Western Governors denied true consultation in USFS water proposal

water-riverWestern Governors have submitted comments to the U.S. Forest Service (USFS) about its proposed directive on groundwater resource management. The members of the Association argue that the measure could have significant implications for Western states and their groundwater resources and because they have unique understanding of these needs, states are in the best position to manage the water within their borders.

According to the USFS 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.”

Nevada Governor Brian Sandoval, Chairman of the Western Governors’ Association and Oregon Governor John Kitzhaber wrote to the USFS, “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.”

The Governor’s claim that while Congress’ clear intent was “that the states should have authority over groundwater, as affirmed by the U.S. Supreme Court,” the proposed directive “distorts the intent in multiple ways.” They write, “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.”

The Governors assert that, “Congress recognized states as the sole authority over groundwater in the Desert Land Act of 1877, and in 1935 the U.S. Supreme Court reaffirmed that exclusive authority. However, the proposed directive could be construed to assert USFS ownership of state groundwater by use of the phrase “NFS groundwater resources” throughout the document. The document also identifies states merely as “potentially affected parties” and only recognizes states as “having responsibilities” for water resources within their boundaries.”

According to the Governor the feds have “questionable ability to implement the proposed directive.” They cite the fact that the “directive requires USFS employees to consider groundwater in a variety of new situations. Yet, as the Service acknowledges, USFS has just four dedicated groundwater specialists to implement the proposed directive. Given the pressing needs of (and limited budget for) the Service’s existing responsibilities, Western Governors encourage the agency to direct its resources to existing programs.”

The Governors claim that they have not been adequately consulted by the USFS. According to the Governors, USFS officials were asked about state consultation during a stakeholder call on May 20, 2014 but waited until the public comment period to solicit state input. The Governors complaint that the feds’ maneuver “does not allow for meaningful consideration of the states’ perspectives.”

The Gvoernors’ letter concludes, “This proposed directive 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.”

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