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Douglas Wheeler

22 June 2015
A concise Friday announcement in the Federal Register, 80 Fed. Reg. 35,299 (June 19,2015), brings notice that the U.S. Forest Service has abandoned plans for major revisions of its groundwater management policy, Forest Service Manual 2560, at least for the time being.

Although the Forest Service attributed its reversal to a determination that the “proposal does not adequately meet its needs,” the new language had drawn widespread criticism from stakeholders outside of the agency, including the Congress, western states and groundwater permittees. The criticism was based largely on a perception that the Forest Service intended to expand its jurisdiction into the management of groundwater resources that heretofore had been the sole regulatory province of the states. The Forest Service has long exercised a degree of control through the issuance of special use permits for groundwater withdrawals from beneath Forest Service land, usually related to maintenance of forest health, but cannot deny reasonable access to holders of state-sanctioned subsurface rights. However, the proposed revisions were seen as imposing more stringent standards for the issuance of such permits, and extending Forest Service jurisdiction to aquifers which lie, in whole or part, beyond the boundaries of National Forests.

Speaking for the Western Governors Association, Jim Ogsbury told the House Committee on Natural Resources in April that WGA opposed those elements of the Forest Service proposal which appeared to encroach upon the states’ regulatory prerogatives. The states, he said, “are primarily responsible for water supply planning within their boundaries.” The American Bottled Water Association [a Hogan Lovells client], some of whose members are Forest Service permittees, emphasized the multiple-use mandate of the Forest Service. In its comments on the proposed revisions, ABWA expressed concern that the Proposed Directive “assigns first priority to protection of groundwater among [the Forest Service’s] multiple responsibilities for resource management,” including sustainable withdrawal and use of groundwater.

The Forest Service appeared to deflect these arguments in its withdrawal of the Proposed Directive: it said that “the proposed directives did not, and any future actions will not, infringe on state authority, impose requirements on private landowners, or change the long-standing relationship between the Forest Service, States and Tribes on water.” At the same time, the Forest Service announced that it will start over, “to develop new proposed directives to create a consistent approach to evaluating and monitoring effects to groundwater resulting from actions on NFS lands.”

Douglas Wheeler

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