/surface water, but also requires an 
                applicant's proposal (for water withdrawals) to the 
                U.S. Forest Service to identify the beneficial uses of 
                the water (see section 2563.3, paragraph 2.a. on page 
                30 of the draft manual).

    If the U.S. Forest Service is requiring a statement of the 
beneficial use of the proposed water use, it is injecting itself into 
the state's jurisdiction to determine what constitutes a beneficial use 
of the water that is owned by the state.

                  (d) The proposed directive requires all new and 
                reissued written authorizations the Forest Service 
                issues to contain terms requiring the authorization 
                holder to provide to the Forest Service all groundwater 
                monitoring data and information collected in compliance 
                with applicable local, state, or other Federal 
                requirements (see section 2561, paragraph 3 on page 23 
                of the draft manual).

    This doesn't make any exception for information that may be granted 
proprietary and confidential status under state law. This is further 
indication of an attempt to manage the use of groundwater. This also 
places a significant and unnecessary reporting burden upon applicants.

                  (e) Although the Forest Service documents refer to 
                working with project applicants to come up with 
                mitigation measures that would allow a project to be 
                approved in spite of perceived groundwater/surface 
                water impacts, section 2563.4, paragraph 6 on page 32 
                of the draft manual specifically states that ``the 
                authorized officer shall deny the application if NFS 
                groundwater resources would be compromised, despite 
                mitigation, if the proposed use were authorized . . . 
                .''

    This amounts to proposing a Federal veto power over a state's 
decision to issue a water right (for a project on or near Forest 
Service System lands) to allocate the use of the water that is owned by 
the state. The statement further seems to suggest Forest Service 
ownership of groundwater resources within the boundaries of Forest 
Service administered lands which is fundamentally NOT true.

                  (f) The proposed directive requires an applicant's 
                proposal to identify existing water withdrawals in the 
                vicinity of the proposed project to allow for 
                evaluation of its potential to adversely affect NFS 
                water resources and facilities and neighboring non-NFS 
                water supplies (see section 2563.3, paragraph 2.e. on 
                page 31 of the draft manual).

    It appears from this wording that the U.S. Forest Service is 
injecting itself into the state's jurisdiction to determine if a 
proposed new water use will affect existing water right holders, even 
those existing water right holders not located on Forest Service System 
lands.

                  (g) The proposed directive attempts to require 
                notifying the U.S. Forest Service (and thus invoking 
                the proposed Federal oversight and potential Federal 
                veto of proposed groundwater/surface water uses) of 
                water use applications to the state in situations where 
                the state may not have otherwise felt the need to 
                notify the U.S. Forest Service (e.g., where the 
                proposed project is outside of but near Forest Service 
                System lands).

    As noted earlier, Alaska asserts that the USFS has no jurisdiction 
over the management and use of groundwater. Alaska also asserts that it 
has primary jurisdiction over the management of surface waters. The 
Forest Service states that by implementing the proposed directive it 
will not be interfering with the state water right issuance process, 
and thus implying that the FS will not be usurping state jurisdiction 
over water use allocation. However, even if the proposed directive is 
not based on any new Federal authority, or in fact a new interpretation 
of existing authority, in practice, the USFS proposed changes can, and 
likely will, change what was effectively an exclusive state process for 
allocating the use of water within each state's borders into a process 
of concurrent Federal and state oversight and allocation of water 
(surface and subsurface water) within and near Forest Service System 
lands. Further, Alaska unequivocally rejects the USFS attempt to manage 
groundwater under lands near USFS boundaries.

          (2) Hydrological connection assumed

                  (a) The proposed directive mandates that groundwater 
                and surface water be assumed to be the same source of 
                water (assume a hydrological connection exists at every 
                proposed project site) regardless of whether state law 
                addresses these water resources separately (see section 
                2561, paragraph 1 on page 22 of the draft Manual) and 
                this assumption prevails unless a hydrological 
                evaluation using site-specific data indicates 
                otherwise.

    Alaska does not agree that any assumptions should be made regarding 
connectivity, and further asserts that it is the state who leads this 
review as part of its inherent right to manage water resources. It will 
be problematic and far reaching if, without any direction or authority, 
the USFS attempts to require a project proponent to bear the cost of 
the hydrological evaluation. The assumption that groundwater and 
surface water are hydrologically connected at every proposed project 
site doesn't give any consideration to the physical and technical 
aspects of the hydro-geology as currently understood. For example, the 
depth of proposed groundwater withdrawal or injection is not even 
mentioned, and thus doesn't incorporate any discussion about different 
aquifer layers separated by impervious geologic layers, such as 
routinely found in Alaska.

          (3) Forest Service permit process ``inadequate''

                  (a) The Forest Service states that it hasn't in the 
                past adequately evaluated potential groundwater impacts 
                from its own projects or for other project applicants 
                to which it grants authorizations, and thus the 
                proposed directive will be the basis of a consistent 
                Federal assessment process to evaluate potential 
                groundwater quantity and quality impacts.

    Alaska believes that current USFS groundwater planning guides are 
more than adequate. Further, the USFS only has to look to its current 
groundwater planning documents to see the fallacy of the argument that 
a new directive is needed to adequately evaluate potential groundwater 
impacts. USFS ``Technical Guide to Managing Ground Water Resources'' 
(FS-881 May 2007) is a 281 page document which gives clear guidance to 
staff on the framework of hydrogeologic principles, methods of 
investigation and for managing groundwater resources. This manual 
clearly outlines the USFS role as the land manager and also 
appropriately acknowledges the state's role as the groundwater use 
regulator. This manual does what the new Directive is purported to be 
doing.
    Alaska also believes that in Alaska the USFS does and will continue 
to have a role in the water right or water authorization process as the 
land manager.\6\ They also may have secondary jurisdictions as related 
to some water issues, so Alaska looks to the USFS for their approval on 
issues such as possessory interests, and also seeks USFS input as to 
permit conditions to be placed on state issued water use permits and 
authorizations (in the same manner that the Alaska Department of Fish 
and Game or Alaska Department of Environmental Conservation are 
consulted). If the USFS changed the proposed directive to require USFS 
field staff to utilize state water law and permitting processes to 
achieve their land management objectives and to cooperate and 
coordinate with each state, this directive would likely meet the goals 
as stated by Chief Penna, and in the latest expanded question and 
answer paper.
---------------------------------------------------------------------------
    \6\ The Alaska Department of Natural Resources has worked with the 
USFS on projects located within the Chugach National Forest and the 
Tongass National Forest. For example, see the collaboration on the 
Kensington and Greens Creek mines in Southeast Alaska.

---------------------------------------------------------------------------
          (4) USFS staffing/expertise inadequate

                  (a) The expanded set of questions and answers notes: 
                ``The Forest Service currently has four dedicated 
                groundwater specialists that provide technical support 
                to the National Forest and Grasslands with the 
                potential to add more. In addition, there are a number 
                of other specialists across the agency with training or 
                experience in groundwater. If circumstances require it, 
                a forest or grassland can contract the services of a 
                qualified groundwater specialist. Finally, the Forest 
                Service has ongoing training and technical resources to 
                assist employees across the agency understand and 
                address groundwater issues.''

    The states all have a much larger number of technical staff trained 
in the fields of hydrology and water management. It is unrealistic to 
think that the USFS is going to get increased Federal funding in a time 
of budget deficits for staff to perform a function which is primarily, 
and at times exclusively, the jurisdiction of the states. In reality, 
this will likely have the effect of either cursory review by the USFS 
staff, or lengthy delays in the processing of USFS special use permits. 
Further, it would make more sense for the USFS to consider the state 
experts' opinions as a primary resource, instead of considering the 
need for ``contract services''.

                  (b) The definition of ``groundwater dependent 
                ecosystems'' in section 2560.05 includes areas of cave 
                & karst systems. Several factors make it imperative 
                that individual National Forests have latitude within 
                the directive to adapt it to local conditions.

    Some of the most productive timber lands in the Tongass National 
Forest are within the extensive karst areas of the forest. To meet the 
requirement of the Tongass Timber Reform to ``seek to meet the demand'' 
for timber supply and support the region's economic structure, the 
proposed regulations must allow Tongass National Forest managers to 
apply local expertise when considering forest management activities on 
karst topography.
    I again reiterate that the state's reading of the plain language in 
the Directive does not correspond with Chief Penna's answers given in 
response to the pointed questions from the public, states and other 
stakeholders. The U.S. Forest Service's proposed Groundwater Directive 
is akin to the Forest Service requiring a person with a state issued 
driver's license who wants to drive on or even near Forest Service 
System lands to also pass a U.S. Forest Service administered driver's 
test and be issued a Federal driver's license before being allowed to 
operate their vehicle on or near Forest Service System land.
    The proposed directive effectively implements a redundant layer of 
government regulation over the allocation and use of state owned water 
resources (both groundwater and surface water, because of the 
assumption built into the proposed directive that groundwater and 
surface water are everywhere hydrologically connected unless proven 
otherwise), and effectively gives the Federal Government a veto power 
over state decisions to issue a water right for projects on or even 
near Forest Service System lands.
    If the USFS does not accept that its current groundwater planning 
guides are adequate and thus continues to pursue establishment of the 
proposed directive, then Alaska respectfully requests that the USFS 
convene a working group of state and tribal water use managers to 
assist in developing a new draft directive. It is my belief that a 
directive can be written which will fully meet the needs of the USFS as 
articulated by Chief Penna and the USFS in its numerous explanation 
documents. Alaska offers to assist with this endeavor.
            Sincerely,
            
            
Brent W. Goodrum,
Director.

CC: Groundwater Directive Comments,
USDA Forest Service, Attn: Elizabeth Berger,
WFWARP, 201 14th Street, SW.,
Washington, D.C. 20250;

Honorable Tom Vilsack,
Secretary of Agriculture,
U.S. Department of Agriculture,
1400 Independence Avenue, S.W.,
Washington, D.C. 20250;

Honorable Sean Parnell,
Governor, State of Alaska,
P.O. Box 110001,
Juneau, Alaska 99811-0001;

Kip Knudson, Director State and Federal Relations,
Office of Governor Sean Parnell,
444 North Capital NW, Suite 336,
Washington, D.C. 20001-1512;

Larry Hartig, Commissioner,
Alaska Department of Environmental Conservation,
P.O. Box 111800,
Juneau, Alaska 99811;

Michelle Hale, Director,
ADEC, Division of Water,
P.O. Box 111800,
Juneau, Alaska 99801-1800;

Joseph Balash, Commissioner,
Alaska Department of Natural Resources,
550 W. 7th Avenue, Suite 1400,
Anchorage, Alaska 99501.
                              Attachment 5
September 3, 2014

  Groundwater Directive Comments,
  USDA Forest Service,
  Attn: Elizabeth Berger--WFW ARP,
  Washington, D.C.

RE: State of Idaho's Comments on Proposed Directive on Groundwater 
            Resource Management, Forest Service Manual 2560

    Ms. Berger:

    The State of Idaho (``state'') submits the following comments on 
the United States Forest Service (``USFS'') Proposed Directive on 
Groundwater Resource Management, Forest Service Manual 2560 
(``Directive'').
    Groundwater within Idaho is a public resource that is subject to 
control and regulation by the state. The Idaho Constitution provides 
that use of the waters of Idaho is a public use subject to regulation 
and control by the state. Idaho Const. Art. XV  1 and 3. No person or 
entity may use the public waters of the State of Idaho without first 
having obtained a valid water right to use the water. I.C.  42-201, 
42-202, 42-203A, 42-204, 42-219. The Director of the Idaho Department 
of Water Resources is charged with administering all surface and 
groundwater within Idaho according to the prior appropriation doctrine. 
I.C.  42-602, 42-607.
    The USFS may hold Federal reserved or state-based water rights, but 
it does not own all groundwater underlying National Forest lands. Any 
USFS claim to the groundwater resources of the State of Idaho must 
either be established under state law or determined through a general 
stream adjudication. The Snake River Basin Adjudication (``SRBA'') and 
the Coeur d' Alene-Spokane River Basin Adjudication (``CSRBA'') are 
general stream adjudications in Idaho. The McCarran Amendment (42 
U.S.C.  666) requires Federal Government participation in these 
general stream adjudications. Any USFS claim to the groundwater 
resources of the State of Idaho has been or will be determined in these 
general stream adjudications or through the state administrative 
process. The USFS' water rights are subject to state administration in 
priority with all other water rights.
    The USFS is governed by the Organic Administration Act (``Organic 
Act''). 16 U.S.C.A.  473-475, 477-482, 551. The Organic Act 
establishes the purposes of the National Forest System: ``No National 
Forest shall be established, except to improve and protect the forest 
within the boundaries, or for the purpose of securing favorable 
conditions of water flows, and to furnish a continuous supply of tim-
ber . . . .'' 16 U.S.C.A.  475. The Multiple Use Sustained Yield Act 
(``MUSYA'') provides: ``[T]he National Forests are established and 
shall be administered for outdoor recreation, range, timber, watershed, 
and wildlife and fish purposes.'' 16 U.S.C.A.  528. The MUSYA, 
however, merely supplemented the primary purposes of watershed 
preservation and timber supply. U.S. v. New Mexico, 438 U.S. 696, 708 
(1978). The purpose of the National Forests is not water management, 
but the protection of watersheds for use by downstream users by 
preventing erosion through land use management practices such as 
preserving trees and underbrush. USFS limitation or prevention of 
downstream water use and control of state water resources was not 
contemplated by the USFS' Organic statutes.
    The Directive is based on the false premise that the USFS is 
empowered to manage all groundwater resources that underlie National 
Forest lands. The Organic Act does not empower the USFS to manage 
groundwater resources nor reverse Congress' historic policy of 
deference to state water law. The USFS may manage its own water rights 
and may claim injury via state processes if it believes those water 
rights are being injured, but it is not empowered to manage or 
otherwise regulate the use of groundwater resources within the State of 
Idaho. The following portions of the Directive unlawfully assert that 
the USFS may preempt the state's authority to allocate and administer 
groundwater underlying National Forest lands:

------------------------------------------------------------------------
              Provision                    State of Idaho's Concern
------------------------------------------------------------------------
2560.02.1 ``To manage groundwater     The meaning of ``manage'' and
 underlying NFS lands cooperatively    ``cooperatively'' are unclear.
 with states and Territories . . .     The state is solely responsible
 and Tribes to promote long-term       for administering, allocating,
 maintenance or restoration of         and distributing the public water
 groundwater systems and their         of Idaho.
 groundwater-dependent ecosystems .
 . . .''
------------------------------------------------------------------------
2560.03.1 ``Focus Forest Service      The meaning of ``Forest Service
 groundwater resource management on    groundwater resource'' is
 those portions of the groundwater     unclear. The USFS may hold water
 system that if depleted or            rights, but it does not own all
 contaminated would have an adverse    groundwater underlying National
 effect on surface resources or        Forest lands. Groundwater is a
 present or future uses of             public water of the State of
 groundwater.''                        Idaho.
                                      The meaning of ``management'' is
                                       unclear. The state is solely
                                       responsible for administering,
                                       allocating, and distributing the
                                       public water of Idaho.
------------------------------------------------------------------------
2560.03.2 ``Manage surface water and  The meaning of ``manage'' is
 groundwater resources as              unclear. The state is solely
 hydraulically interconnected . . .    responsible for administering,
 unless it can be demonstrated         allocating, and distributing the
 otherwise.''                          public water of Idaho.
------------------------------------------------------------------------
2560.03.3 ``Evaluate and manage the   The meaning of ``manage'' is
 surface water-groundwater hydro-      unclear. The state is solely
 logical system . . . .''              responsible for administering,
                                       allocating, and distributing the
                                       public water of Idaho.
------------------------------------------------------------------------
2560.03.4.d ``Require monitoring and  The USFS does not have authority
 mitigation appropriate to the scale   to unilaterally require
 and nature of potential effects . .   mitigation for groundwater
 . when authorizing a proposed use     depletions. The state is solely
 or Forest Service activity that has   responsible for administering,
 a significant potential to            regulating, and distributing all
 adversely affect NFS groundwater      water rights in Idaho and for
 resources.''                          determining injury to a water
                                       right.
                                      The meaning of ``NFS groundwater
                                       resources'' is unclear. The USFS
                                       may hold water rights, but it
                                       does not own all groundwater
                                       underlying National Forest lands.
                                       Groundwater is a public water of
                                       the State of Idaho.
------------------------------------------------------------------------
2560.03.6.a ``Manage groundwater      The meaning of ``manage'' is
 quantity and quality on NFS lands     unclear. The state is solely
 in cooperation with appropriate       responsible for administering,
 state agencies . . . .''              allocating, and distributing the
                                       public water of Idaho.
                                      The USFS does not have authority
                                       to control the water quantity or
                                       water quality requirements for
                                       water rights in Idaho. The state
                                       is responsible for administering,
                                       regulating, and distributing all
                                       water rights in Idaho and for
                                       determining injury to a water
                                       right.
------------------------------------------------------------------------
2560.03.6.d ``Manage wellhead         The meaning of ``manage'' is
 protection areas, source water        unclear. The state is solely
 protection areas, and critical        responsible for administering,
 aquifer protection areas that are     allocating, and distributing the
 designated pursuant to the . . .      public water of Idaho.
 SDWA . . . or state equivalent.''
------------------------------------------------------------------------
2560.03.6.e ``Require written         The state controls the terms and
 authorization holders operating on    conditions that may be placed on
 NFS lands to obtain water rights in   a water right. If the USFS wants
 compliance with applicable state      certain conditions to be placed
 law, FSM 2540, and the terms and      on a water right issued under
 conditions of their                   state law, it must participate in
 authorization.''                      the state water right process.
------------------------------------------------------------------------
2560.03.8.a ``Require measurement     The term ``corresponding written
 and reporting to the Forest Service   authorization of the quantity of
 in the corresponding written          water utilized'' is unclear. To
 authorization of the quantity of      the extent this means a state-
 water utilized for all public         issued water right, the state
 drinking water systems that           controls the terms and conditions
 withdraw groundwater from NFS lands   that may be placed on a water
 and that are classified as            right. If the USFS wants certain
 community water systems under the     conditions to be placed on a
 SDWA.''                               water right issued under state
                                       law, it must participate in the
                                       applicable state water right
                                       process.
------------------------------------------------------------------------
2560.03.8.b ``Require measurement     The term ``corresponding written
 and reporting to the Forest Service   authorization of the quantity of
 in the corresponding written          water utilized'' is unclear. To
 authorization of the quantity of      the extent this means a state-
 water utilized for all groundwater    issued water right, the state
 withdrawals from high-capacity        controls the terms and conditions
 wells located on NFS lands . . .      that may be placed on a water
 .''                                   right. If the USFS wants certain
                                       conditions to be placed on a
                                       water right issued under state
                                       law, it must participate in the
                                       applicable state water right
                                       process.
------------------------------------------------------------------------
2560.03.8.c ``Require measurement     The term ``corresponding written
 and reporting to the Forest Service   authorization of the quantity of
 in the corresponding written          water utilized'' is unclear. To
 authorization of the quantity of      the extent this means a state-
 water injected for those large        issued water right, the state
 water-injection wells located on      controls the terms and conditions
 NFS lands that open into a            that may be placed on a water
 geological formation containing       right. If the USFS wants certain
 fresh water . . . .''                 conditions to be placed on a
                                       water right issued under state
                                       law, it must participate in the
                                       applicable state water right
                                       process.
------------------------------------------------------------------------
2560.04h.9 ``Appropriately address    The state is responsible for
 adverse impacts on groundwater        administering, regulating, and
 resources from proposed and           distributing all water rights in
 authorized activities such as by      Idaho. To the extent the USFS
 modifying the activities or           believes its water rights are
 adopting mitigation strategies.''     being injured by existing
                                       authorized water use on National
                                       Forest lands, it should seek
                                       administration of its water right
                                       through the applicable state
                                       process.
------------------------------------------------------------------------
2561.2 ``groundwater resources of     The meaning of ``NFS groundwater
 NFS lands . . . NFS groundwater       resources'' is unclear. The USFS
 resources''                           may hold water rights, but it
                                       does not own all groundwater
                                       underlying National Forest lands.
                                       Groundwater is a public water of
                                       the State of Idaho.
------------------------------------------------------------------------
2561.22.2 ``Require or recommend, as  The USFS cannot require that a
 appropriate, that . . . applicable    state agency use certain lease
 State agencies appropriate lease      terms, design modifications, or
 terms, design modification, and       approval conditions.
 approval conditions, as applicable,
 to protect NFS groundwater re-
 sources . . . .''
------------------------------------------------------------------------
2561.25.4 ``Provide to the            The meaning of ``NFS groundwater
 authorizing entity recommendations    resources'' is unclear. The USFS
 or requirements, as appropriate, to   may hold water rights, but it
 protect NFS water resources,          does not own all groundwater
 including whether the water           underlying National Forest lands.
 produced from geothermal resource     Groundwater is a public water of
 operations should be allowed to       the State of Idaho.
 discharge into surface drainages.''  To the extent the state is the
                                       authorizing entity in these
                                       matters, the USFS cannot require
                                       it take certain actions.
------------------------------------------------------------------------
2562.1 ``When issuing or reissuing    The state is solely responsible
 an authorization or approving         for administering, regulating,
 modification of an authorized use,    and distributing all water rights
 require implementation of water       in Idaho. To the extent the USFS
 conservation strategies to limit      believes its water rights are
 total water withdrawals from NFS      being injured by existing
 lands . . . .''                       authorized water use on National
                                       Forest lands, it must seek
                                       administration of its water right
                                       through the applicable state
                                       processes.
------------------------------------------------------------------------
2563.7.2 ``Ensure that all new and    The meaning of ``NFS groundwater
 reissued authorizations . . .         resources'' is unclear. The USFS
 provide for modification of their     may hold water rights, but it
 terms and conditions at the sole      does not own all groundwater
 discretion of the authorized          underlying National Forest lands.
 officer . . . to prevent the          Groundwater is a public water of
 authorized groundwater withdrawals    the State of Idaho.
 or injections from significantly     The state is solely responsible
 reducing the quantity or              for administering, allocating,
 unacceptably modifying the quality    and distributing the public water
 of surface or groundwater resources   of Idaho. To the extent the USFS
 on NFS lands.''                       believes its water rights are
                                       being injured by existing
                                       authorized water use on National
                                       Forest lands, it must seek
                                       administration of its water right
                                       through the applicable state
                                       processes.
------------------------------------------------------------------------
2563.8.4 ``If monitoring detects      The meanings of ``NFS groundwater
 insufficiency of mitigation           resources'' and ``groundwater
 measures or additional or             resources on NFS lands'' are
 unforeseen adverse impacts on NFS     unclear. The USFS may hold water
 water resources from groundwater      rights, but it does not own all
 withdrawals or injections . . .       groundwater underlying National
 [a]dd monitoring or mitigation        Forest lands. Groundwater is a
 measures, change or limit the         public water of the State of
 activities authorized, modify the     Idaho.
 holder's operations, or otherwise    The state is responsible for
 modify the terms and conditions of    administering, regulating, and
 the authorizations if deemed          distributing all water rights in
 necessary . . . to prevent the        Idaho. To the extent the USFS
 authorized groundwater withdrawals    believes its water rights are
 or injections from significantly      being injured by existing
 reducing the quantity or              authorized groundwater use on
 unacceptably modifying the quality    National Forest lands, it must
 of surface or groundwater resources   seek administration of its water
 on NFS lands.''                       right through the applicable
                                       state processes.
------------------------------------------------------------------------

    Congress and the courts have consistently recognized the authority 
of states to manage, control, and administer water within each state's 
boundaries. State administration of water should not be encumbered with 
a parallel, duplicative, shadow administration of water by the USFS.
    In summary, I urge the USFS to abandon this Directive and work 
within state law to address its concerns regarding groundwater 
resources issues in Idaho.
            Sincerely,
            
            
Gary Spackman,
Director,
Idaho Department of Water Resources.

