Editor’s Note: This piece is a part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Introduction

The United States Forest Service (“Forest Service”) manages 193 million acres of land in the United States, which comprise of 8.4 percent of the total land area, and most of which lies west of the Mississippi River.  In May 2014, the Forest Service announced a proposal to amend its internal polices.  The amendment would establish a comprehensive framework for groundwater management on National Forest System (“NFS”) lands.  Following publication in the Federal Registry, the agency received over 250 comments from interested parties, including state and city governments, tribal groups, and conservation organizations.  Some comment submissions supported the Forest Service’s policy changes.  Others expressed concern over its lack of authority to institute groundwater regulations, and its potential overreach into state rights.  More specifically, commenters argued that the proposed directive had the potential to usurp state groundwater management by what they perceived was a huge expansion of federal authority over reserved water rights.  Ultimately, the Forest Service withdrew its proposed directive, but it intends to revise and resubmit similar directives following additional internal and external consultation efforts.

The Groundwater Directive

The Forest Service does not have a comprehensive policy for managing groundwater resources on NFS lands.  Its current policies provide little internal direction and only address “agency inventory and monitoring activities for groundwater.”  The proposed groundwater directive, entitled “Groundwater Resource Management,” would have amended the Forest Service’s internal directives for Watershed and Air Management.

Substantively, the proposed directive would help the agency manage access to and utilization of groundwater resources under NFS lands.  Broadly speaking, it would establish policies and procedures to help the agency evaluate activities that potentially affect the quality and quantity of groundwater.  The agency identified four objectives and eight broad changes that would result from the new directive.  Among them, and relevant to this discussion, is the establishment of a framework for evaluating existing and proposed Forest Service uses and special use authorizations.  For any such uses, the agency would begin to require “appropriate water conservation measures” to avoid, minimize, or mitigate adverse effects to groundwater.  The agency would not authorize development projects or use of groundwater if such uses failed to “adequately protect resources.”  Further, the Federal Service would assume that all groundwater and surface water is “hydraulically connected, unless demonstrated otherwise.”

The Forest Service offered numerous reasons for its policy change; however, two underlying rationales stand out.  First, the agency concluded that groundwater has inextricable links to all other sources of water in a watershed, so it is therefore “appropriate to include groundwater” in its management of NFS lands in order to maintain the integrity of all water resources.  Second, the Forest Service asserted that there is a “need” to create a consistent policy that addresses both surface water and groundwater resources, and the directive responds to external rules and recommendations calling for such policies.

Legal Concerns

The agency published the proposed groundwater directive for public comment and tribal consultation.  It received hundreds of responses from interested parties.  Some, including conservation groups and those representing tribal interests, favored, or were otherwise neutral to, the proposed policy changes.  However, a majority of those submitting comments opposed the Forest Service’s groundwater directive for a variety reasons.  Predominantly, the agency itself recognized that “[s]tates and a number of other organizations raised concerns that the proposed directive would exceed the Agency’s authorities and infringe on State authorities to allocate water.”

To the first point the agency identified, many commenters remarked that the Forest Service lacked independent authority to regulate groundwater, even that located under NFS lands.  For instance, the Western Governors’ Association (“WGA”), which represents the governors of nineteen Western states, argued that states have exclusive authority over ground water in the United States.  Congress granted such authority to the agency in the Desert Land Act of 1877, and the Supreme Court confirmed it in California Oregon Power Co. v. Beaver Portland Cement Co.  Although the federal government retained some power by reserving rights to surface water on public lands, the WGA and others contended that the Forest Service did not have such a reserved right to groundwater—not in the 1897 Organic Administration Act and not in case law. The Forest Service, on the other hand, argued that the proposed directive did not grant the agency any new authorities.  Instead, it simply clarified the agency’s already existing authority that mandates its protection of NFS lands, which inherently includes the regulation of groundwater.  Thus, this argument makes it clear that the Forest Service believed that federal reserved water rights apply to groundwater, and that the proposed directive was arguably an explicit expansion of those federal rights.

Commenters also highlighted the second concern the agency identified, that the directive infringed on state authority over groundwater management.  Many argued that the proposed directive overreached its stated goal and appeared to create federal rights that inherently conflicted with conferred state rights to groundwater.  The Forest Service later argued that “[t]he proposed directives did not, and any future actions will not, infringe on State authority.” However, ambiguity in the policy nonetheless created tension.  Without clarity, for instance, the proposed directive as written could have allowed the Forest Service to place quantity-based restrictions on waters connected to NFS lands, even if a state has previously authorized a diversion and depletion.  Additionally, commenters argued, the Forest Service should not presume a hydrological connection between surface water and groundwater.  It should instead leave this decision to the laws or agreements of individual states.

Conclusion

In June 2015, the Forest Service withdrew its proposed groundwater directive.  Although the Forest Service withdrew its directive, it announced an intention to continue engaging in dialog, both internally and publically, to develop revised proposed directives on the issue.  Ultimately, if the Forest Service manages to establish policies involving access to or utilization of groundwater resources on NFS lands, even for the purpose of enhancing water quality, it may constitute a large expansion of federal reserved water rights.

Kobi Webb, J.D., University of Denver School of Law, 2016

Image: Greer Spring in Missouri’s Mark Twain National Forest.  Flickr user U.S. Department of Agriculture, Creative Commons.

SOURCES

By the Numbers, U.S. Forest Service, http://www.fs.fed.us/about-agency/newsroom/by-the-numbers (last updated Nov. 2013).

California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935).

Comments, Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560, https://www.regulations.gov/#!docketDetail;D=FS-2014-0001.

James Cefalo, Return of the Federal Non-Reserved Water Right, 10 U. Denv. L. Rev. 45, 49 (2006).

Letter from Anthony L. Francois, Attorney, Pacific Legal Foundation, to Forest Service (Oct. 3, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0129.

Letter from Barker Fariss, Ph.D, Tribal Historic Preservation Office, to the Forest Service (June 25, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0130.

Letter from City of Greely, to Forest Service (Sep. 29, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0230.

Letter from Eric Fry, Director of Regulatory Affairs, Peabody Energy, to Forest Service (Aug. 4, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0045.

Letter from Matthew H. Mead, Chairman, and Steve Bullock, Vice Chair, Western Governors’ Association, to the Forest Service at 2 (Mar. 17, 2016), http://www.westgov.org/images/Forest_Service_Directives_FINAL_002.pdf.

Letter from Rex Tilousi, Chairman, Havasupai Tribe, to the Forest Service (Oct. 2, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0193.

Letter from WGA, at 4; Letter from Clinton Ditch & Reservoir Company, the Forest Service at 4 (Aug. 21, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0227.

Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560, 79 Fed. Reg. 25816 (proposed May 4, 2014) (referring to FSM 2880, entitled “Geologic Resources, Hazards, and Services”).

Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560, 80 Fed. Reg. 35299 (June 19, 2015).

U.S. Forest Service, “Key and Common Questions and Answers Proposed Groundwater Directive FSM 2560,” Question 5 (June 30, 2014).