CC:

Stephen Goodson,
Cally Younger,
Clive Strong,
Garrick Baxter,
Shelley Keen.
                              Attachment 6
September 4, 2014

    Ms. Elizabeth Berger,
    U.S. Forest Service,
    WFWART, 201 14th Street S.W.,
    Washington, D.C.

RE: Proposed USFS Directive on Groundwater Resource Management, Forest 
            Service Manual 2560

    Dear Ms. Berger:

    Thank you for the opportunity to comment on the Groundwater 
Directives proposed in Forest Service Manual (FSM) 2500 Chapter 2600, 
published in Vol. 79, No. 87 of the Federal Register.
    Groundwater resources in North Dakota are Waters of the State, as 
defined in Article XI of the State Constitution, and are appropriated 
for the beneficial use under Chapter 61-04 of North Dakota Century Code 
and Article 89-03 of North Dakota State Administrative Code, under the 
administration and authority of the State Engineer.
    Insofar as the United States Forest Service (USFS) may consider its 
land management authority to imply a right of ownership or control of 
the groundwater beneath federally owned lands, it will be in conflict 
with state authority defined under the North Dakota State Constitution 
and under State Century Code which reserves all water as ``Waters of 
the State'' to be held and appropriated for the beneficial use of its 
citizens. The USFS Directive must be consistent with North Dakota State 
law regarding water use jurisdiction, and must be modified to work 
within and be consistent with state law regarding water ownership and 
rights of beneficial use where necessary. Please consider the following 
concerns and appended explanatory comments.
    1. Remove assertions of Federal authority over groundwater. The 
authority cited under Directive No. 2560.01 establishing a Federal 
mandate for watershed management to protect and improve water resources 
for multiple uses and improvement of navigable streams, cannot be 
construed as Federal ownership of groundwater. Watershed management is 
a land management practice for control of the movement and quality of 
runoff to streams. It does not constitute a Federal authority over 
groundwater beneath the land surface, which is a Water of the State. 
Compliance with state law, as cited in several sections of the 
Directive, must be based on a clear understanding of the primacy of 
state jurisdiction over the allocation of its waters.
    2. Remove Reserved Water Right Claims to groundwater. USFS proposed 
directives should remove Directive No. 2567.3, which outlines a 
strategy to ``Apply reserved water rights (the Reservation or Winters 
doctrine) to groundwater as well as surface water.'' In this statement 
USFS is proposing to employ reserved rights intended to allow Federal 
facilities to achieve their purposes (water needs in National Parks, 
etc.) in an expansive manner to create a Federal control over the 
waters themselves. Groundwater has never been included as a Federal 
reserved water right. To claim control over water-table elevations on 
USFS lands as a Federal reserve right would constitute a serious 
encroachment on state groundwater authority, and a clear attempt at 
Federal overreach. USFS is reminded that it has no authority over 
groundwater. Groundwater is Water of the State, and its appropriation 
and protection are under state authority. USFS authorities are related 
to land use. The state would oppose any attempts at establishing a 
Federal Reserve Water Rights for purpose of limiting or federally 
regulating groundwater use.
    3. Remove the presumption of connectivity in Directive 2561.1. 
Whenever groundwater/surface-water connections are important factors 
they should be determined with due diligence (ref. appended Comment 
I.a).
    4. USFS cannot change state water appropriation law for its own 
purposes. In North Dakota a water right requires a point of diversion, 
and cannot be obtained for a natural flow, a spring, a water-table 
elevation or other natural outlet. Directive No. 2560.03.6.e should be 
modified as follows to accommodate state law: ``Obtain water rights 
under when applicable under state law for groundwater and groundwater-
dependent surface water needed by the Forest Service (FSM 2540).'' This 
issue, and hydrologic reasoning supporting the state position, is 
discussed more fully in appended (ref. appended Comment 1.b).
    5. USFS should not misconstrue its rights and prerogatives as 
managers of Federal lands as inclusive of authority over groundwater. 
Directive No. 2560.03.6.f, which directs USFS to ``evaluate all state 
applications for water rights on USFS lands and neighboring lands . . . 
and identify any potential injury,'' should be implemented with 
recognition that water table elevations are not normally protected 
under state law, which is permissive of beneficial use. USFS has the 
right of every land manager to be a party of record to water permits 
affecting its interests and to defend its interests. Much of the U.S. 
Forest Service Directive Chapter 2560 pertaining to ground-water 
resource management on USFS lands is consistent with existing developed 
and long-standing North Dakota State programs in water appropriation, 
water quality management, and the associated regulatory and data 
acquisition and data management programs. Insofar as the Service is 
using its authority, rights and prerogatives as land managers to 
regulate the construction and operation of points of diversion on its 
lands it is not in conflict with state jurisdictions. Moreover, USFS 
has the right to examine, advocate and defend its interests with 
respect to state appropriation of its waters in the same manner as any 
other landowner. Directives requiring plans and documentation for 
proposed uses (No. 2363), monitoring of pumping (Directive No. 2564), 
cleanup of contaminated groundwater (Directive No. 2565), collaborative 
strategies for sustaining groundwater uses (No. 2568), and for 
cooperative monitoring of groundwater (No. 6 and No. 8 of Directive No. 
2363) contain concepts that are consistent with current state law, 
policy and practice and are reasonable land management prerogatives of 
land managers if carried out by state authority. These are discussed 
more fully in appended Comments 2.c-f.
    However, Waters of the State are allocated under state law. The 
protection of a water table elevation is not considered a right under 
state law, it is evaluated under public interest considerations in the 
permit process, and the value of the specific water-table resource must 
be ``weighed and balanced'' against other public interest 
considerations. USFS priorities will not be given primacy simply 
because it is a Federal Government agency. This issue, and hydrologic 
reasoning supporting the state position, is discussed more fully in 
appended Comment 1.b.
    6. Maintain flexibility with public and private beneficial use. 
Directive No. 2563.3.1, which directs managers to ``Deny proposals to 
construct wells on or pipelines across NFS lands which can reasonably 
be accommodated on non-NFS lands and which the proponent is proposing 
to construct on NFS lands because they afford a lower cost and less 
restrictive location than non-NFS lands (FSM No. 2703.2) . . . '' is 
unreasonable and should be modified (ref. appended Comment 1.c).
    In Conclusion, USFS has repeatedly and appropriately recognized the 
importance of state water appropriation law in obtaining water permits 
in its directives. It should also recognize the permissive nature of 
state law in granting those permits within state priorities, 
particularly in relation to water use on non-Federal lands neighboring 
USFS managed lands. Many of the priorities presented in the USFS 
Groundwater Resource Management Directives for USFS managed lands can 
be implemented cooperatively within the framework of state law. State 
authorities have a willingness to work with groundwater issues of 
concern to USFS. However, it is of the utmost importance that USFS 
recognize that groundwater management and appropriation is a state 
jurisdiction and that the waters themselves are Waters of the State. 
USFS should work within the framework and limitations of the state 
legal process in pursuing its objectives.
            Respectfully,
            
            
Todd Sando, P.E.,
State Engineer.
                                comments
Proposed USFS Directive on Groundwater Resource Management
    1. While the USFS directives frequently stress compliance with 
state law, several elements of the proposed directives are problematic 
and appear to be in conflict with the North Dakota State Constitution 
and state law under which all waters are Waters of the State to be 
appropriated for the beneficial use of its citizens, and therefore 
under state authority.

          (a) Directive No. 2561.1 directing land managers to: ``Assume 
        that there is a hydrological connection between groundwater and 
        surface water, regardless of whether state law addresses these 
        water resources separately, unless a hydrogeological evaluation 
        using site-specific data indicates otherwise,'' employs a value 
        judgment rather than a hydrologic principle, which amounts to a 
        policy of ``rebuttable presumption against use.'' Groundwater 
        is a Water of the State, and a permit for its use would not be 
        denied unless a substantial impact on a resource of major 
        importance is indicated with due diligence--not an assumption. 
        The assumption of connectivity should be removed.
          (b) Directive No. 2563.3.6.e. ``Obtain water rights under 
        applicable state law for groundwater and groundwater-dependent 
        surface water needed by the Forest Service (FSM No. 2540)'' may 
        be problematic in principle, in that North Dakota cannot grant 
        a water right for a natural flow, a water table elevation, or a 
        groundwater contribution to a spring or other natural outlet. A 
        North Dakota State water right must have a point of diversion. 
        The State Engineer will consider the impact on surface-water 
        depletions as part of evaluating a water permit affecting 
        downstream permitted beneficial uses, or protection of local 
        surface water levels (under ``public interest'') in case of a 
        major resource (such as the Chase Lake Refuge, which has very 
        high value for wildlife habitat). However, state law is 
        permissive of ``beneficial use,'' and except in the case of a 
        demonstrable high value, the state does not treat surface water 
        exposures of aquifers as a protected priority over pumping 
        diversions for beneficial use--for reasons explained below.
          Much of North Dakota's freshwater supply for municipal, 
        domestic, industrial and agricultural use is diverted from 
        shallow glacial aquifers, many of which discharge to gaining 
        streams, others of which comprise closed depression hydrologic 
        systems. Diversion through pumping must be recovered from river 
        discharges, or frequently by lowering of water tables (which 
        include surface exposures) through which evapotranspiration is 
        recovered. This hydrologic principle is known as 
        ``developmental decline.'' In addition, water tables (and 
        surficial exposures) in the North-Central Plains are strongly 
        affected by climatic trends, which vary from extreme natural 
        depletion during multi-decadal droughts to large-scale land 
        flooding during the peaks of cyclical wet periods, such as 
        those prevailing since 1993 in North Dakota. Aquifer 
        sustainability within these systems is defined by periods of 
        partial depletion, followed by periods of replenishment--often 
        occurring quickly in large rainfall or snowmelt events. To 
        establish a policy by which water-table exposures are given 
        primary protection over other uses would be to render the 
        freshwater supplies unusable under most circumstances and, if 
        protected water elevations were established under wet 
        conditions, would furthermore give regulatory protection to 
        flooding of agricultural lands during the wettest phases of the 
        climatic cycles. For this reason, the state does not protect an 
        inefficient (shallow or inadequate) capture system, and hence 
        does not protect a water table surface, except where the 
        exceptional value of a surface-water body can be demonstrated 
        under ``public interest.'' Within the current system there are 
        inherent limitations on wetland depletions: For example 
        depletions of seeps and springs below levels required for 
        downstream prior appropriators' beneficial use in affected 
        rivers and streams to reasonably acquire their water is not 
        allowed under state water law and is considered in the 
        hydrologic analysis of the water permit process. Similarly, 
        groundwater depletions in closed depression areas of the 
        Central Dakota Aquifer Complex are limited by irrigable land 
        constraints. However, USFS cannot assume controlling authority 
        over the decision of the ND State Engineer, which weighs and 
        balances the public interest in all applications.
          (c) Directive No. 2563.3.1, which directs managers to ``Deny 
        proposals to construct wells on or pipelines across NFS lands 
        which can reasonably be accommodated on non-NFS lands and which 
        the proponent is proposing to construct on NFS lands because 
        they afford a lower cost and less restrictive location than 
        non-NFS lands (FSM 2703.2)'' is unreasonably stated. 
        Furthermore, it contrasts with Directive No. 2560.7.c, which 
        directs managers to ``Encourage the use of water sources 
        located off NFS lands when the water use is largely or entirely 
        off NFS lands, unless the applicant is a public water supplier 
        and the proposed source is located in a designated municipal 
        supply watershed for that supplier (FSM No. 2542).'' Directive 
        No. 2560.7.c, as cited, aligns much better with provisions of 
        ND State law pertaining to water use and the public interest. 
        Under NDCC 61-01-04, ``The United States, or any person, 
        corporation, limited liability company, or association may 
        exercise the right of eminent domain to acquire for public use 
        any property or rights existing when found necessary for 
        application of water to beneficial use.'' Under ND State law 
        land control may not be used to impair water access and use in 
        projects involving the public interest. However, the cost-
        benefit prohibition in relation to private interests, as 
        stated, is extreme. To unnecessarily cause private parties, 
        industrial or agricultural uses to incur additional costs in 
        obtaining water access or infrastructure when harm is minimal 
        would be irresponsible. It is suggested that the underlined 
        portion be deleted, and that it be specified that benefits of 
        access will be weighed against land use impact.

    2. Several provisions of the Policy Directive which employ land use 
practices for the purpose of surface-water quality and maintenance are 
substantially within the authority of USFS and managers of federally 
owned lands, but they are not absolute. The USFS is, in most cases, 
entitled to exercise control or limitation of points of diversion 
constructed on its lands through provisions of lease or contract 
agreements with its tenants. USFS is also entitled to represent and 
defend its interests as a party of record in the state water permit 
process, both on its own lands and on neighboring lands; and to receive 
any of the pertinent data or information obtained and used for water 
regulation by the state. In the execution of these land-owner rights, 
the directives need to distinguish between Federal land ownership 
rights and state authority over groundwater use and control. Examples 
include:

          (a) Provisions of Directive No. 2363 requiring plan submittal 
        and documentation for new wells on USFS lands are reasonable 
        and within the rights of a land owner. Moreover, the right to 
        limit or deny infrastructure construction for private use 
        would, under most conditions, be within the rights of the USFS.
          (b) Directive 6.f. ``Evaluate all applications to states for 
        water rights on NFS lands and applications for water rights on 
        adjacent lands that could adversely affect NFS groundwater 
        resources, and identify any potential injury to those 
        resources'' is within the right of any party under state law. 
        The USFS is entitled to be notified of any water permit 
        applications within 1 mile of its lands, or within twelve miles 
        of its public water systems. Furthermore, USFS may request to 
        be a party of record to any water permit application it 
        considers may affect its management priorities. USFS should be 
        aware, however, that while it has a right to present and defend 
        its interests, and while they will be investigated as part of 
        the permit process, USFS priorities will not necessarily be 
        more highly weighted than those of the applicants and other 
        parties, simply because USFS is a Federal entity. Impediments 
        to water permit requests must be deemed evident and not 
        theoretical, and must be substantial versus the applicants 
        interests.
          (c) Directives for cooperative monitoring of groundwater 
        resources with state agencies and universities (Directive No. 6 
        and No. 8) are not in variance with current state efforts, for 
        which more water levels in more than 4,000 monitoring wells are 
        measured monthly or quarterly, and water chemistry is measured 
        approximately every 5 years, and more frequently as needed. 
        Also the State Health Department samples for pesticides and 
        other organic contaminants in vulnerable aquifers, including 
        those under USFS managed lands) every 5 years. All State Water 
        Commission data is available for the USFS, and anyone else, in 
        a web based data delivery system. Furthermore, the State 
        Engineer maintains an active ongoing groundwater exploratory 
        and investigative program, and cooperative investigative 
        efforts with USFS concerning vital issues is not out of the 
        question, depending on the circumstances. The State Engineer is 
        open to addressing USFS issues.
          (d) Directive No. 2564 requiring ``Measuring And Reporting 
        Volume Of Extracted Or Injected Water'' is met by current state 
        use requirements. All permitted use is reported at least 
        annually (in some cases real time telemetric data is required), 
        and available for USFS examination. Injected water is regulated 
        by the ND Health Department.
          (e) Directive No. 2565 requiring ``Cleanup Of Contaminated 
        Groundwater,'' and Directive No. 2563 requiring ``Source Water 
        Protection'' are currently provided under the state authority 
        of the ND Health Department.
          (f) Directive No. 2568 requiring ``Strategies For Sustaining 
        Groundwater Resources'', through collaborative local state, 
        Federal and Tribal efforts to sustain the availability and 
        usability of groundwater over the long term; encouraging 
        conjunctive uses (like artificial recharge), and water transfer 
        when necessary are completely in line with state ``sustainable 
        use'' policy and a highly developed water use and monitoring 
        program that has been developed by the state over many years.
                              Attachment 7
  Skip Canfield via e-mail,
  Nevada State Clearinghouse,
  State Land Use Planning Agency.

Re: USFS Proposed Directive on Groundwater Resources

    On behalf of the Division of Water Resources, Office of the State 
Engineer, I write to express our concerns with the U.S. Forest 
Service's Proposed Directive on Groundwater Resource Management Forest 
Service Manual 2560 (Directive), which was published in the Federal 
Register for public comment on May 6, 2014. We believe there are many 
problems with the Directive and offer the following discussion which is 
intended to broadly address Nevada's concerns.
I. The Proposed Directive Is Founded Upon Questionable Legal Authority
    We question the legal basis by which the USFS asserts it has 
authority for the actions proposed in the Directive. The Directive 
provides a lengthy recitation of statutes, Executive Orders and 
regulations, which it asserts provide it with the authority to 
``manage'' groundwater; however, our review of those citations of 
authority do not support the USFS' position, nor does the Directive 
contain analysis of how these cited authorities specifically authorize 
the activities set forth in the Directive. While many of the 
authorities stress the need to protect water resources and direct the 
USFS to do through secondary activities which may be within the purview 
of the USFS, none of the authorities provide the USFS with water rights 
in groundwater or with any direct authority to ``manage'' groundwater. 
We provide but a few examples below.
    The Organic Administration Act of 1897 does not contain the basic 
authority for water management, but rather ``defined the purposes for 
which National Forests in the future could be reserved; and it provided 
the charter for forest management and economic uses with the forests.'' 
U.S. v. New Mexico, 438 U.S. 696 (1978). Congress in the Organic 
Administration Act provided that ``No National Forest shall be 
established, except to improve and protect the forest within the 
boundaries, or for the purpose of securing favorable conditions of 
water flows, and to furnish a continuous supply of timber for the use 
and necessities of citizens of the United States . . .'' Id. at 706-
707. National Forests were reserved for only two purposes--to conserve 
the water flows (through the preservation of forest cover) and to 
furnish a continuous supply of timber for the people. Ibid.

          The objects for which the forest reservations should be made 
        are the protection of the forest growth against destruction by 
        fire and ax, and preservation of forest conditions upon which 
        water conditions and water flow are dependent. Id. at 708 
        (emphasis added).

    This Act does not provide the USFS with the authority to manage 
groundwater. Its authority is to manage the forest, which provides 
watershed protection by forest coverage.
    Weeks Act--The Directive indicates this Act authorizes the 
Secretary of Agriculture to acquire forested, cut-over, or denuded 
lands in the watersheds of navigable streams as necessary to regulate 
the flow of navigable streams. This Act does not provide authority for 
the USFS to assert it manages groundwater.
    Multiple-Use--Sustained-Yield Act (MUSYA)--The Directive indicates 
that this Act provides that watershed protection is one of the five co-
equal purposes for which USFS lands were established and are to be 
administered. This is a misstatement of law and fact to assert that 
this Act provides authority to ``manage'' groundwater. While the Act 
provides that it is the policy that National Forests are established 
and shall be administered for outdoor recreation, range, timber, 
watershed and wildlife and fish purposes, the Act also declares that 
these purposes are supplemental to the purposes for which National 
Forests were established under the Organic Administration Act of 1897. 
The U.S. Supreme Court in the case of U.S. v. New Mexico, 438 U.S. 696 
(1978) specifically held that although the MUSYA broadened the purposes 
for which National Forests had previously been administered, the 
reserved water rights of the United States in unappropriated 
appurtenant water had not been expanded beyond that necessary to 
preserve timber or to secure favorable water flows in the National 
Forests. The MUSYA does not provide the USFS with the authority to 
``manage'' groundwater and did not expand any potential implied Federal 
reserved right claim to include groundwater. The implied reserved 
rights doctrine ``is a doctrine built on implication and is an 
exception to Congress' explicit deference to state water law in other 
areas. Without legislative history to the contrary, the Court concluded 
that Congress did not intend in enacting the Multiple-Use Sustained 
Yield Act of 1960 to reserve water for the secondary purposes 
established.'' Id. at 715.
    Federal Land Policy and Management Act--The Directive indicates 
that this Act authorizes the issuance of rights-of-way for water 
diversion, including wells, on USFS lands and, in doing so, it is 
instructed to require the protection of the environment. This Act 
instructs the USFS to protect the environment, but that does not extend 
to it the right to ``manage'' groundwater.
    Forest Service Directives (FSM 2540 and FSH 2509.1)--The Directive 
indicates that these directives establish procedures for complying with 
Federal policy and state water law and procedures for management of 
watersheds on USFS lands that serve as a source of municipal water 
supplies. These directives go to the heart of the matter, that being, 
other than water rights that may be recognized under the implied 
Federal reserved rights doctrine, the USFS has no authority to manage 
the groundwater resources under USFS lands, and that management is the 
responsibility of the states.
    As can be seen by a limited review of the authorities cited for the 
Directive, they are based on false premises. The same problem can be 
seen with every single authority cited in the Directive, and there is 
simply no authority for the USFS to do what it proposes through the 
Directive.
II. Primary Authority and Responsibility for Groundwater Administration 
        Belongs to States
    The USFS is not responsible for, and has no authority over 
groundwater management. Rather, the states are entrusted with the 
responsibility of administering and managing groundwater resources. The 
USFS already has the right to participate as an applicant or protestant 
on water right applications for the use of groundwater on the USFS 
lands. It can apply for water rights itself for uses not covered under 
implied Federal reserved water rights, but the objective set forth in 
FSM 2560-2, ``to manage groundwater underlying USFS lands cooperatively 
with states and Territories and Tribes'' misstates the law and proper 
role of the USFS. Groundwater resources are not USFS resources, despite 
that they may be located under USFS lands.
    In 1935, the United States Supreme Court in the case of California 
Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935) 
interpreted three Acts--the Mining Act of 1866, 1870 amendment to 
Mining Act and Desert Land Act of 1877--and held these three Acts 
effectively severed all waters upon the public domain from the land 
itself. The Court held that the three Acts indicate Congressional 
intent to defer to state water law. It held that the first two Acts 
confirmed that the water laws in western states would determine rights 
in non-navigable water on public land and that the Desert Land Act of 
1877 effectively severed all water upon the public domain from the land 
itself. The Court held that all water on the public domain is public 
juris [public right], and is subject to the plenary control of the 
designated states.
    These three Acts serve as the basis for the general rule that water 
rights on public land must be acquired under state law and that the 
states manage the groundwater on public lands. It is of great concern 
to us that the USFS in its Directive states that a number of Federal 
statutes direct or authorize water management on National Forest System 
lands. We believe this is a misstatement of the law, and thus the 
Directive in many instances, stands in direct contradiction to state 
law.
    Inasmuch as ``management'' is synonymous with affirmative acts to 
control, handle, direct, regulate, take charge of or guide, we believe 
that any ``management'' activity the Directive purports to authorize to 
the USFS will directly infringe on and/or will erode the plenary 
control of water resources by the states as announced by the U.S. 
Supreme Court. The Directive itself recognizes that the USFS has the 
right to participate in state appropriative or adjudicative 
proceedings; however, now the USFS seeks to improperly insert itself 
into the role of the states under the guise of ``cooperative'' 
management with the states.
    What's more, Section 2560.03.7(c) provides that the USFS will 
encourage the use of water sources located off USFS lands when the 
water use is largely or entirely off USFS lands, unless the applicant 
is a public water supplier and the proposed source is located in a 
designated municipal supply watershed for that supplier (FSM 2542). 
Although this section does not appear to directly attempt to usurp 
state authority, it is nonetheless troubling that the USFS would 
advance a general position against having points of diversion on USFS 
land when the place of use is off USFS land, except for municipal 
suppliers. The water resources belong to the citizens of Nevada and 
Nevada rejects any broad-based policy of the USFS to block non-
municipal suppliers from appropriating groundwater on USFS lands.
III. The Proposed Directive Tramples State Law and Places an Increased 
        Burden on Water Applicants and Users
    Section 2560.03.2--Water Resource Connectivity. The Directive 
indicates that all surface water and groundwater resources will be 
presumed to be hydraulically interconnected, and should be considered 
as interconnected in all planning and evaluation activities, unless it 
can be demonstrated otherwise using site-specific information. Nevada 
does not assume that there is a single source unless proven otherwise. 
Therefore, this provision is contrary to Nevada law. Moreover, the 
policy appears to expressly recognize that some states treat it as 
different sources, but the Directive disregards that fact. This may be 
important in light of the fact that the Federal Register indicates that 
after adoption of the Directive, all state and local laws and 
regulations that conflict with the directive or that impede its full 
implementation would be preempted. Nevada believes there has been no 
express or even implied preemption of state law. If it came to pass 
that Nevada were forced to adopt a presumption of hydraulic 
connectivity, it would prove problematic due to the fact that it will 
place additional burdens on water right applicants to disprove this 
presumption, including determining what standards and methods will be 
used to rebut the presumption.
    Also, this broad treatment as a single source appears contradicted 
by other portions of the Directive where USFS wants to treat them as 
different sources for its own purposes. For example, Section 
2560.03.7(b) provides that ``[s]ince groundwater sources generally have 
more stable water quality and quantity than surface water sources, 
favor development of suitable and available groundwater sources rather 
than surface water sources for drinking water at Forest Service 
administrative and recreational sites (FSM 7420).'' Here, the USFS 
wants to treat surface water and groundwater separately for its own 
interests, which is contrary to the broad policy it already indicated 
which would be to treat them as one source. In short, the Directive is 
internally inconsistent.
IV. Responsibility for Groundwater Management Still Resides With the 
        States, Despite the Directive's Attempt To Create Managerial 
        and Policymaking Roles Within the Directive
    Section 2560.04--Responsibility. This section instructs specific 
offices and directors to formulate, maintain, and train regarding 
groundwater policy and procedures. Nevada is very concerned that those 
policies and training be based in settled law and fact and the 
Directive, as written, is not either. For example, Section 2567 
subsection 3--Legal Considerations in Managing Groundwater Resources 
instructs USFS personnel to apply state law when filing groundwater 
claims during a state water rights adjudication and administrative 
proceedings. However, it further instructs them to file claims under 
the implied Federal reserved rights doctrine (Winters) to groundwater 
as well as surface water to meet Federal purposes under the Organic 
Administration Act, the Wild and Scenic Rivers Act, and the Wilderness 
Act. The Directive instructs USFS personnel to assert claims to 
groundwater which is not a settled question of law.
    Section 2560.04(f)(1) instructs Regional Foresters to develop 
agreements as needed with states, Tribes, other Federal agencies, and 
private entities to investigate and assess USFS groundwater resources. 
Nevada Revised Statute  532.170 provides that the State Engineer, for 
and on behalf of the State of Nevada, is authorized to enter into 
agreements with the United States Geological Survey, the United States 
Soil Conservation Service, and any state agency, subdivision or 
institution having jurisdiction in such matters, for cooperation in 
making stream measurements, undergroundwater studies, snow surveys, or 
any investigations related to the development and use of the water 
resources of Nevada. The State Engineer has no authority to enter into 
agreements with the USFS for this purpose.
    Many of the other subsections in the Responsibility Section raise 
concern. For example, subsection 2560.04(f)(3) instructs the USFS to 
develop standards for the use, conservation and protection of USFS 
groundwater resources. It is the states that develop the standards for 
use of groundwater, not the USFS and these groundwater resources are 
not USFS resources. Subsection 2560.04(f)(5) instructs the USFS to 
ensure that training on groundwater resource management is available to 
regional and forest staff and ensure that qualified groundwater 
personnel are available to address groundwater issues, including 
authorization of appropriate groundwater uses, in the region. It is the 
states that have the authority to authorize appropriate groundwater 
uses and the USFS should ensure that training addresses matters 
factually and legally within the USFS jurisdiction.
    Subsection 2560.04(5) instructs that all applications for water 
rights under state water law on USFS or adjacent lands should be 
evaluated for the potential to affect USFS groundwater resources. Here 
again, the Directive keeps repeating that the groundwater under the 
USFS lands is USFS water and this is again a misstatement of the law 
and the facts.
    Subsection 2560.04(6) instructs the USFS to coordinate and 
implement agreements with Federal, state, and local agencies, Tribes, 
and other interested parties for management and restoration of 
groundwater resources. Again, ``management'' of groundwater resources 
is used broadly, where USFS does not have authority to manage over the 
jurisdiction of the state.
Consideration of Groundwater Resources in Forest Service Project, 
        Approvals and Authorizations
    Subsection 2561.21--Locatable Mineral Mining. This section 
instructs that the USFS can apply terms and conditions for the 
reasonable use of groundwater for locatable minerals operations. 
Reasonable use of either surface or groundwater in connection with 
locatable mining must be authorized in an approved mining Plan of 
Operations. The Federal Register described this section as only 
clarifying that allowing use of groundwater for mining is a 
discretionary action to be addressed through authorization in the 
mining Plan of Operations. It is not the jurisdiction of the USFS to 
condition the use of groundwater; the use of the groundwater is under 
the jurisdiction of the state. The USFS may have jurisdiction on how 
that water may be used on the land, but does not have jurisdiction over 
the appropriation of said groundwater.
V. The USFS Failed To Consult the States in Promulgating the Proposed 
        Directive
    Section 2560.03.6--Policy. This section indicates that the USFS 
should manage groundwater quantity on USFS lands in cooperation with 
appropriate state agencies, but in (6)(c) admits that others have the 
authority to regulate the resource and in (6)(e) that the USFS must 
obtain rights for many of its activities under state law. The authority 
for the management of groundwater rests with the states and is not done 
``cooperatively'' with the USFS. As already stated above, the USFS' 
rights extend to participating in the state process for acquisition and 
use of water as an applicant or protestant, but it goes too far to say 
that the USFS has jurisdiction or any role as a manager of groundwater 
resources.
    We are troubled by the lack of state consultation in the 
development of the Directive. The Directive asserts that it will not 
have substantial direct effects on the states, on the relationship 
between the Federal Government and the states, and the distribution of 
powers between the various levels of government, which would require 
compliance with the state consultation criteria set forth in Executive 
Order 13132. However, as amply demonstrated above, we believe the 
Directive implicates serious federalism concerns and significantly 
impacts the states by infringing on state water rights. The assertion 
of implied Federal reserved water rights to groundwater has the ability 
to significantly impact state water rights and state water management. 
We find it disturbing that the USFS found it significant enough to 
consult with the Tribes under Executive Order 13175, but determined 
that the states do not warrant similar consultation under Executive 
Order 13132. The lack of consultation by the USFS is particularly 
poignant in light of Section 3 of that Order, which states in pertinent 
part that ``the national government shall grant the states the maximum 
administrative discretion possible. Intrusive Federal oversight of 
state administration is neither necessary nor desirable.'' Waiting 
until the public comment period to solicit state input does not allow 
for meaningful consideration of Nevada's views and concerns.
VI. Conclusion
    We could provide additional examples of specific sections that 
raise many of the same concerns. We request that the USFS abandon this 
attempt to wrest control of groundwater management from Nevada through 
the proposed Directive. Alternatively, at a minimum, we request the 
USFS consult with Nevada and other western states before taking further 
action on the Directive in order to address the foregoing concerns and 
deficiencies. Thank you for your consideration of our concerns.
            Sincerely,

Jason King, P.E.,
State Engineer.
                              Attachment 8
July 31, 2014

  Groundwater Directive Comments,
  USDA Forest Service,
  Attn: Elizabeth Berger--WFWARP,
  Washington, D.C.

    Dear Ms. Berger:

    Thank you for the opportunity to comment on the USDA Forest 
Service's Proposed Directive on Groundwater Resource Management. The 
Department of Environment and Natural Resources Water Rights Program is 
the state agency responsible for regulating the use of water, including 
groundwater, in South Dakota. Water use in the state has been regulated 
since statehood, with water law updates in 1907, 1955, and 1983. South 
Dakota is an appropriative right state.

    South Dakota strongly opposes the USDA Forest Service's Proposed 
Directive and requests USDA Forest Service withdraw the proposed 
directive for the following reasons:

    1. Lack of authority--The implementation of this proposed directive 
        expands the authority of a Federal agency with no Congressional 
        authorization and without regard or deference to state water 
        laws. The proposed directive states the Forest Service will 
        cooperatively manage resources with states and others with 
        common responsibilities, yet the Forest Service has no 
        authorized responsibility to manage groundwater. Rather, the 
        directive mandates the Forest Service to insert the agency into 
        groundwater issues on Forest Service and non-Forest Service 
        land, effectively circumventing state processes. This is 
        contrary to Federal court decisions, which have never 
        recognized a Federal reserved water right to groundwater.

    2. Redundancy--The proposed directive contains a number of 
        regulatory redundancies, requiring the Forest Service to 
        conduct and provide oversight of activities regulated by other 
        Federal, state, and local entities and for which the Forest 
        Service has no regulatory authority. The proposed directive 
        also requires additional scientific personnel to conduct 
        projects that are the responsibility of other Federal and state 
        agencies. For example, the Forest Service is now directed to do 
        research and groundwater evaluations and assessments through 
        this proposal. This is commonly what the U.S. Geological Survey 
        and Environmental Protection Agency do. It is not only a 
        redundancy of responsibilities, it is doubling expenditures of 
        these activities in an already over-extended and unbalanced 
        Federal budget.

    It is stated several times that all authorized Forest Service 
        activities and uses must be in compliance with applicable 
        Federal, state, or local standards. This is appropriate. The 
        proposed directive could be shortened to this statement because 
        all of the issues can be addressed by this one simple 
        statement, since the Forest Service has no authority itself in 
        the matters listed.

    3. Unnecessary delays in and burdensome to state permit process--
        The proposed directive requires the Forest Service to evaluate 
        all state water right applications on and adjacent to Forest 
        Service lands. In South Dakota, there is a state regulatory 
        process in which the Forest Service can intervene by petition 
        in a water right application. The Forest Service can 
        participate in the process of any water right application by 
        becoming a party to a contested case hearing. There is concern, 
        however, that the Forest Service will unnecessarily burden the 
        state agency by questioning every permit on or near Forest 
        Service land. This is especially concerning because the Forest 
        Service believes all groundwater and surface water is 
        hydraulically connected, and groundwater resources in South 
        Dakota, especially those underlying Forest Service land in the 
        Black Hills, are extensive in size. The Forest Service needs to 
        allow the state to do their job for which they have statutory 
        authority and not disrupt water use appropriation for which the 
        Forest Service has no statutory authority.

    4. No scientific basis for ``groundwater ecosystems'' assumptions--
        Assuming all surface water and groundwater is connected as 
        defined by ``groundwater ecosystems'' is simply not 
        scientifically based. The proposed directive makes this across 
        the board assumption and places the burden of proof on states 
        and users of water. The proposed directive should not include 
        the requirement to consider all groundwater and surface water 
        connected.

    5. No time restrictions or due process clauses--There are many 
        items in the proposed directive requiring the Forest Service to 
        independently assess and evaluate groundwater use and impacts 
        to Forest Service resources, conduct research of groundwater, 
        and issue new and renew existing special use permits, which may 
        involve groundwater use. However, there are no time constraints 
        that the Forest Service is required to act and make a final 
        decision. There are also no due process options for permit 
        applicants. Delays to projects and plans by the water users 
        could be devastating during water shortages and financially 
        burdensome for applicants. The proposed directive must include 
        time limits for Forest Service reviews and other activities. It 
        should also include a process through which an applicant can 
        appeal any final Forest Service decision.

    6. No state input--The Forest Service has not sufficiently engaged 
        states in its development of the Groundwater Directive. The 
        process your agency has pursued ignores the required state 
        consultation criteria established in Executive Order 13132. 
        This Order specifically directs Federal agencies to act in 
        strict accordance with governing law and to only preempt state 
        law where there is clear evidence that Congress intended such 
        preemption. The Order also requires Federal agencies to consult 
        with states to determine whether Federal objectives can be 
        obtained by other means in instances, such as this, where there 
        is significant uncertainty as to whether national action is 
        authorized or appropriate. Waiting until a public comment 
        period to solicit state input ignores states' primary water 
        management responsibilities and does not allow for meaningful 
        state input, including consideration of alternative ways of 
        meeting Federal objectives. The proposed directive should be 
        withdrawn until such time as the above issues can be resolved 
        with the input of state agencies with the authority to regulate 
        groundwater use.

    In closing, any policies that assert Federal authority over 
groundwater within Federal lands will have substantial direct effects 
on state water rights, on the relationship between the Federal 
Government and the states, and the distribution of power and 
responsibilities among the various levels of government. In particular, 
such an assertion will infringe upon our state's water management 
activities and our water laws governing water use rights. Moreover, we 
reiterate that the Forest Service does not have authority to preempt 
state water laws related to water supply or water rights. Existing law 
and policy clearly establish that water supply and water rights are 
state and local issues.
    We urge the USDA Forest Service to withdraw the proposed 
Groundwater Directive.
            Sincerely,
            
            
Steven M. Pirner,
Secretary,

CC:

South Dakota Attorney General's Office;
Shaun McGrath, Region 8 EPA, Denver;
Western States Water Council.
                              Attachment 9
August 19, 2014

  Elizabeth Berger,
  WFWARP,
  Washington, D.C.

Re: Proposed Directive on Groundwater Resource Management, Forest 
            Service Manual 2560 (RIN 0596-AC51)

    Dear Ms. Berger:

    The Washington State Department of Ecology (Ecology) submits these 
comments in the interest of role clarity, and to extend an offer of 
cooperation regarding the Proposed Directive on Groundwater Resource 
Management, Forest Service Manual 2560.
    A tenet of western states water law is that states have primary 
authority regarding water allocation decisions within their boundaries. 
Historically, Congress has given substantial deference to states over 
decisions to allocate and assign property rights to surface and 
groundwaters within their borders.
    Ecology understands the Forest Service has a legitimate interest in 
ensuring that these resources are managed in a manner that supports the 
purposes for which its Federal lands are managed. As discussed below, 
Ecology believes this will best be accomplished by engaging with 
respective states directly to share your concerns and identify 
opportunities for information and data sharing. Many of the Forest 
Service concerns can be addressed by engaging in existing state water 
right permitting and water resource planning processes, and Ecology 
would welcome the Forest Service's comments with respect to proposed 
water appropriations that affect Forest Service resources. There are 
approximately 400 pending applications for new water rights for 
locations within National Forests in Washington State, as well as more 
than 7,500 existing water right certificates, permits, and claims.
    Ecology is the agency created to administer Washington State's 
Water Management Program, including its comprehensive water quality and 
water rights programs, and to present the views and recommendations of 
the state regarding any Federal license or permit relating thereto at 
any proceeding, negotiation, or hearing in such regard conducted by the 
Federal Government, Wash. Rev. Code 90.48.260; Wash. Rev. Code 
43.21A.020; Wash. Rev. Code 43.27A.090; Wash. Rev. Code 90.03.010; 
Wash. Rev. Code 90.54.010; Wash. Rev. Code 90.58.010; 16 U.S.C.  
803(a); and 16 U.S.C.  821. Ecology has the responsibility to issue 
Section 401 certifications under the Clean Water Act. See Wash. Rev. 
Code 90.48.260. Ecology also has the responsibility for issuing 
National Pollution Discharge Elimination System (NPDES) permits, 
certifying compliance with the Coastal Zone Management Act (CZMA), and 
enforcing the state Shoreline Management Act (SMA). Moreover, Ecology 
has statutory responsibilities in the matters of environmental review 
and coordination pursuant to the State Environmental Policy Act (SEPA), 
Wash. Rev. Code 86.16.010 et seq.
Groundwater Quality
    The State of Washington has the authority to prevent pollution of 
waters of the state including groundwater through the Water Pollution 
Control Act, Wash. Rev Code 90.48. The Act established authority for 
the state to adopt groundwater quality standards, in addition to water 
quality standards for fresh and marine waters. In addition, Ecology can 
require permits for discharges-to-ground (in the context of 
groundwater) so that they do not pollute waters of the state. Typical 
activities that are regulated include permits to discharge industrial 
wastewater or stormwater to ground and registration of Underground 
Injection Control wells (dry wells, large septic systems, and aquifer 
injection remediation wells). Likely activities on Forest Service lands 
would include mines, stormwater dry wells, and wastewater treatment 
systems that discharge to ground. The Forest Service and Ecology's 
Toxic Cleanup Program also cooperate on toxic cleanup sites such as the 
Holden Mine in the context of contaminated groundwater.
Water Resources/Water Rights
    The State of Washington enacted its Groundwater Code in 1945, Wash. 
Rev. Code 90.44. The Groundwater Code established a groundwater water 
right permitting system to be applied in conjunction with the existing 
surface water right permitting system, Wash. Rev. Code 90.03. The 
Groundwater Code also establishes that certain withdrawals are exempt 
from the water right permitting system. Typical permit-exempt uses 
found within Forest Service boundaries are small withdrawals associated 
with domestic and seasonal residences, which may use up to 5,000 
gallons per day. In addition, groundwater for stockwatering may be used 
without limitation, provided the water is not simply wasted. Other 
common uses include withdrawals associated with Forest Service 
facilities, campgrounds, water supply, and hydropower electric 
projects.
    In addition, the State Legislature has directed Ecology to 
implement the Columbia River Water Management Act, Wash. Rev. Code 
90.90. The purpose of this 2006 Legislation is to develop new water 
supplies ``to meet the economic and community development needs of 
people and the instream flow needs of fish.'' The legislation directs 
Ecology to ``aggressively pursue'' the development of water supplies. 
This plan will include reservoir improvements to provide water supply 
to the Yakima River basin for fish, communities, and agriculture. These 
reservoirs have been in place and in use for many years as part of the 
United States Bureau of Reclamations' Yakima Irrigation Project 
authorized by Congress in 1905. As a member of the Yakima Basin 
Integrated Plan Workgroup it is our expectation that the U.S. Forest 
Service serve as a supportive and collaborative partner to implement 
this vital, innovative, and broadly supported water management plan, 
including already approved projects that will provide water for fish 
and habitat.
Shared Interest in the Management of Groundwater Resources
    Because we share an interest in protecting groundwater resources, 
it is incumbent upon the Forest Service and Ecology to collaborate in a 
manner that assures adequate review and oversight, while avoiding 
wasteful duplication of effort and over-regulation of water users. Like 
other states with water right permitting systems, Washington State has 
considerable expertise and experience in assessing the impacts of 
groundwater withdrawal proposals. Ecology believes that the Forest 
Service would benefit from consultation with the state water resources 
program to better understand how it can complement existing state 
processes without duplicating them.
    The potential areas of cooperation include:

    (1) Communicating with each other regarding our respective review 
        processes for actions with potential groundwater impacts, 
        including process timing, key milestones, decision documents, 
        and opportunities for each party to participate and comment.

    (2) Considering joint pre-proposal meetings with applicants and 
        other interested parties regarding projects that would affect 
        groundwater resources on Forest Service land.

    (3) Sharing information regarding existing groundwater data (e.g., 
        state well log and water right databases, identification of 
        water rights located on Federal land, and available groundwater 
        quality data) and discussing opportunities for data sharing.

    (4) Cooperating on studies to characterize groundwater water 
        resources (including water quality) and impacts from actions 
        undertaken on Federal land.

    (5) Exploring opportunities to ensure that state and Federal 
        regulators do not place contradictory study and monitoring 
        requirements on groundwater permit holders.

    (6) Including state water right and water resources experts in 
        training of Forest Service staff regarding the management of 
        groundwater.

    These forms of cooperation may be anticipated in Section 2560.03(6) 
of the proposed directive. We support this expression of cooperation.
    Ecology appreciates this opportunity to provide our views on the 
proposed Groundwater Directive. If you have any questions or comments 
regarding these comments, please contact Stephan Bernath of our Water 
Quality Program at [email protected] or Jeff Marti of the 
Water Resources Program at [email protected]. Thank you.
            Sincerely,
            
            
Maia D. Bellon,
Director.
                             Attachment 10
September 3, 2014

  Groundwater Directive,
  Comments. USDA Forest Service,
  Attn: Elizabeth Berger,
  WFWART,
  Washington, D.C.

Re: Proposed Directive on Groundwater Resource Management, Forest 
            Service Manual 2560

    Dear Ms. Berger:

    The Wyoming State Engineer's Office (WSEO) appreciates the 
opportunity to comment on the Proposed Directive on Groundwater 
Resource Management, Forest Service Manual 2560. This Proposed 
Directive was published in the Federal Register, Vol. 79, No. 87 on 
Tuesday, May 6, 2014.
    The WSEO is responsible for the administration, regulation, and 
adjudication of surface and groundwater rights in Wyoming, both of 
which lay under the ownership and control of the state. Wyoming's 
Constitution unambiguously addresses ownership of Wyoming's water: 
``The water of all natural streams, springs, lakes or other collections 
of still water, within the boundaries of the state, are hereby declared 
to be the property of the state.'' Wyo. Const. art. 8  1; See also 
Wyo. Stat. Ann.  41-3-101 (stating that water is always the property 
of the state). The United States has approved Wyoming's constitutional 
declaration of water ownership. See Farm Inv. Co. v. Carpenter, 61 P. 
258, 264 (1900).
    Wyoming holds title to water in a sovereign capacity as 
representative of all the people for the purpose of guaranteeing that 
the common rights of all are equally protected. Wyo. Const. art. 1  
31: Merrill v. Bishop, 287 P.2d 620, 625 (Wyo. 1955); See also Farm 
Inv. Co., 61 P. at 265. Wyoming constitutional and statutory provisions 
charge the Board of Control and the State Engineer with the supervision 
of the waters of the state and of their appropriation, distribution, 
and diversion. Wyo. Const. art. 8  2, 5; See, e.g., Wyo. Stat. Ann. 
 41-4-502 through -511. The need for the state to control the use of 
its limited and precious water resources compelled Wyoming's 
declaration of water ownership, and its history of water law and water 
administration that has since developed.
    The purpose of these comments is to provide a response to this 
Proposed Directive in regards to our concerns related to administration 
and regulation of' Wyoming water rights and the Federal overreach into 
areas not authorized by Federal law nor comporting with Executive 
Orders.
Background
    The United States Forest Service (USFS) asserts that its Proposed 
Directive is intended to add Federal management responsibilities for 
groundwater on USFS lands. It changes the Forest Service's national 
policy on water management and challenges Wyoming's authority over 
groundwater within our borders, including Wyoming's primacy in 
appropriation, allocation, and development of groundwater. We disagree 
with the USFS claim that the Proposed Directive does not harm state 
rights. The assumptions, definitions, and new permitting considerations 
contemplated under the Proposed Directive materially interfere with 
Wyoming's authority over surface and groundwater, and will negatively 
impact the state's water users.
Concerns
    The Proposed Directive contains policy excursions for which we find 
no authority, and proposes USFS roles that interfere with Wyoming's 
management of its groundwater resource.

    1. Authority for Groundwater Management and Rights. The USFS fails 
        to cite any Federal statute or court decision which provides 
        for or describes its authority to manage groundwater because 
        there is no such explicit authority under Federal law. After 
        reviewing all the authority citations provided in Section 
        2560.01, we find none that provide explicit authority over 
        groundwater.

    In Section 2567, the Proposed Directive appears to assert Federal 
        reserved rights to groundwater. Specifically, in subsection 2, 
        it states ``Apply Federal reserved water rights (the 
        Reservation or Winters doctrine) to groundwater as well as 
        surface water to meet Federal purposes under the Organic 
        Administration Act, the Wild and Scenic Rivers Act, and the 
        Wilderness Act.'' Wyoming's position is that the USFS does not 
        have Federal authority over groundwater, nor does it have a 
        general, Federal reserved right to groundwater established in 
        Wyoming. There is no ability to ``apply'' Federal reserved 
        water rights by any method other than Congressional action, as 
        a result of U.S. Supreme Court or McCarren Amendment decisions, 
        or through properly approved agreement with the State of 
        Wyoming. It certainly cannot occur through simple assertion or 
        application, as this Proposed Directive appears to do.

    2. Hydraulic Connectivity. Section 2560.03(2) of the Proposed 
        Directive states that surface and groundwater shall be 
        considered a single hydraulically interconnected resource, 
        unless it can be demonstrated that they are not. The Proposed 
        Directive reiterates this position in Section 2561(1). Under 
        Wyoming law, the burden lies with the USFS to prove a hydraulic 
        connection sufficient to warrant conjunctive administration, 
        not with individual appropriators to prove non-connection as 
        the Proposed Directive appears to assert. In many cases, 
        groundwater is not meaningfully connected to surface water, but 
        regardless Wyoming's presumption of non-connection is superior. 
        This is not to concede that there is even a legal basis for a 
        debate on this subject, since Wyoming water law controls the 
        permitting, adjudication, and regulation of surface and 
        groundwater rights on USFS lands within the state.

    By way of example, in July 2013 the State Engineer issued a 
        permanent order covering water rights within the Horse Creek 
        Basin in Goshen County. The order covers both groundwater wells 
        and surface water diversions. Prior to the order, surface water 
        appropriators complained that junior priority groundwater wells 
        were causing surface water depletions in the Horse Creek Basin. 
        As per Wyoming Statute  41-3-916, in situations where 
        undergroundwaters and surface waters are so interconnected as 
        to constitute one source of supply, a single correlated 
        schedule of priorities related to whole common water supply may 
        be established. To analyze the existence of a sufficient 
        groundwater/surface water relationship (impact of adjacent 
        groundwater wells on surface water streams), the State 
        Engineer's Office contracted a technical study to determine the 
        connectivity or the two sources of supply. The study confirmed 
        the necessary connected relationship between groundwater wells 
        and surface water and therefore the two could be regulated 
        under a single schedule of priorities. This example 
        demonstrates how our statutes guide the State Engineer when 
        regulating ground and surface waters as a single source. The 
        USFS proposes to assert hydraulic connection of groundwater and 
        surface water without conducting a study, and pushes that 
        responsibility (to reverse that presumption) on our 
        appropriators. Establishing connectivity within a basin between 
        groundwater wells and surface water provides a means for the 
        State Engineer to regulate and administer water rights under 
        the doctrine of appropriation. Absent that authority, we fail 
        to see why the USFS would make such a presumption unless it was 
        somehow to interfere or affect future water right permitting 
        actions.

    At a minimum, absent site specific analysis establishing 
        interconnectedness satisfying state law, we request that the 
        USFS incorporate into the Proposed Directive language which 
        states that the USFS will recognize and respect the laws of the 
        state within which it is operating.

    3. Adjacent Lands. In Section 2560.03(6f), the Proposed Directive 
        seeks to give the USFS an administrative and approval role on 
        all applications on adjacent lands regarding groundwater 
        resources. Under subparagraph (4d) and (5), the USFS appears to 
        insert itself in groundwater permitting on and off forest 
        lands. The Directive furthermore uses the term ``adjacent'' 
        which is not defined in the Directive. Groundwater permitting 
        decisions are a state function, not a USFS role, even on USFS 
        lands. This section further seeks to provide a groundwater 
        permit review and evaluation role for the USFS, without any 
        indication or what may come from such review or evaluation, 
        under what timeframe it might occur, or any standard of review.

    The Snake and Salt River Basin of western Wyoming is an example. 
        Recent river basin planning work by the Wyoming Water 
        Development Office (WWDO) indicates Federal ownership of 2.95 
        million acres out of a total 3.27 million acres of land in the 
        basin. At 90 percent ownership by the Federal Government in the 
        basin (over \1/2\ of which is USFS), it is conceivable that the 
        USFS would deem the other ten percent state and private 
        ownership along inhabited river bottom land as ``adjacent,'' 
        potentially having impact on ``groundwater dependent 
        ecosystems'' (in which groundwater originates on and from USFS 
        land). Under these definitions, proposals for new water uses on 
        downstream state and private surface could be viewed as a 
        potential cause of injury to forest values.

    To illustrate how Wyoming has recognized Federal interests in 
        groundwater, Wyoming Statute  41-3-930(b) specifies that 
        applications for permits to appropriate groundwater within 
        fifteen miles of the boundary of Yellowstone National Park, 
        shall be accompanied by a written report containing necessary 
        information to show that the proposed development will not 
        impair or produce an injurious effect on the groundwater system 
        located within the boundaries of the Park. However, the Wyoming 
        Legislature has recognized no similar consideration for other 
        National Park Service lands, or any other Federal lands, in 
        Wyoming.

    4. Conflict with recent Memorandum of Understanding. In January 
        2012, the USFS and the State of Wyoming entered into a 
        Memorandum of Understanding (MOU) that runs through calendar 
        year 2016. In this MOU, the USFS agreed to recognize and 
        respect the laws and Constitution of the State of Wyoming and 
        to honor permitting practices that applied equally to the 
        United States and to water right applications by Wyoming 
        citizens. The Proposed Directive, creating a Federal reach into 
        an area where states have been recognized as the exclusive 
        entity for water right permitting and administration, would 
        conflict with the recent MOU in the following ways:

      a. The MOU says nothing about Federal reserved water rights.

      b. The MOU says nothing about the USFS commenting on applications 
            on ``adjacent'' lands.

      c. The MOU has a 30 day window for USFS comment only. The 
            Proposed Directive has no timeframe for, or standard of, 
            review.

      d. The MOU provides for a courtesy notice for time-limited 
            applications. The Proposed Directive makes no mention of 
            time-limited uses of water.

      c. The MOU is silent on any presumed connection between 
            groundwater and surface water.

      f. The MOU places certain requirements on the USFS prior to 
            abandonment or changes of water rights. The Proposed 
            Directive is silent on the role of the USFS regarding 
            changes to or abandonment of water rights.

    5. The Proposed Directive puts an undue burden on Wyoming water 
        users. From the proposed required measurement and reporting of 
        produced groundwater (paragraph 2563.3(2a) of the directive), 
        to the possible hydrogeologic studies needed to show that an 
        aquifer is not connected to surface waters (paragraph 2561(1) 
        of the directive). Wyoming appropriators will be faced with a 
        new slate of obligations and costs for water use on these 
        public lands.

    The USFS has also indicated that they have no intention to usurp 
        the state role in water rights permitting or management, and 
        see the Proposed Directive as only assuring they are treated in 
        a manner consistent with other landowners. It is important to 
        remember that not only is the USFS already treated the same as 
        other landowners when it applies for permits to appropriate 
        water, or when it satisfies statutory standing requirements for 
        protest or other contested case procedures, it is immune from 
        condemnation actions to which private landowners are not when 
        access to water is concerned Wyo. Const. art. 1.  32). In this 
        regard, the USFS is already in a more favorable position when 
        acquiring or influencing water use facilities than is the 
        typical Wyoming landowner.

    Examples of where we believe the Proposed Directive does impact the 
        State Engineer's water right permitting authorities:

      a. USFS insertion into the permitting process itself where it 
            possesses no right or standing under state law. See section 
            2560.04h. It is unknown what role the USFS intends to play 
            as it determines impact or injury from water right 
            application review, when only the SEO, Board of Control, or 
            state courts have authority to make an injury 
            determination.

      b. USFS intends to assert itself without a recognized right. By 
            inserting itself in the ``adjacent land'' review process 
            and otherwise, and through less-than-fully prescribed 
            application of the definitions of ``groundwater dependent 
            ecosystems'' and ``sustainable use,'' it is clear that the 
            USFS intends to assert itself and influence state-permitted 
            water right decisions within and beyond the reach of Forest 
            Service boundaries regardless of whether or not it holds 
            valid water rights.

    6. Groundwater dependent ecosystems. Further, regarding the 
        treatment of ``groundwater dependent ecosystems,'' it is 
        unclear what authority the USFS asserts in protecting such 
        systems or whether or not attempts will be made to tie private 
        surface water or groundwater use proposals on adjacent lands 
        back to forest land by defining and extending such an ecosystem 
        to and through adjacent lands.

    7. The Proposed Directive was created without state consultation. 
        By noticing the State of Wyoming along with the general public 
        in the May 6 release, the USFS denied the state an important 
        consultative role in a document which apparently has been in 
        the works for 8 years. The State of Wyoming is more than a 
        simple stakeholder--we follow a system of water laws under 
        which the Federal agencies are water users like anyone else. 
        Treating the state as a simple commenter on Federal directives 
        ignores the state's primary authority as recognized by the 
        President under Executive Order 13132, by Congress dating from 
        the 1800s including the McCarren Amendment (relied upon by the 
        states since 1952), and by the United States Supreme Court. 
        This action unacceptably diminishes Wyoming's sovereign role.

    We encourage the USFS to retract the Proposed Directive especially 
where concerns exist about the conflict with Wyoming's authority in the 
permitting, administration and regulation of water rights. Thank you 
for the opportunity to comment on the Proposed Directives.
            Sincerely,
            
            
Patrick T. Tyrrell,
Wyoming State Engineer.

CC:

The Honorable Michael B. Enzi, U.S. Senate;
The Honorable John Barrasso, U.S. Senate;
The Honorable Cynthia Lummis, U.S. House of Representatives;
Nathan Bracken, Western States Water Council;
Chris Brown, Attorney General's Office.

    The Chairman. Thank you, Mr. Willardson. Now I recognize 
Mr. Shawcroft for 5 minutes.

 STATEMENT OF DON SHAWCROFT, PRESIDENT, COLORADO FARM BUREAU, 
                         CENTENNIAL, CO

    Mr. Shawcroft. Thank you, Chairman Thompson, Ranking Member 
Walz, Representative Tipton, and other Members of the 
Subcommittee. Thank you for holding this hearing.
    I am Don Shawcroft, a fourth-generation rancher from the 
San Luis Valley of South Central Colorado. I am President of 
the Colorado Farm Bureau, as mentioned, and a Member of the 
Board of Directors of the American Farm Bureau Federation, the 
nation's largest agricultural organization.
    We have a strong interest in maintaining the longstanding 
working relationship between Federal land management agencies 
and public land ranchers. The proposed Forest Service 
Groundwater Directive is one of critical concern for farmers 
and ranchers, particularly those in the West where public land 
grazing is a vital component of rural economies. As a matter of 
law and process, this appears to be an effort by the 
Administration to grant itself unprecedented control over 
waters of the states and ultimately, greater control over the 
natural resources in the West.
    It is no secret that the Forest Service has long sought to 
expand Federal ownership of water rights in the western United 
States, and in recent years has repeatedly attempted to 
circumvent state water rights and appropriation laws. There is 
no provision in Federal law authorizing or permitting the 
Forest Service to compel owners of lawfully acquired water 
rights to surrender those rights to the United States.
    The Farm Bureau's opposition of the Proposed Directive is 
based on the government's lack of legal authority to regulate 
groundwater. The Directive's attempt to expand Federal 
authority through an interconnectivity clause and its 
authorization of action is in violation of the takings clause 
of the United States Constitution.
    Despite the Forest Service citing the Organic Act and the 
Weeks Act to justify the Directive, the Forest Service does not 
have the authority to approve or disapprove uses of waters 
which are granted under state water.
    Inexplicably, the Forest Service also points to the Clean 
Water Act as a source of legal authority for the Directive. 
There is no explanation of how the Clean Water Act applies to 
this Directive or how sections 303, 401, 402, or 404 of the 
Clean Water Act provide any legal authority to the Forest 
Service to regulate groundwater. The Groundwater Directive 
proposes a new standard of interconnectivity by proposing to 
``manage surface water and groundwater resources as 
hydrologically interconnected and consider them interconnected 
in all planning and evaluation activities.'' This presumption 
implies that the agency has authority to manage, monitor, and 
mitigate water resources on all National Forest Service lands. 
Further, the Directive expands the Forest Service regulatory 
scope of groundwater resources to a watershed-wide scale 
including both Forest Service lands and adjacent lands and 
private lands.
    The Forest Service's attempt to use controversial Clean 
Water Act terminology, such as hydrologic connection, to 
establish its authority over water rights is misplaced and 
unlawful. In fact, the Supreme Court specifically rejected the, 
``any hydrological connection approach'' to Federal 
jurisdiction in the Rapanos decision. While publicly, the 
Forest Service claims the Directive would not infringe on the 
states' authority, nor impose requirements on private 
landowners, the facts speak otherwise. The Directive 
specifically states that the agency is: ``to evaluate all 
applications to states for water rights on National Forest 
lands and application for water rights on adjacent lands that 
could adversely affect National Forest Service groundwater 
resources and identify potential injury to those resources.'' 
This language dangerously attempts to expand Federal authority 
in approving state-granted water rights. This assumption of 
Federal authority violates Federal and state statutes and will 
ultimately upset water allocation systems and private property 
rights on which western economies have been built. With the 
exception of certain federally reserved rights, the states own 
and manage water within their jurisdictions. Farm Bureau 
supports the present system of appropriated water rights 
through state law and opposes any Federal preemption of state 
water law.
    Last, the Directive would authorize actions that would 
violate the takings clause of the United States Constitution. 
Under the Forest Service terms and conditions, the agency will 
now be able to require holders of water rights with permitted 
activities on System lands to comply with the water clause and 
to hold their water rights jointly with the United States. 
Further, there is no reference in the Directive to the 
government's obligations to pay just compensation for the 
surrender to the government of privately held water rights, 
legally adjudicated by the state. Water rights as property 
rights cannot be taken without just compensation and due 
process of law. Through statute and years of well-established 
case law, states have developed a system that fairly 
appropriate often scarce water resources to users. Because 
water is the lifeblood of all farm and ranch operations, we are 
concerned that the Federal Government continues to grossly and 
willfully ignore the established system of water rights, even 
after continued assurances it would respect them.
    On behalf of Farm Bureau and tens of thousands of farmers 
and ranchers in the West who depend on state-granted water 
rights, I want to thank you again for addressing this important 
issue and ask for your help in influencing and urging the 
Forest Service to withdraw this Directive. I will be pleased to 
respond to questions from Members of the Committee. Thank you.
    [The prepared statement of Mr. Shawcroft follows:]

 Prepared Statement of Don Shawcroft, President, Colorado Farm Bureau, 
                             Centennial, CO
    Chairman Thompson, Ranking Member Walz, Members of the 
Subcommittee, thank you for holding this hearing. My name is Don 
Shawcroft. I am a rancher from the San Luis Valley in Colorado. I am 
President of the Colorado Farm Bureau and also serve as a board member 
of the American Farm Bureau Federation, the nation's largest 
agricultural organization representing farmers and ranchers who produce 
virtually every agricultural product grown or raised commercially in 
the United States. Farm Bureau has a strong interest in ensuring that 
the longstanding relationship between Federal land management agencies 
and public land ranchers is maintained, and I am pleased to offer this 
testimony this morning on behalf of our organization.
    The subject of today's hearing is one of critical importance for 
farmers and ranchers, particularly those in the west where public land 
grazing is a vital component of rural economies and where it provides 
tremendous opportunities for American ranchers. Public benefits 
provided by science-based grazing management include thriving, 
sustainable rangelands, quality watersheds, productive wildlife 
habitat, viable rural economies, reduction of wildfire hazards, and tax 
base support for critical public services. The proposed Groundwater 
Resource Management Directive (Directive) has raised substantial 
concerns for two reasons. Number one, as a matter of law and process, 
it appears to be an effort by the USDA Forest Service (Forest Service) 
to grant itself, through an administrative proceeding, more authority 
than it has been granted by Congress.
    Should it succeed in this attempt, an agency of the Federal 
Government would gain unprecedented control over waters of the states 
through a purely administrative action, thus giving the Forest Service 
greater control over the natural resources in the West. Second, on 
substantive grounds, if this directive were to become effective, we 
believe it holds the potential to significantly--and detrimentally--
impact the livelihood of farmers and ranchers.
    In recent years the Forest Service repeatedly has attempted to 
circumvent state water rights and appropriation laws. There is no 
provision in Federal law authorizing or permitting the Forest Service 
or the Bureau of Land Management to compel owners of lawfully acquired 
water rights to surrender those rights or to acquire them in the name 
of the United States.
    U.S. farmers play a significant role in feeding seven billion 
people in our world today and contribute to the financial well-being of 
our country. Farm Bureau has identified a number of specific concerns 
related to the formalization of the proposed directive that would 
specifically impact landowners, farmers and ranchers. We are urging the 
Forest Service to withdraw the proposed groundwater resource management 
directive and hope the efforts of your Committee will help us in this 
respect.
Ongoing Conflict in Colorado
    It is no secret that the Forest Service has long sought to expand 
Federal ownership of water rights in the western United States. In an 
August 15, 2008, Intermountain Region briefing paper addressing 
applications, permits or certificates filed by the United States for 
stock water, the agency claimed, ``It is the policy of the 
Intermountain Region that livestock water rights used on National 
Forest grazing allotments should be held in the name of the United 
States to provide continued support for public land livestock grazing 
programs.'' Further, another Intermountain Region guidance document 
dated August 29, 2008, states, ``The United States may claim water 
rights for livestock use based on historic use of the water. Until a 
court issues a decree accepting these claims, it is not known whether 
or not these claims will be recognized as water rights.'' During a 
Subcommittee on National Parks, Forests and Public Lands hearing on 
March 12, 2012, the Forest Service testified, ``The Forest Service 
believes water sources used to water permitted livestock on Federal 
land are integral to the land where the livestock grazing occurs; 
therefore, the United States should hold the water rights for current 
and future grazing.'' Last, the Forest Service recently proposed new 
policy to be included in the U.S. Forest Service manual concerning ski 
area water rights. This proposal, which is currently under 
consideration by the agency, would direct the Forest Service to require 
the transfer of privately held water rights to the Federal Government 
as a condition of a permit's renewal.
    These conflicts have placed Colorado at the center of the ongoing 
conflict over water rights with the Federal Government. Once the Forest 
Service began putting pressure on Colorado ski resorts to sign over 
water rights in exchange for receiving special use permits, it was only 
a matter of time before agriculture appeared in the cross-hairs of the 
Forest Service as well.
    While the agency contends that the new ski area permit condition 
will not require the transfer of water rights, the facts speak 
otherwise. Forest Service manual 2441.32 (Possessory Interests), which 
is currently being enforced, instructs the agency to continue to claim 
the water rights of permitees. Specifically, section 2541.32 of the 
2007 Forest Service Water Uses and Development Manual directs:

          ``Claim possessory interest in water rights in the name of 
        the United States for water uses on National Forest System 
        lands as follows:

                1. Claim water rights for water used directly by the 
                Forest Service and by the general public on the 
                National Forest System.

                2. Claim water rights for water used by permitees, 
                contractors, and other authorized users of the National 
                Forest System, to carry out activities related to 
                multiple use objectives. Make these claims if both 
                water use and water development are on the National 
                Forest System and one or more of the following 
                situations exists:

                        a. National Forest management alternatives or 
                        efficiency will be limited if another party 
                        holds the water right.

                        b. Forest Service programs or activities will 
                        continue after the current permitee, 
                        contractors or other authorized user 
                        discontinues operations. ''\1\
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    \1\ http://tipton.house.gov/press-release/tipton-forest-service-
waging-multiple-assaults-water-rights.

    Documents obtained from the Forest Service website concerning Ski 
Area Permit and the Water Rights Clause state, ``Clauses in special use 
permits specify the terms and conditions with which the permit holder 
must comply, and a permitee's failure to abide by them can be cause for 
suspension or revocation of the permit.'' If the USFS is willing to say 
one thing and do another on the requirement of transfer of water rights 
for the ski areas, how long will it be before special use permits for 
grazing will also contain the requirement to sign over water rights? 
Moreover, will future non-compliance in the relinquishment of water 
rights to the government be used by the Forest Service as a tool to 
reduce grazing on public lands?
    AFBF and Colorado Farm Bureau see these Forest Service actions as 
another example of Federal overreach and a violation of private 
property rights. To this end, we strongly support legislation 
introduced by Representative Scott Tipton (H.R. 3189), which passed the 
House of Representatives on March 3, 2014. This legislation would 
ensure those who hold water rights yet utilize Federal lands through 
BLM or Forest Service permits that their lawfully acquired rights will 
not be abridged and that Federal agencies may not unlawfully use the 
permit process to acquire rights they do not currently possess. Most 
importantly, that legislation does not abridge anyone's rights--those 
of individuals, the states or the Federal Government. It is simply a 
reaffirmation of longstanding Federal policy. We are hopeful that the 
Senate will take up and pass this important legislation.
    Concurrently, the State of Colorado has worked to advance two 
pieces of legislation, H.B. 13-1009 and H.B. 14-1028,\2\ that would 
have prevented the Federal Government from obtaining water rights 
through coercion and placed restrictions on the Federal Government if 
it did obtain water rights. Unlike many other western states, the 
Colorado water courts adjudicate water rights in the first instance 
without any administrative, water rights permitting system, resulting 
in much water rights litigation.\3\ The mere fact that a state would 
move in an attempt to prevent the Forest Service from completing its 
action should show that the Forest Service's actions are concerning.
---------------------------------------------------------------------------
    \2\ http://www.leg.state.co.us/CLICS/CLICS2014A/csl.nsf/
BillFoldersAll?OpenFrameSet.
    \3\ http://www.justice.gov/enrd/3245.htm.
---------------------------------------------------------------------------
    At the same time that the agency sought to take water rights from 
Federal ski area permit holders, the Forest Service introduced its 
proposed Groundwater Directive in the Federal Register on July 31, 
2014. While Forest Service Chief Tom Tidwell claimed, ``The goal is to 
improve the quality and consistency of our approach to understanding 
groundwater resources on National Forest System lands, and to better 
incorporate consideration of those resources to inform agency decision-
making,'' it conveniently included a number of the same provisions 
aimed at transferring privately held water rights to the Federal 
Government and greatly expanding its regulatory control of groundwater, 
which is controlled by the states.
Lack of Legal Authority
    One of our primary criticisms of the proposed Groundwater Directive 
is that the agency lacks legal authority to regulate groundwater in the 
manner proposed by the Forest Service. The Organic Administration Act 
of 1897 (Organic Act) vests the Forest Service with the authority to 
manage surface waters under certain circumstances. The statute provides 
no authority for management of groundwater. Nor does the Multiple-Use 
Sustained-Yield Act of 1960 (MUSYA) provide the agency with authority 
over groundwater. That statute merely provides ``that watershed 
protection is one of five co-equal purposes for which the NFS lands 
were established and are to be administered.'' 2560.01(1)(f). See 
United States v. New Mexico, 438 U.S. 696, 713 (1978).
    The Forest Service cites several statutes, including the Organic 
Act, the Weeks Act and MUSYA, to frame its expansive regulatory view in 
seeking authority to manage groundwater. The agency incorrectly 
interprets the purposes for which water is reserved as a provision of 
the Organic Act. The Organic Act simply authorizes the Forest Service 
to manage the land, vegetation and surface uses. The Act does not 
provide authority to manage or dispose of the groundwater or surface 
waters of the states based on the agency declared ``connectivity.''
    The Weeks Act states, ``The Secretary of Agriculture is hereby 
authorized and directed to examine, locate, and purchase such forested, 
cut-over, or denuded lands within the watersheds of navigable streams 
as in his judgment may be necessary to the regulation of the flow of 
navigable streams or for the production of timber.'' 16 U.S.C.  515. 
The Forest Service inappropriately attempts to use this reference of 
``navigable streams'' to include regulation of groundwater, which is 
not referenced in the Weeks Act.
    The United States Supreme Court has gone to great lengths to bring 
clarity to the scope of the Organic Act's determination that Federal 
authority extends only to prudent management for surface water 
resources. In United States v. New Mexico, the Court defined prudent 
management to:

    (1) ``secure favorable water flows for private and public uses 
        under state law,'' and

    (2) ``furnish a continuous supply of timber for the people.''

    The agency authority is narrowed to proper management of the 
surface to achieve the specific purpose of the Organic Act--not the 
direct management of the groundwater and agency-declared interconnected 
surface waters. MUSYA does not expand the reserved water rights of the 
United States. United States v. New Mexico, 438 U.S. 696, 713 (1978). 
Additionally, the court denied the Forest Service's instream flow claim 
for fish, wildlife and recreation uses. Specifically, the court denied 
the claim on the grounds that reserved water rights for National Forest 
lands established under the Forest Service's Organic Act of 1897 are 
limited to the minimum amount of water necessary to satisfy the primary 
purposes of the Organic Act--conservation of favorable water flows and 
the production of timber--and were not available to satisfy the claimed 
instream flow uses.\4\
---------------------------------------------------------------------------
    \4\ http://www.justice.gov/enrd/3245.htm.
---------------------------------------------------------------------------
    Inexplicably, the Forest Service also points to the Clean Water Act 
as a source of legal authority and direction for the directive. 2560.01 
There is no explanation of how the Clean Water Act applies to this 
directive or how sections 303, 401, 402 or 404 of the Clean Water Act 
(cited in the directive) provide any legal authority to the Forest 
Service to regulate groundwater. The Clean Water Act does not even 
grant the Federal Government jurisdiction over groundwater. At a 
minimum, Federal agencies must provide a modicum of justification for 
any claim of legal authority, particularly when the Forest Service has 
no authority whatsoever to implement the Clean Water Act.
Expansion of Federal Authority through Interconnectivity Clause
    The directive proposed a new standard of interconnectivity 
[2560.03(2)] by proposing to ``manage surface water and groundwater 
resources as hydraulically interconnected, and consider them 
interconnected in all planning and evaluation activities, unless it can 
be demonstrated otherwise using site-specific information.'' Presuming 
that all groundwater and surface waters are interconnected implies the 
agency has authority to manage, monitor and mitigate water resources on 
all NFS lands. This assumption of Federal authority violates Federal 
and state statutes and will ultimately upset water allocation systems 
and private property rights on which western economies have been built. 
In an era of limited Federal budgets, this attempt to expand the reach 
of the agency into individual and state activities is particularly 
inappropriate.
    Whether or not water is ``connected'' is not the sole, or even most 
critical, factor for asserting regulatory authority. The Forest 
Service's attempt to use extremely controversial Clean Water Act 
terminology such as any ``hydrological connection'' to establish its 
authority over water rights is totally misplaced and unlawful. In fact, 
the Supreme Court specifically rejected the ``any hydrological 
connection'' approach to Federal jurisdiction. Rapanos et ux., v. 
United States 547 U.S. 715 (2006).
    Further, the directive expands current Forest Service regulatory 
scope of groundwater resources to a watershed-wide scale, including 
both Forest Service lands and adjacent non-Federal lands. Specifically, 
the new policy states the agency will, ``evaluate and manage the 
surface-groundwater hydrological system on an appropriate spatial 
scale, taking into account surface water and groundwater watersheds, 
which may or may not be identical and relevant aquifer systems,'' and 
``evaluate all applications to states for water rights on NFS lands and 
applications for water rights on adjacent lands that could adversely 
affect NFS groundwater resources, and identify any potential injury to 
those resources or Forest Service water rights under applicable state 
procedures (FSM 2541).'' This is an unprecedented attempt to expand 
Federal authority in approving state-granted water rights.
    With the exception of federally reserved rights that are 
specifically set out either in statute or recognized by the courts, the 
states own and manage the water within their jurisdictions. The manner 
in which states regulate water rights differs substantially, 
particularly between western states, where the appropriation doctrine 
is common, and eastern states where the riparian system is in more 
general use. Farm Bureau supports the present system of appropriation 
of water rights through state law and opposes any Federal vitiation or 
preemption of state water law. Water rights as property rights cannot 
be taken without compensation and due process of law. There is no legal 
or policy basis for the Forest Service to insert itself in this 
regulatory arena by attempting to use the permitting process to 
circumvent state water law or force existing water rights holders to 
relinquish their rights.
    Without clear Congressional authorization, Federal agencies may not 
use their administrative authority to ``alter the Federal-state 
framework by permitting Federal encroachment upon traditional state 
power.'' In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. 
Army Corps of Engineers, 531 U.S. 159 (2001).
    Although SWANCC was decided in the context of the Clean Water Act, 
the legal principle is the same: Federal agencies must have clear 
Congressional direction before altering the balance of Federal and 
state authorities. The Forest Service has none here. It is clear that 
by proposing to manage the groundwater resources and interconnected 
surface waters within the states on a massive watershed basis, the 
Forest Service's proposed directive exceeds the agency's statutory 
authority and seeks to redefine the Federal-state framework. The manner 
in which the directives insert the Forest Service in the evaluation of 
``all applications to states for water rights on NFS lands and 
applications for water rights on adjacent lands'' (FSM 2560.03(6)(f)), 
contravenes this federally established system of deferral to the 
states. The Forest Service cannot and should not act where 
Congressional authority has not been granted to it.
Constitutional Takings Violation
    The directive would authorize actions that would violate the 
takings clause of the United States Constitution. The 5th Amendment 
provides protections for citizens from government takings of private 
property without just compensation. The directive provides that the 
Forest Service would be required to ``obtain water rights under 
applicable state law for groundwater and groundwater-dependent surface 
water needed by the Forest Service (FSM 2540)'' and ``[Require] written 
authorization holders operating on NFS lands to obtain water rights in 
compliance with applicable state law, FSM 2540, and the terms and 
conditions of their authorization.''
    Requiring written authorization for permitted uses including 
livestock grazing on NFS lands provides a vehicle for the agency to 
obtain water rights based on the permitee's agreement to comply with 
the ``terms and conditions of the conditional use authorization.'' 
Under the Forest Service's terms and conditions [FSM 2541.32], the 
agency will now be able to require holders of water rights with 
permitted activities on system lands to comply with the water clause 
and to hold their water rights ``jointly'' with the United States. 
Further, there is no reference in the directive to the government's 
obligation to pay just compensation for the surrender to the government 
of privately held water rights legally adjudicated by the state.
    We believe in the American private, competitive enterprise system 
in which property is privately owned, privately managed and operated 
for profit and individual satisfaction. Any action by government that 
diminishes an owner's right to use his property constitutes a taking of 
that owner's property. We oppose any government entity taking private 
property by adverse possession without just compensation.
    Through statute and years of well-established case law, states have 
developed systems to fairly appropriate often scarce water resources to 
users. Because water is the lifeblood for all farm and ranch 
operations, we are outraged that the Federal Government continues to 
grossly and willfully ignore the established system of water rights, 
even after continued assurances it would respect them.
    On behalf of Farm Bureau and tens of thousands of farmers and 
ranchers in the west who depend on our water rights, I want to thank 
you again for inviting us to testify on this important issue. I will be 
pleased to respond to questions from Members of the Committee.

    The Chairman. Thank you, Mr. Shawcroft. Now I am pleased to 
welcome our third and final panelist for this hearing. Mr. 
Verhines, go ahead, sir. You have 5 minutes.

    STATEMENT OF SCOTT A. VERHINES, P.E., NEW MEXICO STATE 
                     ENGINEER, SANTA FE, NM

    Mr. Verhines. Good morning, Chairman Thompson, Members of 
the Committee. Thank you for the invitation to testify here 
today. As the State Engineer, I hope to provide you with one 
western state's perspective on this issue as the senior water 
management official in New Mexico.
    In the business of water administration in the West, our 
words and the terminologies we use have meaning, and the 
context in which they are used is important. They can raise red 
flags as the Proposed Directive has done here with our agency 
in our state.
    My overarching concern simply put is that the Forest 
Service lacks the authority to manage New Mexico's groundwater 
or to place any conditions on the exercise of private property 
rights to the use of groundwater established under New Mexico 
law. Under New Mexico law, the State Engineer is charged with 
the supervision of all waters, including groundwater within the 
boundaries of the state and the measurement, appropriation, and 
distribution thereof, responsibilities we take very seriously 
and we do all day, every day. Consequently, we will engage 
directly on any apparent assertion of new authority by another 
agency over groundwater or over private holders of groundwater 
rights developed under state law.
    The Proposed Directive begins with the stated objective to 
manage groundwater underlying NFS lands cooperatively with the 
states, suggesting that the Service has equal authority with 
the states to manage groundwater. None of the statutes or other 
authorities cited in the Proposed Directive provides such 
authority.
    The term NFS groundwater resources repeated frequently 
throughout the Proposed Directive is ambiguous. It could refer 
to groundwater rights that the Forest Service may hold or 
suggest all state groundwater resources beneath Forest Service 
lands.
    The Forest Service also lacks any authority to regulate the 
diversion and use of groundwater or to impose conditions on the 
exercise of rights to use groundwater developed under New 
Mexico law. While the Forest Service does have the authority to 
include conditions to protect Federal resources in special use 
permits governing the use of Federal lands, New Mexico's 
groundwater is not such a resource.
    Any Proposed Directive should state unequivocally that all 
rights to the diversion and use of groundwater established 
under state law are private property rights that must be 
recognized by the Forest Service and may not be restricted or 
limited by provisions in any special use permit by the Service. 
The Service also has no authority over the process by which any 
state issues groundwater rights, and the Service therefore may 
not dictate how the New Mexico water permitting process 
proceeds or when it begins. New Mexico system of water rights 
administration provides water right owners with certainty upon 
which they can make appropriate technical and financial 
decisions. Under New Mexico water law, once a water right is 
established by beneficial use, it can only be lost by common-
law abandonment, statutory forfeiture, or failure to comply 
with permit conditions. The adjudication or permitting of water 
rights under New Mexico law affords the Service full 
opportunity to challenge the nature and extent of groundwater 
rights that originate within National Forest lands.
    As a pertinent example, and we are dealing with this one 
today, the Village of Ruidoso, New Mexico, is already 
experiencing an attempt by the Forest Service to limit the 
amount of water they may divert under existing groundwater 
rights for wells located within National Forest lands. The 
village is currently in the process of renewing its special use 
permit for municipal wells within the Lincoln National Forest. 
The Service has proposed to dramatically cut back the quantity 
of water that the village may divert and use in order to 
protect aquatic habitats, streamside recreational uses, and 
other water uses that are not recognized as part of the Lincoln 
National Forest Federal reserve water right.
    I am particularly concerned about the Proposed Directive's 
instruction to Forest Service officials to assert claims for 
Federal reserve water rights to groundwater in state water 
rights' adjudications and administrative proceedings. To our 
knowledge, no Federal court has ever recognized a Federal 
reserved right to groundwater.
    I urge the Service to work with my office to establish or 
obtain under New Mexico State water law whatever groundwater 
rights are necessary to support the Service's activities.
    While we can appreciate the Forest Service's interest in 
the protection of groundwater resources, for over 5 decades New 
Mexico has developed an exclusive and a comprehensive 
administrative process to conjunctively manage our state's 
surface water and groundwater.
    In conclusion, in the business of water administration in 
the West, our words and terminologies have meaning, and they 
are a very important meaning and they have potential 
consequences. I urge the Forest Service to withdraw the 
Proposed Directive and to address through New Mexico State 
water law the Service's interest in protecting groundwater 
resources within our state. Mr. Chairman, thank you for the 
opportunity to be here today.
    [The prepared statement of Mr. Verhines follows:]

    Prepared Statement of Scott A. Verhines, P.E., New Mexico State 
                         Engineer, Santa Fe, NM
    Thank you for the opportunity to testify today regarding the U.S. 
Forest Service's Proposed Directive on Groundwater Resource Management, 
Forest Service Manual 2560, published on May 6th in the Federal 
Register. As the New Mexico State Engineer, I am able to provide you 
with our perspective as the state's top water management official on 
this proposed directive.
    My principal concern regarding the Proposed Directive is that the 
United States Forest Service lacks authority to manage New Mexico's 
groundwater or to place any conditions on the exercise of property 
rights to the use of groundwater established under New Mexico law. 
Under well-settled Federal and state law, the State of New Mexico has 
primary and exclusive authority over all groundwater within New 
Mexico's borders. Our state Legislature has delegated to the State 
Engineer the authority to implement the New Mexico law of prior 
appropriation for the state's waters, including groundwater. 
Nevertheless, despite New Mexico's long-standing primacy over 
groundwater within the state, the Proposed Directive appears to be 
based on the mistaken premise that the Forest Service has authority to 
manage groundwater and purports to allow Forest Service officials to 
impose conditions or otherwise limit the exercise of state-based water 
rights on Forest Service lands within New Mexico.
    The 1877 Desert Lands Act severed all non-navigable waters in the 
public domain from the land itself and left those waters to the control 
of the territories and states for appropriation for beneficial use. The 
U.S. Supreme Court in the 1935 California Oregon Power Co. case 
confirmed that after the 1877 Act all non-navigable waters, including 
groundwater, were subject to the plenary control of the territories and 
their successor states. Federal law has been clear for nearly a century 
that the states have primary and exclusive authority over the 
allocation, administration, and development of all groundwater within 
their borders.
    The New Mexico water code declares all undergroundwater within the 
state to belong to the public and to be subject to appropriation for 
beneficial use. NMSA 1978,  72-12-1 (2003). Our Supreme Court has 
ruled that the State of New Mexico owns all surface water and 
groundwater within its boundaries:

          All water within the state, whether above or beneath the 
        surface of the ground belongs to the state, which authorizes 
        its use and there is no ownership in the corpus of the water 
        but the use thereof may be acquired and the basis of such 
        acquisition is beneficial use . . . . The state as owner of 
        water has the right to prescribe how it may be used.

State ex rel. Erickson v. McLean, 62 N.M. 264, 271, 308 P.2d 983, 987 
(1957); see also Holguin v. Elephant Butte Irrigation Dist., 91 N.M. 
398, 402, 575 P.2d 88, 92 (1977) (``[W]ater belongs to the state which 
authorizes its use. The use may be acquired but there is no ownership 
in the corpus of the water''); Tri-State Generation and Transmission 
Ass'n, Inc. v. D'Antonio, 2012-NMSC-039,  14 (``a water right is a 
limited usufructuary right'').
    Under New Mexico law, the State Engineer is charged with the 
supervision of all waters, including groundwater, within the boundaries 
of the state, and the measurement, appropriation, and distribution 
thereof. NMSA 1978,  72-2-1 (1982). The State Engineer seeks to 
judiciously and consistently manage the state's surface and groundwater 
resources and administer the rights to use those resources. The State 
Engineer administers water rights based upon Federal and state court 
decrees, permits and licenses issued by the State Engineer, and 
declarations of water rights filed with the State Engineer. As the 
state official to whom the New Mexico Legislature has delegated broad 
authority over New Mexico's water, including groundwater beneath 
Federal lands, the State Engineer has a particular interest in any 
apparent assertion of new authority by the Forest Service over New 
Mexico groundwater or over private holders of groundwater rights 
developed under state law.
    The Proposed Directive begins with the stated objective ``[t]o 
manage groundwater underlying NFS lands cooperatively with states . . . 
.'' Section 2560.02(1). This statement suggests that the Forest Service 
has equal authority with the states to manage groundwater. In 
actuality, the Forest Service lacks any authority to manage 
groundwater, let alone authority co-equal with that of the states. None 
of the statutes or other authorities cited in Section 2560.01 provides 
such authority.
    The term ``NFS groundwater resources,'' repeated frequently 
throughout the Proposed Directive (see, e.g.,  2560.02(2) and (3); 
2561(2)), demonstrates the ambiguity and confusion of authority 
underlying the Directive. This term is not defined. It could refer to 
groundwater rights that the Forest Service may hold, or to all state 
groundwater resources beneath Forest Service lands. This confusion is 
caused by the possessive modifier ``NFS,'' which incorrectly implies 
Forest Service ownership of or authority to manage groundwater 
underlying Forest Service lands. This, of course, is directly contrary 
to the recognition by Congress and the Supreme Court that the states 
own and have exclusive authority to manage and regulate all groundwater 
within their borders. Unless the Forest Service obtains a right to 
divert and use New Mexico groundwater under state law, it has no right 
to use or claim any ownership interest in the groundwater resources 
underlying Forest Service lands in New Mexico simply by virtue of its 
ownership of those lands. As a result, the term ``NFS groundwater 
resources'' should be specifically defined to include only those 
groundwater resources in which the Forest Service has obtained a legal 
interest under state water law.
    The Forest Service also lacks any authority to regulate the 
diversion and use of groundwater or to impose conditions on the 
exercise of rights to use groundwater developed under New Mexico law. 
Nonetheless, the Proposed Directive appears based on the assumption 
that the Forest Service has such authority. For example, Section 
2562.1(3) directs Forest Service officials, when issuing or reissuing 
an authorization, to require implementation of water conservation 
strategies to limit total water withdrawals as deemed appropriate by 
the authorized officer. In addition, the Proposed Directive asserts 
that the Forest Service has the continuing authority to impose 
conditions on the exercise of state law-based groundwater rights 
developed on Forest Service lands. Specifically, Section 2563.7(2) 
directs that any new or reissued authorization involving a groundwater 
well provide for modification of the authorization at the sole 
discretion of the authorized officer if deemed necessary to prevent 
groundwater withdrawals from significantly reducing the quantity of 
surface or groundwater on NFS lands.
    These provisions would interfere with the ability of water right 
owners to exercise the property rights to the use of groundwater that 
they have established under New Mexico law. While the Forest Service 
has the authority to include conditions to protect Federal resources in 
special use permits governing the use of Federal lands, New Mexico's 
groundwater is not such a resource. The assertion in the Proposed 
Directive of continuing authority for the Forest Service to reevaluate 
and impose additional restrictions on the exercise of New Mexico 
groundwater rights threatens to undermine the finality of water rights 
decisions made by the courts and the State Engineer by requiring water 
right owners to continue to submit to the Forest Service in order to 
exercise those property rights. The Proposed Directive should state 
unequivocally that all rights to the diversion and use of groundwater 
established under state law are property rights that must be recognized 
by the Forest Service and may not be restricted or limited by 
provisions in any special use permit issued by the Service.
    New Mexico's system of water rights administration provides water 
right owners with certainty upon which they can make appropriate 
financial decisions. Under New Mexico water law, once a water right is 
established by beneficial use it can only be lost by common law 
abandonment, statutory forfeiture, or failure to comply with permit 
conditions. Contrary to Federal and state law, the Proposed Directive 
attempts to give the Forest Service the power through its periodic 
special use permitting process to modify or even cancel the ability of 
a groundwater right owner to exercise their property right. Under the 
Proposed Directive, the right to continue to divert and use groundwater 
would be dependent not just upon beneficial use, but also upon periodic 
review by Forest Service officials. This would create instability and 
uncertainty that would be unacceptable for New Mexico and its 
groundwater rights owners.
    Provisions such as Sections 2562.1(3) and 2563.7(2) also would 
interfere with the State Engineer's exclusive authority to administer 
property rights to New Mexico groundwater. Policy directives, 
especially those that seek to impose additional administrative 
processes relating to groundwater, have a direct impact on the State 
Engineer's administration and management of water within New Mexico. 
The Proposed Directive attempts to establish an additional layer of 
administrative oversight over groundwater that would duplicate parts of 
the State Engineer's existing comprehensive system of administration 
for groundwater rights. This would generate uncertainty and confusion 
and undermine New Mexico's primary and exclusive authority over 
groundwater.
    Section 2563.2(1) provides: ``[w]hen a state-issued water right or 
one or more state or local approvals are needed for a water 
development, the process for securing state water permits, licenses, 
registrations, certificates, or rights should proceed concurrently with 
the Forest Service process for authorizing use and occupancy of NFS 
lands for a water development.'' The Forest Service has no authority 
over the process by which any state issues groundwater rights, and the 
Service may not dictate when the New Mexico water permitting process 
begins or how it proceeds.
    The adjudication or permitting of water rights under New Mexico law 
affords the Forest Service the full opportunity to challenge the nature 
and extent of groundwater rights that originate within National Forest 
lands. The water right determinations that have been made by the 
adjudication courts or by final determinations of the State Engineer 
are final, and can only be modified by reopening the appropriate court 
proceedings or the State Engineer's administrative process. The 
Proposed Directive would impermissibly undermine the finality of water 
rights determinations made under New Mexico law.
    New Mexico is already experiencing an attempt by the Forest Service 
to limit the amount of water that a municipality may divert under 
existing groundwater rights for wells located within National Forest 
lands. The Village of Ruidoso, New Mexico is currently in the process 
of renewing its special use permit for municipal wells within the 
Lincoln National Forest. The Forest Service has proposed additional 
pumping restrictions that would dramatically cut back the quantity of 
water that the Village could divert and use under its existing 
groundwater rights. The Service has proposed these new restrictions in 
order to protect aquatic habitat, streamside recreational uses, and 
other water uses that are not recognized as part of Lincoln National 
Forest's Federal reserved water right. This attempt to impose new 
limitations on the quantity of water rights that were previously 
adjudicated by the courts and permitted by the State Engineer threatens 
the finality of those judgments and decisions, and undermines my 
authority to administer water rights within New Mexico.
    Finally, I am also particularly concerned about the Proposed 
Directive's instruction to Forest Service officials to assert claims 
for Federal reserved water rights to groundwater in state water rights 
adjudications and administrative proceedings. No Federal court has ever 
recognized a Federal reserved right to groundwater. For the Forest 
Service to begin asserting such claims now would be especially 
controversial and highly disruptive to New Mexico's long-running 
efforts to conclude the adjudication of water rights within the state. 
I urge the Service to work with my office to establish or obtain under 
New Mexico state water law whatever groundwater rights are necessary to 
support the Service's activities.
    While New Mexico appreciates the interest of the Forest Service in 
the protection of groundwater resources, over the past half century New 
Mexico has developed an exclusive and comprehensive administrative 
process to conjunctively manage our state's surface water and 
groundwater. All groundwater within the state is subject to the State 
Engineer's jurisdiction and administrative process. New Mexico has been 
a leader among the western states in the prevention of increased 
depletions to stream flows caused by groundwater withdrawals. My 
decisions regarding the administration of groundwater across the state 
are guided by the technical expertise of our team of highly respected 
hydrologists employed by our agency's Hydrology Bureau.
    In conclusion, I urge the Forest Service to withdraw the Propose 
Directive and to address through New Mexico state water law the 
Service's interest in protecting groundwater resources within New 
Mexico. Thank you for the opportunity to present this testimony to the 
Committee.

    The Chairman. Well, thank you very much. Thank you to all 
the witnesses. I guess I will recognize myself first. I am very 
appreciative of the Members of the Subcommittee. We had a good 
turnout for this hearing. I think that shows the interest, the 
intensity of the interest. Also I know that we have rather 
intense schedules here. So the fact that we did have a 
majority, large majority of Members on both sides at this 
hearing is very much appreciated.
    Mr. Verhines, I want to start with you. Just a couple of 
questions for each of our three witnesses. As a state official, 
how do you suggest that the United States Forest Service would 
work in better cooperation with the states?
    Mr. Verhines. Mr. Chairman, thank you for that question. We 
have a lot of interaction with the Forest Service around New 
Mexico over a wide variety of water and watershed health 
issues, much of which you have talked about this morning. The 
wildfires have been devastating in New Mexico over many years. 
I think as I suggested in my testimony is that we have great 
opportunity to work on issues. Within the state's water law 
process, there is ample opportunity for the Forest Service to 
interact with other water right holders. We have a process in 
place to do that. We have ongoing meetings and dialogue. I 
think a Memorandum of Agreement, Memorandum of Understanding 
that came up earlier in the testimony today is a great 
opportunity for us to get on a similar page.
    The Chairman. Very good. Now, you represent a significant 
portion of--let me see here. Let me go to Mr. Willardson next.
    You state in your testimony that the Directive requires 
special use permit holders to meter and report their 
groundwater use which may be expensive and could run counter to 
some state laws. Can you elaborate on the statement, and is 
this even a feasible or realistic requirement?
    Mr. Willardson. Metering wells can cost anything from a few 
hundred dollars to over a thousand dollars or more, and that is 
a challenge and many states do not have authority to require 
that under state law, and we would question the Forest 
Service's ability to be able to do that as well. I would point 
out, too, that domestic wells are exempted in many cases from 
state requirements. There are other areas and the groundwater 
law varies by state. But in some areas such as Arizona, the 
overlying landowner does own the subsurface rights as far as 
groundwater and can pump groundwater.
    So the variation in the state laws between surface and 
groundwaters is something that is important. It needs to be 
noted as part of the process and again pointing out that the 
Forest Service can apply for rights in addition to whatever 
reserve rights it may have for its primary purposes and that 
that is an--even that, the assertion of reserve rights is a 
process that goes through a state adjudication. And that can be 
very contentious. And if the Forest Service has needs, there 
are ways to meet those needs. You mentioned already the Montana 
Compact that looks at in-stream flows and other issues. 
Specific to groundwater resources, I would provide an example 
in the State of Utah that involves not the Forest Service but 
the Park Service in Zion National Park. And one of the 
features, there are weeping walls from the sandstone that are 
fed by upstream groundwater. And rather than claim a reserve 
right, the Park Service working with the state reached an 
agreement where the state will limit future groundwater 
development in order to protect the park resources which 
obviously are important to all of us.
    The Chairman. Thank you. Mr. Shawcroft, you were 
particularly adamant on the point that the Forest Service does 
not have the legal authority to move forward with this 
Directive under the Clean Water Act or any other existing law. 
In this context, can you discuss some of the key court 
decisions concerning water use over the past decade or so?
    Mr. Shawcroft. I think there are certainly the cases that 
have been decided by the Supreme Court regarding--waters of the 
United States are reflective of what extension there is trying 
to be forced as far as Federal jurisdiction over water rights. 
What concerns me in particular is some of the things that have 
happened recently regarding the Forest Service and their 
extension of authority over water rights. A number of years ago 
the Grand Mason Christian Association, which has a campground 
in Colorado, had a well that had gone dry. They needed a 
replacement well. They were forced by the Forest Service as a 
condition of their special use permit and renewal to place that 
well in the name of the Forest Service. Similar cases occurred 
as have been mentioned many times today about the ski resorts. 
There in fact have been ski resorts in Colorado that as a 
condition of their renewal of those special use permits again, 
that they sign that water right over to the Forest Service. 
This is definitely a tremendous concern, and it appears to me 
that there is definitely a conflict of vision of what these 
water rights are.
    In the Colorado and certainly in much of the western states 
as has been mentioned, a water right is a property right. It is 
a personal property right, and in fact, it is tied to the 
beneficial use of that water in the State of Colorado. When 
that beneficial use of that water for that particular 
beneficial use is no longer employed, used, in that manner, 
that water right is not then automatically available to be used 
for some other public good. In Colorado, as I mentioned in many 
western states, it is not for the public to decide how that 
water right is used. Tremendous distinction and tremendous 
important distinction of the difference between a water right 
and the water itself, recognizing in the State of Colorado, 
even the Constitution of the State of Colorado says that the 
water belongs to the citizens, but the right to put that use to 
beneficial use and because of the scarcity of water in the 
West, that being put to beneficial use is incredibly important. 
That is why we have the prior appropriation doctrine, that 
those who put that water to use first have the continued first 
right to put that in use.
    I am sorry if that doesn't seem to address exactly the 
Court decisions, but those Court decisions have come through 
our water court system in the State of Colorado and certainly 
in many states to the West.
    The Chairman. Very good. Thank you. Thank you to all three 
of you, gentlemen. I very much appreciate your taking the time 
and the difficulty it takes to come to the capital city to 
provide testimony. I very much appreciate it. I would ask that 
if Members of the Committee have additional questions that they 
could forward, if you would consider responding to those, and 
that would be very much appreciated. And it would----
    Mr. Shawcroft. We would welcome that opportunity, Mr. 
Chairman.
    The Chairman.--help us as we continue to provide oversight 
and look at this. And before we adjourn, I want to thank our 
witnesses. I also want to take the opportunity to thank Chief 
Tidwell. I am not surprised but very appreciative of the fact 
that he stayed for this second panel because I think that is 
reflective of the Chief's dedication to try to make the right 
decisions and to get information, we hope new information. So 
Chief, thank you very much for taking the time to do that. It 
is greatly appreciated.
    Under the rules of the Committee, the record of today's 
hearing will remain open for 10 calendar days to receive 
additional material and supplementary written responses from 
witnesses to any questions posed by a Member. This Subcommittee 
on Conservation, Energy, and Forestry hearing is now adjourned.
    [Whereupon, at 12:01 p.m., the Subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]
                          Submitted Questions
Questions Submitted by Hon. Glenn Thompson, a Representative in 
        Congress from Pennsylvania
Response from Thomas L. Tidwell, Chief, U.S. Forest Service, U.S. 
        Department of Agriculture
December 17, 2014
  Hon. Glenn Thompson,
  Chairman,
  Subcommittee on Conservation, Energy, and Forestry, House Committee 
    on Agriculture,
  Washington, D.C.

    Dear Chairman Thompson:

    Enclosed please find the responses to the questions for the record 
submitted by the Subcommittee on Conservation, Energy, and Forestry 
following the September 10, 2014, oversight hearing on ``To Review the 
Forest Service Proposed Groundwater Directive.''
    If you have any additional questions, please contact Jacqueline 
Emanuel, Forest Service, Legislative Affairs Specialist at [Redacted] 
and [Redacted].
            Sincerely,
            
            
Douglas W. Crandall,
Director, Legislative Affairs.
                               attachment
    Question 1. Given the Forest Service statement that this proposed 
directive would establish new policies and procedures, why didn't the 
agency propose a regulation using the Administrative Procedure Act 
rather than this directive? What are the implications of the two 
approaches?
    Answer. See response to Question 2.

    Question 2. Given the USFS statement that this proposed directive 
would establish new procedures, and that it appears to impose new 
requirements on authorization holders, why didn't the agency propose a 
regulation using the Administrative Procedure Act rather than this 
directive? What are the implications of the two approaches?
    Answer. When an agency such as the Forest Service is establishing 
its own internal procedures relating to managing public property, the 
Administrative Procedures Act (APA) does not require the agency to do 
so through formal regulations. (5 U.S.C. 553(b)(B)). When regulations 
are not specifically required by the APA or other agency statutes or 
regulations, the Forest Service has the discretion to develop either 
directives or regulations. Without a controlling requirement, existing 
agency regulations (36 CFR 200.4(b)) indicate that the directives 
system is the appropriate mechanism to provide standards, criteria, and 
guidelines for Forest Service employees to carry out agency activities. 
However, the Forest Service has fully complied with the APA for this 
directive.
    The proposed groundwater directive is intended to update internal 
policies and procedures to result in a more consistent, credible, 
predictable, and transparent approach to addressing activities and 
actions that relate to or have a strong likelihood of significantly 
affecting groundwater resources on National Forest System (NFS) lands. 
Though the internal policies and procedures have the potential to 
affect how third parties interact with the agency and could result in 
additional terms or conditions to potential future authorizations 
received by third parties, they are primarily structured around 
improving the agency's own actions that involve or could significantly 
affect groundwater. Thus, the Forest Service concluded that a directive 
was the appropriate mechanism.
    However, the National Forest Management Act (NFMA) requires that 
the Secretary of Agriculture provide adequate notice and an opportunity 
for the public to comment on the formulation of standards, criteria, 
and guidelines applicable to Forest Service programs (16 U.S.C. 
1612(a)). To address NFMA's public notice and comment requirement, the 
Forest Service has decided to follow APA requirements for informal 
rulemaking, including publishing a proposed directive in the Federal 
Register for public comment, addressing the relevant comments, and 
publishing a final directive in the Federal Register prior to 
implementation.

    Question 2a. What new or additional requirements does this proposed 
directive impose on entities seeking special use authorizations on NFS 
lands?
    Answer. The proposed directive does not impose new or additional 
requirements on entities applying for special use authorizations (SUAs) 
on NFS lands. Currently, the Forest Service uses the criteria set forth 
at 36 CFR 251.54 to determine whether or not to accept a proposal for a 
specified use of National Forest System land. The proposed directive 
does not change or add to those criteria; however, should the Forest 
Service choose to do so in the future, the agency would follow 
established procedures for amending the directive. However, when 
entities propose uses of NFS land that involve or could significantly 
affect groundwater, the application of these existing criteria by NFS 
units around the country could be more consistent. Though the local 
circumstances vary across the NFS units, the approach to evaluating the 
requests should be consistent. The proposed directive is intended to 
ensure a more consistent approach to processing requests for SUAs that 
may involve or significantly affect groundwater by (1) clarifying the 
kinds of information NFS staff should gather and review, and (2) 
recommending an approach to authorizing specific activities once a SUA 
application has been approved. However, to the extent that NFS units 
currently apply the existing criteria in an inconsistent manner, the 
proposed directives may lead to changes in how the units operate.

    Question 2b. Will the new requirements for special use 
authorizations increase the time it takes the USFS to renew or issue 
new authorizations?
    Answer. The majority of currently authorized special uses do not 
directly involve or significantly affect groundwater. As explained 
above, the proposed groundwater directive does not change the 
authorities or responsibilities of Forest Service decision-makers with 
respect to special use authorizations. Instead, the proposed directive 
seeks to ensure that NFS units apply existing authorities in a more 
consistent manner. Existing authorities already require agency decision 
makers to evaluate and consider the potential effects of a proposed SUA 
on NFS resources and non-NFS resources, including groundwater. However, 
NFS units' evaluation and consideration of the potential effects on 
groundwater could be more consistent. Since the current approach to 
evaluating groundwater effects could be more consistent, it is 
difficult to accurately determine whether and how much the proposed 
directive would increase the time necessary to issue new or renewed 
authorizations. However, it is also possible that adopting a more 
consistent approach may actually decrease the time necessary to issue 
authorizations in many cases.

    Question 2c. Will the USFS develop guidance to assist applicants 
with new requirements?
    Answer. The Forest Service currently works with proponents of new 
or renewed SUAs to understand their proposals and provide guidance 
regarding the process. The Forest Service will continue this approach 
of working with proponents under the proposed directive. Since the 
majority of currently authorized special uses do not directly involve 
or significantly affect groundwater, the Forest Service does not 
currently anticipate a need to develop special written guidance for 
applicants related to this proposed directive.

    Question 3. Could the proposed directive impact current practices 
regarding the discharge of produced water from coalbed methane 
operations?
    Answer. The proposed groundwater directive would not change any of 
the existing requirements concerning the discharge of produced water 
from coalbed methane (CBM) or other oil and gas operations on National 
Forest System lands. Produced water from CBM or other oil and gas 
operations can be managed in several different ways, including 
discharge to the ground surface, to holding ponds, to natural channels, 
to the subsurface through injection wells or infiltration galleries, 
and evaporation. In general, the discharge of produced water from CBM 
or other oil and gas operations to surface water or into the subsurface 
is regulated under the Clean Water Act or the Safe Drinking Water Act, 
respectively, by states, Tribes, or EPA, depending on the location and 
whether or not the jurisdiction has been authorized to implement these 
programs. The discharge may also be separately regulated by states 
under state statutes.
    In addition to any required Clean Water Act or Safe Drinking Water 
Act authorizations, when an operation accesses leased federally-owned 
minerals, the Bureau of Land Management must also authorize any 
discharges to the surface or subsurface on National Forest System 
lands, with approval from the Forest Service if additional surface 
disturbance is involved. If the produced water discharge from an 
operation accessing federally-owned minerals is located on NFS land 
outside the lease boundary, the Forest Service may need to separately 
authorize the discharge and would need to account for potential effects 
on groundwater resources from the discharge.
    When the Forest Service has responsibility to review or issue an 
authorization for a produced water discharge, the proposed groundwater 
directive would require the Forest Service to address the potential 
effects on groundwater resources from the discharge and ensure that the 
authorization includes a provision for monitoring affected resources. 
Additionally, when a new authorization would include discharging water 
to underground injection wells larger than 4", the proposed directive 
would require the Forest Service to include provisions for metering and 
reporting the volume of water discharged.

    Question 4. Under the directive, could the Forest Service reduce 
access to a water right if a proposed activity might adversely impact 
NFS groundwater resources? Does the directive propose changes from 
current practice?
    Answer. The proposed directive does not affect the ownership of 
valid existing water rights. Under existing authorities, the Forest 
Service is responsible for managing National Forest System land uses. 
Water diversion facilities on NFS land require an authorization for the 
use of NFS land. Under section 505 of the Federal Land Policy 
Management Act, the Forest Service is required to attach terms and 
conditions to land use authorizations involving impoundment, storage, 
transportation, or distribution of water to protect NFS lands and 
resources, protect lives and property, and a number of other factors. 
The proposed groundwater directive does not change those existing 
requirements.

    Question 5. You state that the USFS plans to develop a framework to 
comprehensively evaluate water resources. What is the timeline for 
these plans, and what do these plans look like?
    Answer. Congress directed the Forest Service to manage National 
Forest System lands to secure favorable conditions of water flow 
(Organic Administration Act of 1897), for navigable stream protection 
(Weeks Act of 1911), and to mitigate floods, conserve surface and 
subsurface moisture, and protect watersheds (Bankhead-Jones Act of 
1935). In addition, Congress provided subsequent direction to the 
agency regarding water, watersheds, and the management of those 
resources in a number of statutes, including the Multiple-Use 
Sustained-Yield Act of 1960, the National Forest Management Act of 
1976, and the Federal Land Policy and Management Act of 1976.
    Water on NFS lands is important for many reasons, including 
resource stewardship, domestic use, and public recreation. Today, water 
from National Forests and Grasslands contributes to the economic and 
ecological vitality of rural and urban communities across the nation, 
and those lands supply more than 60 million Americans with clean 
drinking water. NFS lands alone provide 18 percent of the nation's 
available freshwater, and over \1/2\ the freshwater in the West. 
Congress recognized the importance of these lands and delegated to the 
Forest Service the critical task of helping to ensure that abundant, 
clean, freshwater continues to be available from NFS lands into the 
future. As parts of the country experience prolonged and severe 
drought, the water resources of NFS lands are as critical as ever to 
communities, agriculture, and ecosystems.
    To address these responsibilities, the Forest Service is working on 
a comprehensive framework for water. The goal of the framework will be 
to focus land management on NFS lands towards building resilient 
ecosystems that protect and sustain water resources on and under those 
lands and the livelihoods that depend on them. The framework will 
emphasize the importance of shared responsibilities for the 
sustainability of these water resources with states, Tribes, and other 
Federal agencies. The Forest Service will consult with Congress, 
states, Tribes and interested groups as soon as a working draft is 
completed.

    Question 6. How do you intend to emphasize cooperation and support 
with the states who push back?
    Answer. The proposed groundwater directive emphasizes the 
importance of cooperation with states. States have broad responsibility 
for the allocation of water. Many states and Tribes have also been 
delegated the authority to implement Clean Water Act and Safe Drinking 
Water Act programs. In addition, many states have other statutes that 
regulate activities that take place on National Forest System lands, 
including mining, oil and gas extraction, and remediation of spills and 
other contamination. The Forest Service has and will continue to 
respect those authorities. The proposed groundwater directive does not 
change that relationship.
    The proposed groundwater directive is intended to make the Forest 
Service a better partner with the states and tribes in the 
characterization, monitoring, and protection of groundwater on NFS 
lands. Currently, the Forest Service could be more consistent in its 
responses from unit to unit across the country when its own activities 
or those proposed by third parties have the potential to substantially 
affect groundwater resources on NFS lands. That creates a level of 
uncertainty for the states, tribes, and project proponents that can 
result in adverse outcomes for all involved. Differences in local unit 
interpretations may result in some projects being appealed or litigated 
resulting in adverse decisions that delay or otherwise adversely affect 
projects important to the local community. Misunderstanding of 
requirements may lead to some projects being approved with inadequate 
safeguards that result in the contamination or disruption of important 
water resources. The proposed groundwater directive is intended to 
update internal policies and procedures to result in a more consistent, 
credible, predictable, and transparent approach to addressing 
activities and actions that relate to or have a strong likelihood of 
affecting groundwater resources on National Forest System lands.
    The proposed directive explicitly recognizes the role of states in 
allocating water and states and tribes in regulating water quality. It 
requires Forest Service decision makers to work cooperatively with 
those entities. It is the agency intent that nothing in the 
implementation of our stewardship responsibilities infringes on state 
and tribal allocation and water quality authorities. The agency will 
not move forward until we are confident that we have identified and can 
address the concerns raised through the public comment and tribal 
consultation processes. The agency will take the time necessary to 
engage with representatives of states and tribes that have commented on 
the proposed groundwater directive to make sure we fully understand the 
nature of their concerns.
    The following seven questions were received via an e-mail from 
Committee Staff for the Subcommittee on Conservation, Energy and 
Forestry Chairman Glenn Thompson:
    Question 7. This directive appears to establish groundwater 
resource protection as a means to either deny certain activities or to 
impose certain mitigation measures. Can you provide examples of what is 
meant by ``mitigation''?
    Answer. Under section 505 of the Federal Land Policy Management 
Act, the Forest Service is required to attach terms and conditions to 
land use authorizations involving impoundment, storage, transportation, 
or distribution of water to protect NFS lands and resources, protect 
lives and property, and a number of other factors. The proposed 
groundwater directive does not change those existing requirements. 
However, the proposed directive clarifies that appropriate terms and 
conditions need to be included in authorizations that involve 
groundwater. Those terms and conditions could include mitigation 
measures that minimize the potential impacts from the proposal as 
submitted. Viable potential mitigation measures will depend on the 
circumstances of each activity, but, for example, could include design 
changes to include a liner on a proposed storage area to limit the 
potential of contamination entering the groundwater, adjustment of the 
location of a proposed well to minimize effects on a wetland, or 
installation of monitoring equipment to track the impacts from a 
proposed septic system.

    Question 8. What types of new environmental analyses might be 
required for timber permitting and basic forest management activities?
    Answer. Under the National Environmental Policy Act, the Forest 
Service has the responsibility to assess and disclose the impacts from 
all of its activities, including timber harvest and other forest 
management activities, on the quality of the human environment, which 
includes water resources. The proposed groundwater directive does not 
change that responsibility. While timber harvesting and other basic 
forest management activities can have an effect on water resources, the 
Forest Service has long taken water resources into account in the 
design of its harvest and other forest management activities and in the 
required analyses of their potential effects. Therefore, the agency 
does not anticipate any substantial changes in effects analyses for 
most timber harvesting and basic forest management activities in 
response to the proposed directive.

    Question 9. What types of new environmental analyses might be 
required for water wells and pipelines?
    Answer. Under the National Environmental Policy Act, the Forest 
Service has the responsibility to assess and disclose the impacts from 
all of its activities and those being authorized on National Forest 
System lands, including for water wells and pipelines, on the quality 
of the human environment. The proposed groundwater directive does not 
change that responsibility or require additional analyses.

    Question 10. Does the Forest Service have the technical capacity to 
evaluate these proposals in a timely manner? Specifically in regard to 
the report that there are only four groundwater scientists employed at 
the agency? Does that mean that all of the special use authorization 
applications (or reauthorization applications) need to go through those 
four personnel to be evaluated? If the Forest Service needs to use 
contractors, what would be some of the pros and cons of using them?
    Answer. In most cases, trained FS staff on the individual units 
will have the capacity to evaluate the effects of potential new or 
renewed authorizations on groundwater resources, using existing and 
planned technical guidance. In a small subset of situations, the 
activity or action involved or the physical setting will be 
sufficiently complex that the local specialist will need the assistance 
of more highly trained groundwater personnel. The Forest Service 
currently has five positions dedicated to providing that support across 
the country. In addition, the Forest Service has the ability to 
contract for additional expertise when needed to meet particular needs. 
In those instances, the existing staff personnel can support the local 
units by assisting with aspects of the contract development and 
oversight and review of work products. This is a model that the Forest 
Service has used in other circumstances where highly specialized 
technical expertise is needed, such as in the case of fossil resources 
(paleontology) and cave resources (speleology).
    Of course, there can be challenges in using contractors to address 
aspects of the environmental assessment process, but there can also be 
substantial benefits if implemented appropriately. The Forest Service 
has utilized contractors to provide groundwater expertise in the past 
when the situation warranted. The proposed groundwater directive does 
not change that option. However, the proposed directive may help 
clarify when additional expertise is needed and the types of analyses 
that may be needed to be completed during the planning and 
environmental analysis phases, and help avoid the delays that can 
result from litigation determining that the analyses completed were 
inadequate.

    Question 11. Under the proposed directive, the Forest Service plans 
to consider groundwater impacts as part of the process for leasing 
minerals. How might this impact oil and gas leases?
    Answer. The Bureau of Land Management (BLM) issues oil and gas 
leases for federally-owned minerals on National Forest System lands 
with the concurrence of the Forest Service. The Forest Service conducts 
its own leasing analysis before concurring with a BLM leasing decision. 
Under NEPA, the Forest Service is required to evaluate and disclose the 
potential effects of reasonable development scenarios on all resources, 
including groundwater, through the leasing analysis. The proposed 
groundwater directive does not change that responsibility. The proposed 
directive also cannot and does not expand the authority of the agency 
beyond its existing authorities. With a clearer approach to addressing 
groundwater resources in the context of potential leasing, the Forest 
Service can be a better partner to BLM and the states and be better 
positioned to work with proponents and other interested parties to 
provide for development of the nation's critical energy resources while 
protecting water resources.

    Question 12. Under the directive, could the Forest Service reduce 
access to a water right if a proposed activity might adversely impact 
NFS groundwater resources? Does the directive propose changes from 
current practice?
    Answer. The proposed directive does not affect the ownership of 
valid existing water rights. The proposed groundwater directive does 
not change existing Forest Service authorities concerning access to 
state issued water rights on National Forest System land. Access to a 
state water right on NFS land requires an authorization for the use of 
the land. Under section 505 of the Federal Land Policy Management Act, 
the Forest Service is required to attach terms and conditions to land 
use authorizations involving impoundment, storage, transportation, or 
distribution of water to protect NFS lands and resources, protect lives 
and property, and a number of other factors. The proposed groundwater 
directive does not change those existing requirements.

    Question 13. On the same day the groundwater directive was 
proposed, the Forest Service proposed directives to establish a 
national system of best management practices (BMPs) and monitoring 
protocols for water quality protection, and to require their use on NFS 
lands to meet Clean Water Act mandates. How are the two initiatives 
related? Which Clean Water Act mandates would be addressed under the 
proposed BMP directives?
    Answer. Both the proposed directive for Groundwater Resource 
Management (FSM 2560) and the proposed directives for National Best 
Management Practices (BMPs) for Water Quality Protection on National 
Forest System lands were published for public comment on the same day. 
The two directives were developed independently and are not 
interdependent. However, both proposed directives are intended to 
update internal Forest Service policies and procedures to provide for 
more consistent, credible, predictable, and transparent approaches to 
addressing activities and actions that could affect water resources on 
NFS lands.
    The intent of the current and proposed BMP directives is to carry 
out one of the Clean Water Act (CWA)'s primary purposes--to maintain 
the chemical, physical, and biological integrity of the nation's 
waters. The Forest Service has long had a requirement to implement BMPs 
to protect water quality in the Forest Service Directives System 
(Forest Service Manual 2530). The Forest Service has had strong 
regional and local efforts to implement BMPs for ground-disturbing 
activities for many years. However, because of the lack of a clear 
national framework for BMPs, the agency found it difficult to 
consistently demonstrate effectiveness of BMPs in protecting water 
quality. This has resulted in some adverse court decisions that forced 
substantial additional analyses, increased costs, and delayed projects. 
The 2012 land management planning rule required the agency to put a 
national system of BMPs in place (36 CFR 219.8(a)(4)), and the proposed 
BMP directives are intended to position the agency to address that 
requirement.
Response from Anthony G. Willardson, Executive Director, Western States 
        Water Council
    Question 1. What percentage of persons in the U.S. currently holds 
a special use permit?

    Question 1a. What might that percentage look like under the 
directive?

    Question 1b. How difficult would a special use permit be to obtain 
under the directive?
    Answer 1-1b. The Council has no information on the number of 
persons that hold special use permits, but could provide some data on 
wells, including location and capacity from water rights information. 
The additional requirements that the directive would impose could 
substantially increase the cost of obtaining new permits, maintaining 
existing permits, or seeking new sources of water off National Forest 
Lands (NFS) lands. All these actions would reduce the number of 
permits.
    For example, upon the expiration of current special use permits, 
the directive explicitly requires USFS land managers to consider 
requiring the removal of facilities, including wells (but possibly 
surface water diversions as well). This obviously would reduce the 
number of persons with special use permits, which would be terminated. 
Removing wells would impose very significant costs on non-Federal 
parties.
    For example, the Arizona Department of Water Resources, Chief 
Counsel, has stated:

          ``In Arizona's comments on the Proposed Directive, we 
        disputed the statement in the Federal Register notice that the 
        Proposed Directive was not subject to review by the Office of 
        Management and Budget under E.O. 12866 because we believe the 
        Proposed Directive will adversely affect state and local 
        governments and potentially will have an annual effect of $100 
        million or more . . . .''
          ``There are three local governments with a combined 
        population of almost 78,000 people that currently use wells on 
        Forest Service lands. If the special use authorizations 
        associated with wells and pipelines that provide water to these 
        communities are not renewed in the future due to requirements 
        of the Proposed Directive, there will most certainly be adverse 
        impacts to these local governments and those impacts should be 
        considered.''
          ``In analyzing the regulatory impact of the Proposed 
        Directive, it should be assumed that some existing special use 
        authorizations will not be renewed due to negative impacts to 
        groundwater dependent ecosystems or groundwater resources 
        resulting in the need to drill new wells or construct new 
        pipelines off of Forest Service lands. Based on that assumption 
        and a conservative estimate for new high-capacity well 
        construction of $200,000, only 500 wells nationwide would need 
        to be replaced to have an annual effect of $100 million. In 
        Arizona alone, the Department identified 700-800 wells 
        associated with Community Water systems potentially on Forest 
        Service lands plus an unknown number of pipelines.''

    Question 2. What additional work could USFS and states do to better 
communicate their intentions and activity so the public may better 
understand the real implications of the proposed directive?
    Answer. An inventory of wells on NFS lands would be a first step 
towards evaluating the extent of the implications of the proposed 
directive. The WSWC has done some very preliminary work towards 
determining the number of wells on National Forest Service lands. 
States maintain data on the location of wells that can be cross 
referenced with NFS boundaries. A more extensive analysis could 
estimate the capacity of those wells (given the 35 gallon per minute 
threshold in the directive), the population served and the distance 
from the external boundaries of NFS lands. All this information would 
help inform the discussion of the implications of the directive.
    Moreover, any survey USFS may have available of resources of 
concern, such as groundwater dependent ecosystems, would be useful. The 
rebuttable presumption of a connection between groundwater and surface 
waters and groundwater dependent ecosystems, could lead to expensive 
technical hydrogeologic analyses for any well owner with a special use 
permit to be renewed. Further, any assertion of a Federal reserved 
right to groundwater to protect such resources would be vigorously 
opposed by many western states. A more collaborative approach would be 
for the USFS to enter into an MOU with the individual states (see 
Wyoming MOU and Montana Compact) to recognize legitimate USFS interest 
and negotiate an agreement to protect waters.

    Question 3. How do state authorities currently evaluate groundwater 
resources and impacts? In your opinion, is the states' method of 
evaluation efficient and effective?
    Answer. Many western states have modeled groundwater availability 
and evaluate the impact of existing and proposed uses. Senior water 
rights are protected from injury from subsequent ``junior'' 
appropriations. States require public notice of all water right 
applications, and anyone with a water right that may be impacted by the 
proposed use may protest, requiring a public hearing. Moreover most 
states consider the public interest as part of the evaluation of 
applications. USFS may represent its interests in this process, and 
other state forums, should it consider NFS resources threatened. In 
consideration of such concerns, states usually have the discretion to 
deny, limit or condition water rights to avoid or mitigate negative 
impacts. Most states have authority to require metering and reporting 
of groundwater use, impose conservation measures, including well 
spacing, limit groundwater withdrawal measured in gallons per minute or 
acre-feet per year, and otherwise manage and control groundwater uses. 
The USFS has no such authority. State notice, hearing and public 
interest requirements, undertaken with water right applications, 
provide a cost effective evaluation of proposed uses and their impacts. 
Further, state groundwater availability modeling and general water 
resources planning authorities and activities evaluate groundwater 
resources and trends.
                               attachment
October 2, 2014

  Elizabeth Berger--WFWARP,
  Groundwater Directive Comments,
  USDA Forest Service,
  Washington, D.C.

  Re: FS-2014-0001--Proposed Directive on Groundwater Resource 
            Management, Forest Service Manual 2560

    Dear Ms. Berger:

    The U.S. Forest Service (hereafter USFS or Service) has issued a 
proposed directive on groundwater resource management (79 FR 25815, May 
6, 2014). This draft directive, published for public comment, is 
proposed for addition to the USFS Manual 2560. Because this directive 
impacts state authority to manage water, the Western Governors' 
Association (WGA) submits the following comments.
    The USFS states that the directive is needed in order to 
``establish a consistent approach for addressing both surface and 
groundwater issues that appropriately protects water resources, 
recognizes existing water uses, and responds to the growing societal 
need for high-quality water supplies'' (79 FR 25815).
Statement of Interest
    The WGA represents the Governors of 19 western states and three 
U.S.-flag islands. The association is an instrument of the Governors 
for bipartisan policy development, information exchange and collective 
action on issues of critical importance to the western United States.
    Clean water is essential to strong economies and quality of life, 
as the Western Governors recognize in their Policy Resolution 2014-04, 
Water Quality in the West. (http://www.westgov.org/policies/301-water/
596-water-quality-in-the-west-resolution-wga) Because of their unique 
understanding of these needs, states are in the best position to manage 
the water within their borders.
    States are the primary authority for allocating, administering, 
protecting, and developing water resources, and they are primarily 
responsible for water supply planning within their boundaries. States 
have the ultimate say in the management of their water resources and 
are best suited to speak to the unique nature of western water law and 
hydrology.
Western Governors' Analysis and Recommendations
    The Western Governors sent a letter to U.S. Secretary of 
Agriculture Tom Vilsack on July 2 with several questions regarding the 
proposed directive.\1\ As stated in that letter, our initial review of 
the proposed directive leads us to believe that this measure could have 
significant implications for our states and our groundwater resources.
---------------------------------------------------------------------------
    \1\ Incorporated by reference: Western Governors' letter to Sec. 
Tom Vilsack, dated July 2, 2014. http://www.westgov.org/component/
docman/doc_download/1821-usfs-groundwater?Itemid=.
---------------------------------------------------------------------------
    WGA thanks Secretary Vilsack for his response to this letter, dated 
August 29. We are also sincerely grateful for the additional extension 
of the comment period so that the Western Governors are able to provide 
these detailed comments on the proposed directive. We understand that 
the Forest Service manages a significant portion of land in western 
states, on behalf of the United States, and that what occurs on this 
land can, in some instances, have a significant impact on water 
resources.
Recognition of the States' Exclusive Authority over Groundwater 
        Management
    Well over a century ago, Congress recognized states as the sole 
authority over groundwater in the Desert Land Act of 1877. Moreover, 
the U.S. Supreme Court held in California Oregon Power Co. v. Beaver 
Portland Cement Co., 295 U.S. 142 (1935), that states have exclusive 
authority over groundwater, finding that following the Desert Land Act 
of 1877 ``. . . all non-navigable waters then a part of the public 
domain became publici juris, subject to the plenary control of the 
designated
states . . . .''
    Congress' clear intent that the states should have authority over 
groundwater, as affirmed by the U.S. Supreme Court, is distorted by the 
proposed directive in multiple ways. The proposed directive could be 
construed to assert USFS ownership of state groundwater through use of 
the phrase ``NFS groundwater resources'' throughout the document. It 
goes on to identify states merely as ``potentially affected parties'' 
and only recognizes states as ``having responsibilities'' for water 
resources within their boundaries. This vague and insufficient 
acknowledgement of the states' authority over groundwater is also 
evident in Section 2560.02-1, which states that an objective of the 
proposed directive is to ``manage groundwater underlying NFS lands 
cooperatively with states.'' This language misleadingly suggests that 
the USFS has equal authority with the states over groundwater 
management, which it does not.

  b Potential for Special Use Authorizations to Supersede State 
        Authority

      States hold the authority to issue water rights, a fact 
        recognized by the USFS in the proposed directive. However, the 
        Western Governors are concerned that the proposed directive 
        will lead the USFS to make decisions and place stipulations on 
        proposed actions on NFS lands based on the quantity of water 
        withdrawn with a state-issued water right; that is, a quantity 
        that the state has authorized for diversion and depletion. 
        Specific provisions include (emphasis added in all instances):

     Section 2560.03-4-a: Consider the effects of proposed 
            actions on groundwater quantity, quality, and timing prior 
            to approving a proposed use or implementing a Forest 
            Service activity;

     Section 2561-2: Prior to implementation or approval, 
            assess the potential for proposed Forest Service projects, 
            approvals, and authorizations to affect the groundwater 
            resources of NFS lands. If there is a high probability for 
            substantial impact to NFS groundwater resources, including 
            its quality, quantity, and timing, evaluate those potential 
            impacts in a manner appropriate to the scope and scale of 
            the proposal and consistent with this chapter; and

     Section 2562.1-3: When issuing or reissuing an 
            authorization or approving modification of an authorized 
            use, require implementation of water conservation 
            strategies to limit total water withdrawals from NFS lands 
            (FSM 2541.21h) deemed appropriate by the authorized 
            officer, depending on the type of authorized use; existing 
            administrative and other authorized uses in the area; the 
            physical characteristics of the setting; and other relevant 
            factors. If the holder of the authorization consents, amend 
            the authorization to include this requirement.

      These portions of the proposed directive assume that the Service 
        has some type of authority over the management of groundwater, 
        which it does not. The proposed directive should clearly state 
        that state-issued water rights for allocations of water must be 
        recognized. The USFS does not have the authority to limit the 
        amount of withdrawals authorized by a state. Limiting the 
        quantity of groundwater withdrawals through special use 
        authorizations would, in effect, amount to superseding states' 
        authority to issue water rights.

  b Connectivity of Surface Water and Groundwater
      Another troubling concern in the proposed directive is the 
        Service's rebuttable presumption that surface water and 
        groundwater are hydraulically connected, regardless of whether 
        state law treats these resources separately (Sections 2560.03-2 
        and 2561-1). The directive should defer to the laws of 
        individual states in recognition of their authority over water 
        management. Moreover, if groundwater and surface water are 
        assumed to be hydraulically connected, there is the potential 
        for misinterpretation of the directive to mean the Service's 
        newly asserted management of groundwater resources should 
        extend to surface water. To be clear, the states have the 
        authority to manage both groundwater and surface water, and the 
        USFS should fully recognize this in its proposed directive.
Legal Basis for the Proposed Directive
    Aside from the question of state authority, the proposed directive 
raises other legal questions.
    The proposed directive states that the assertion of reserved rights 
to surface water and groundwater should be consistent with the purposes 
of the Organic Administration Act, the Wild and Scenic Rivers Act, and 
the Wilderness Act. In United States v. New Mexico, 438 U.S. 696 
(1978), the U.S. Supreme Court denied USFS claims to reserved rights 
for fish, wildlife and recreation uses. Rather, the Court found that 
the Organic Act limits reserved rights to those necessary to meet the 
primary purposes of the Act--the conservation of favorable water flows 
and the production of timber--and that other secondary needs must be 
met by obtaining appropriation rights from the state.
    Given the Supreme Court's ruling, specific language in Section 2567 
(Item 3) of the proposed directive is troubling and confusing. This 
section states that, when filing groundwater use claims during state 
water rights adjudications and administrative proceedings, Forest 
Service employees should ``[a]pply Federal reserved water rights (the 
Reservation or Winters doctrine) to groundwater (emphasis added) as 
well as surface water to meet Federal purposes under the Organic 
Administration Act, the Wild and Scenic Rivers Act, and the Wilderness 
Act.''
    The prospect of Federal agencies claiming reserved rights to 
surface water is already a contentious affair, but suggesting the 
agency can assert such claims to groundwater is even more so. Reserved 
water rights have always been limited to surface water, and while there 
has been a long-standing debate as to whether they apply to 
groundwater, no Federal court has extended the doctrine to groundwater.
    Nevertheless, states and Federal agencies have worked together to 
craft mutually acceptable and innovative solutions to address Federal 
water needs, including Federal needs for groundwater. These types of 
negotiated outcomes accommodate Federal interests and needs and should 
be considered, recognizing the absence of any USFS reserved water 
rights authority for secondary purposes. The directive should require 
the USFS to work with state water right administrative agencies to 
address Federal interests and needs without asserting any reserved 
right claims to groundwater.
Questionable Need for Proposed Directive
    In the Federal Register notice for the proposed directive, the 
Service argues that there is ``a need to establish a consistent 
approach for addressing both surface and groundwater issues'' (79 FR 
25815). In separate communications, Service officials have declared a 
need to bring all of the USFS regions in line with varying groundwater 
directives into a single consistent framework. However, just one 
region--Region 3 (encompassing Arizona and New Mexico)--addresses 
groundwater in its existing directives.
Questionable Ability and Need to Implement Proposed Directive
    The proposed directive requires USFS employees to consider 
groundwater in a variety of new situations. Yet, as acknowledged in a 
``Frequently Asked Questions'' document provided by the Service on the 
proposed directive, USFS has just four dedicated groundwater 
specialists within its current staff to implement the proposed 
directive (Key and Common Questions and Answers: Proposed Groundwater 
Directive FSM 2560, (http://www.fs.fed.us/geology/
Proposed%20Groundwater%20
Policy_QA_6_30_14.pdf) Question 41). This document also contemplates 
hiring a contractor with groundwater expertise, ``if circumstances 
require it.'' Given the pressing needs of (and limited budget for) the 
Service's existing responsibilities, the Western Governors encourage 
the agency to direct its resources to existing programs.
    Additionally, the proposed directive creates regulatory duplication 
and overlap. As the South Dakota Department of Environment and Natural 
Resources stated in its July 31 submission on the proposed directive:

          The Forest Service is now directed to do research and 
        groundwater evaluations and assessments through this proposal. 
        This is commonly what the US Geological Survey and 
        Environmental Protection Agency do. It is not only a redundancy 
        of responsibilities, it is doubling expenditures of these 
        activities in an already overextended and unbalanced Federal 
        budget.
Adjacent Lands
    The proposed directive also requires USFS officials to evaluate 
water right applications ``on adjacent lands that could adversely 
affect NFS groundwater resources'' (Sections 2560.03-6-f and 2560.04h-
5). Such actions outside the boundaries of NFS lands exceed the limits 
of the agency's authority. It is inappropriate for the USFS to extend 
its administrative reach to lands it does not manage.
Land Exchanges
    The USFS creates a new requirement in the proposed directive for 
``an appropriate assessment of potential groundwater availability . . . 
as part of the appraisal process when water availability may be of 
significance on NFS lands proposed for a land exchange'' (Section 
2560.03-11). As the Western Governors have stated in a letter 
supporting legislation to facilitate state-Federal land exchanges,

          The burdensomeness and complexity of Federal land exchange 
        processes often prevent the completion of sensible and mutually 
        beneficial exchanges, even on a government-to-government basis. 
        Consequently, state lands remain locked in Federal conservation 
        areas, and states are deprived the economic benefit of land 
        grants that were made to fund education and other purposes.\2\
---------------------------------------------------------------------------
    \2\ Incorporated by reference: Western Governors' letter to Rep. 
Rob Bishop, dated June 19, 2014, in support of the Advancing 
Conservation Education Act of 2014. http://www.westgov.org/component/
docman/doc_download/1817-bishop-land-exchange-legislation?Itemid=.

    Adding a new requirement to an already arduous process will create 
further challenges for the process of approving economically beneficial 
land exchanges. Furthermore, the proposed directive does not specify 
what the threshold of ``significance'' is that would warrant a 
groundwater availability assessment, nor does it speak to which 
specific factors will be evaluated or how they may be weighted in the 
consideration of a transaction. The Service should clarify these points 
before adding a new barrier to the land exchange process.
Lack of State Consultation
    The USFS did not reach out to WGA or any state agencies of which 
WGA staff is aware in advance of developing and publishing the proposed 
directive. When asked about state consultation on a stakeholder 
conference call on May 20, 2014, the USFS indicated that they had 
consulted with states when the Proposed Directive was first considered 
several years ago, a time when many of the current Western Governors 
had not yet been elected and many different employees were working 
within the Service and the state agencies.
    The USFS asserts that the proposed directive does not trigger the 
state consultation requirements under E.O. 13132 on federalism. 
However, the USFS has initiated tribal consultation pursuant to E.O. 
13175, Consultation and Coordination with Indian Tribal Governments. 
States, as the exclusive authority for groundwater management, deserve 
at least the same level of consultation as tribes.
    Waiting until the public comment period to solicit state input, as 
the USFS has done in this instance and others, does not allow for 
meaningful consideration of the states' perspectives. States should 
have been consulted much earlier in the development of this directive, 
especially given the number of years the agency has spent preparing 
this proposal.
Context: Other Water-Related Proposed Directives from USFS
    The USFS has published two other proposed directives for public 
comment: one regarding best management practices for water quality and 
one on ski area water rights. An assumption underlying all three 
proposed directives is that the Service has an obligation to extend 
regulation of water resources beyond current state and Federal efforts. 
As the Service has written in a ``Frequently Asked Questions'' document 
for the proposed directive on groundwater,\3\
---------------------------------------------------------------------------
    \3\ ``Key and Common Questions and Answers--Proposed Groundwater 
Directive FSM 2560''--http://www.fs.fed.us/geology/
Proposed%20Groundwater%20Policy_QA_6_30_14.pdf.

          There is a clear need for the Forest Service, in continued 
        cooperation with the states and tribes, to take an active role 
        in comprehensively managing the human activities that 
        potentially affect water resources on National Forest System 
---------------------------------------------------------------------------
        lands.

    WGA is sensitive to the potential for this ``comprehensive 
management'' to venture into the realm of new regulatory authority for 
the Forest Service.
    WGA urges the Forest Service to consult with states in a meaningful 
way prior to proposing future directives or rules. This proposed 
directive, like many other proposals from the USFS and other Federal 
agencies, was developed without any state consultation of which WGA is 
aware. True consultation with the states will help the Service identify 
and avoid conflicts regarding proposed directives and rules. We invite 
the USFS to work through WGA, the Western States Water Council, and 
individual states to facilitate dialogue on ways to improve this (and 
any future) proposed directive.
    WGA appreciates the opportunity to submit comments on this proposed 
directive.
            Respectfully submitted,
            
            

 
 
 
Hon. Brian Sandoval,                 Hon. John Kitzhaber, M.D.,
Governor, State of Nevada,           Governor, State of Oregon,
WGA Chairman;                        WGA Vice Chairman.
 

Response from Don Shawcroft, President, Colorado Farm Bureau
    Question 1. Your organization represents many different farmers, 
ranchers and producers around the state; do you expect this proposed 
directive to cause any trouble for them as they continue their 
practices?
    Answer. The proposed directive appears to be an effort by the USDA 
Forest Service to exceed its management authority over waters of the 
states through administrative actions, thus giving the Forest Service 
greater control not just over land in my own State of Colorado but over 
the natural resources of the West generally. It is important to note 
that the majority of all western water currently allocated, adjudicated 
and for farmers, ranchers, and other holders of water rights can be and 
often is used as property collateral to secure loans with a lending 
institution. The stability of prior appropriation doctrine is part of 
the structure and underpinning of western state and local economies. 
Any claim or clouding of the state's authority to adjudicate or 
questioning of appropriate beneficial use as defined by the states 
would create tremendous uncertainty and diminishment of property 
values. Congress has not given the Forest Service the right to 
intervene in this important local process. The negative impacts on 
grazing, timber, recreation and other permitted beneficial uses of 
national forest system lands and of adjacent and nearby private, non-
Federal public and tribal lands can best be avoided by the withdrawal 
of these directives.

    Question 2.You mention that the Organic Administration Act of 1897 
vests the USFS with the authority to manage surface waters under 
certain circumstances. What are those certain circumstances?
    Answer. The Directive sites one of the Organic Act's stated 
purposes as ``. . . securing favorable conditions of water flows.'' The 
Forest Service misconstrues this provision by assuming surface and 
groundwater resources are a unit unless proven otherwise, and 
therefore, that management of both resources is necessary to provide 
favorable conditions of water flows on NFS lands. From this flawed 
interpretation, the Forest Service then concludes that the Organic Act, 
through its stated purposes, authorizes the agency to manage 
groundwater along with surface water in order to secure favorable 
conditions of water flows.
    The Organic Act simply authorizes the Forest Service to manage the 
land, vegetation and surface uses. The directive fails to discuss or 
acknowledge state authority to manage water resources or limits to 
Forest Service water rights until adjudicated by each state. The Act 
does not provide authority to manage or dispose of the groundwater or 
surface waters of the states based on the Directive's declared 
``connectivity'' clause.

    Question 3. You also mention the statute provides no authority for 
management of groundwater. What certain circumstances, if any, should 
be monitored by the USFS?
    Answer. The Organic Act simply authorizes surface management of the 
land, its vegetation, and surface uses--not the subsurface which 
includes groundwater resources--in a way to provide favorable 
conditions of water flows. The United States Supreme Court has gone to 
great lengths to bring clarity to the scope of the Organic Act's 
determination that federal authority extends only to prudent management 
for surface water resources. In United States v. New Mexico, the Court 
defined prudent management to: (1) ``secure favorable water flows for 
private and public uses under state law,'' and (2) ``furnish a 
continuous supply of timber for the people.'' The agency authority is 
narrowed to proper management of the surface to achieve the specific 
purpose of the Organic Act--not the direct management of the 
groundwater and agency declared interconnected surface waters. In no 
circumstances should the Forest Service attempt to regulate and manage 
subsurface groundwater resources.

    Question 4. You state that the USFS's attempt to use Clean Water 
Act terminology such as any ``hydrological connection'' to establish 
authority over water rights is unlawful. How else has the USFS 
attempted to establish authority over groundwater water rights?
    Answer. In terms of the agency's efforts to use the CWA to justify 
authority over groundwater, Farm Bureau questions why the Forest 
Service points to the Clean Water Act as a source of legal authority 
and direction for the Directive. The Directive merely states in two 
general sentences that the Clean Water Act is a source of legal 
authority for the Directive. There is no explanation of how the Clean 
Water Act applies to this Directive or how sections 303, 401, 402 or 
404 of the Clean Water Act (cited in the Directive) to provide any 
legal authority to the Forest Service. The Forest Service does not 
administer any part of the Clean Water Act nor does that statute grant 
the Forest Service any authorities; administration of the law rests 
with the Environmental Protection Agency, the U.S. Army Corps of 
Engineers and, most importantly, the states. As is most pertinent here, 
the Clean Water Act expressly states that nothing in that law shall 
``be construed as impairing or in any manner affecting any right or 
jurisdiction of the states with respect to the waters (including 
boundary waters) of such States.'' 33 U.S.C.  1370. The Forest Service 
has no authority to infringe on state law regarding groundwater, and 
clearly the Clean Water Act does not provide such authority. It is 
absolutely clear that the Clean Water Act does not cover groundwater.
    The reference to the Clean Water Act leaves only questions about 
the Forest Service view of its authority. Is the Forest Service 
claiming federal jurisdiction over groundwater based on the Clean Water 
Act (which explicitly does not grant federal jurisdiction over 
groundwater)? Does the ``interconnectivity'' clause somehow grant the 
Forest Service legal authority over groundwater under the Clean Water 
Act? Is the Forest Service claiming that it needs authority over 
groundwater to comply with its obligations under the Clean Water Act? 
If so, the Forest Service must explain that it has obligations and what 
they are, not just refer to the statute. At a minimum, Federal agencies 
must provide a modicum of justification for any claim of legal 
authority, particularly here when the Forest Service has no authority 
whatsoever to implement the Clean Water Act. The Forest Service's 
statement of legal authority is so wholly inadequate that it provides 
Farm Bureau with little information with which to provide construct 
meaningful comments and therefore it cannot be used as a basis for the 
Directive.
    As included in the written testimony, the Forest Service has been 
attempting to extort water rights from Federal permittees for some 
time. In an August 15, 2008, Intermountain Region briefing paper 
addressing applications, permits or certificates filed by the United 
States for stock water, the agency claimed, ``It is the policy of the 
Intermountain Region that livestock water rights used on National 
Forest grazing allotments should be held in the name of the United 
States to provide continued support for public land livestock grazing 
programs.'' Further, another Intermountain Region guidance document 
dated August 29, 2008, states, ``The United States may claim water 
rights for livestock use based on historic use of the water. Until a 
court issues a decree accepting these claims, it is not known whether 
or not these claims will be recognized as water rights.'' During a 
Subcommittee on National Parks, Forests and Public Lands hearing on 
March 12, 2012, the Forest Service testified, ``The Forest Service 
believes water sources used to water permitted livestock on Federal 
land are integral to the land where the livestock grazing occurs; 
therefore, the United States should hold the water rights for current 
and future grazing.''
    Specific examples of recent conflicts with the Forest Service of 
water rights include the following:

    Tooele County Utah Grazing Association:

    In the spring of 2012, livestock grazing permittees meeting with 
the local forest managers were confronted by forest land managers 
seeking a ``sub-basin claim'' from the state of Utah. Where a sub-basin 
claim is granted by the Utah Division of Water Rights, changes in use 
and diversion can be done without state approval. The permittees were 
asked to sign a ``change of use'' application which would have allowed 
the agency greater ease in determining what the use would be, including 
changing use from livestock water to wildlife, recreation or elsewhere.
    When permittees objected, they were told that not complying with 
the Forest Service request could adversely affect their ``turn out''--
the release of their sheep and cattle onto their forest allotments.

    Tombstone, Arizona:

    In this scenario, the Forest Service overfiled on the city's 25 
developed springs and wells located in the Huachuca Mountains. For more 
than 130 years, Tombstone piped its privately held water rights some 30 
miles for use. Even after the Huachuca's were designated a Federal 
wilderness area in 1984, Tombstone was allowed to maintain its road and 
critical access to its springs providing Tombstone with water for 
culinary needs and maybe more important in this hot, arid place--fire 
protection and public safety.
    Tombstone won the water ownership challenge, but found the agency 
combative and stonewalling following torrential rains in 2011. After 
notifying the Forest Service of their need to repair damage as in the 
past, they were denied access. They sought relief based on the state's 
public health, safety and welfare obligations. When the city received 
authorization to do badly needed repairs they were forbidden from using 
the previously approved mechanized equipment. As city employees showed 
up with hand-tools and wheelbarrows--armed forest agents would not 
allow the ``mechanized'' wheelbarrows onto the forest administered 
lands. As of April 24, the Forest Service has allowed Tombstone access 
to only three of their 25 springs.

    Otero County, New Mexico:

    In drought-stricken Otero County New Mexico, the Forest Service is 
blocking rancher's cattle from accessing long held water and recognized 
as private property rights under state law. The agency told the 
ranchers that they merely replaced old barbed wire fences with new, 
much stronger metal based fences to establish enclosures to protect a 
``vital wetland habitat.''
    Otero County Commissioners issued a ``cease and desist'' order in 
an attempt to allow the cattle access to the rancher's water and to 
protect the state's sovereign water rights. The elected county 
commissioners charged the Forest agents with an illegal action that 
could ultimately lead to animal cruelty. The county is threatening the 
arrest of Federal personnel who are keeping the ranchers from their 
privately held water rights.

    Question 5. You mention several times the idea of just compensation 
for taking private property by adverse possession. Do you or your 
members have an idea of what just compensation might look like should 
the USFS proposed directive occur?
    Answer. From a historic standpoint, when water transitions from 
agriculture to M&I (municipal and industrial) use, the water rights 
with the earliest priority dates have the greatest value. For example a 
farmer whose family established an 1860 priority date on a local water 
source would have greater market value than a 1920 water right on the 
same water source. During times of drought or shortage, the 1860 water 
right will be delivered while the 1920 right could be excluded from 
delivery. Is more arid portions of the West, the early priority dates 
have the same impact but the water values are dramatically higher.
    In most western states--Arizona, Colorado, Idaho, Montana, Nevada, 
New Mexico, Utah and Wyoming--all surface water rights are based on the 
prior appropriation doctrine that allows rights holders to withdraw a 
certain amount of water from a natural water course for beneficial 
purposes on land remote from the point of diversion.
    Farm Bureau supports valuation and transitioning of water rights in 
a marketplace by willing seller and willing buyer. In terms of just 
compensation, the U.S. Constitution requires compensation for 
government takings, and in many western states, states require 
compensation for either a taking or a diminishment of value. Valuation 
of water rights varies based on a number of factors including climate 
and water availability--water availability in the Pacific Northwest is 
very different from arid states in the Southwest.
    Farm Bureau opposes Federal jurisdictional control being imposed on 
farmers without just compensation for loss of productive development or 
sale potential, as provided by the Constitution. Compensation to 
landowners for reduction in property values should be itemized and 
taken from the budget of the respective federal agency.
    Farm Bureau supports the following:

    (1) The present system of appropriation of water rights through 
        state law and we oppose any Federal domination or pre-emption 
        of state water law or resource distribution formulas;

    (2) Water rights as property rights that cannot be taken without 
        compensation and due process of law;

    (3) Government providing due process and compensation to the exact 
        degree that an owner's right to use and the value of the 
        property has been diminished by government action;

    (4) All levels of government abiding by the Fifth Amendment to the 
        Constitution: ``No person shall be deprived of life, liberty or 
        property without due process of law; nor shall private property 
        be taken for public use without just compensation;''

    (5) The basis for just compensation being fair market value of the 
        property or the economic loss to the owner or any adjoining 
        landowner whose property is devalued; and

    (6) Compensation for partial takings of the property being based on 
        the reduction in the value of the total property.
Response from Scott A. Verhines, P.E., New Mexico State Engineer *
---------------------------------------------------------------------------
    * There was no response from the witness by the time this hearing 
went to press.
---------------------------------------------------------------------------
    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?
```