Jamal Utah
I am writing today to inform the readers of this blog about systematic efforts by the U.S. Forest Service (“F.S.”) to take control of private water rights. Recently, this blog made mention of efforts to institute the “public trust doctrine” in California. In Colorado, we have been fighting ballot initiatives concerning the public trust doctrine for years. While the public trust doctrine issue is increasingly concerning, I am writing today about what I feel is a potentially even greater threat to private water rights.
In the last few years the U.S. Forest Service has been quietly revising its internal rules concerning the management of the National Forests (“N.F.”), to include severe restrictions on the diversion and use of surface and groundwater. It is worth noting at the outset that Congress specifically granted the citizens of the U.S. the right to obtain private water rights under state law on federal land. See the Mining Acts of 1866 (30 U.S.C. § 51); the Mining Acts of 1870 (30 U.S.C. § 52), the Desert Land Act of 1877 (43 U.S.C. § 321); and California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 158 & 162 (1935).
While I have been aware of efforts by the F.S. to restrict private water rights in the limited context of grazing permits and ski area permits for some time, it has recently become clear that the scope is significantly broader. Below, I describe past and ongoing efforts by the F.S. to seize and control private water rights. I also provide a little background on the laws governing the F.S.’s authority to obtain water rights, in order to put this issue in context.
Special Use Permit Clauses Requiring the Relinquishment of Water Rights
On March 6, 2012, the F.S. issued Interim Directive No. 2709.11-2012-2 (“2012 Directive”), which requires the insertion of a new clause into new and renewed special use permits ski areas. Among other things, this clause required the Applicant to assign and/or convey any and all water rights associated with the special use permit to the F.S. as a condition to the issuance or renewal of a special use permit. This would include reservoirs, ditches, wells, pipelines, etc. and the associated water rights, even where they were lawfully developed solely by private parties with private funds. The 2012 Directive also required the Applicant to waive any damages or takings claims against the U.S. for this conveyance. Thus, no compensation is given for this transfer. Similar permit requirements were introduced in grazing permits.
In December 2012, the National Ski Areas Association successfully challenged the 2012 Directive. A federal court granted an injunction in favor of the ski areas on procedural grounds, stating that the Forest Service had failed to comply with various public participation and notice statutes. You can read an article about this decision online.
Unfortunately, the decision did not address the greater issue, which is whether the F.S. actually has the power to place such requirements on the use of federal land. A Federal Task Force, charged with evaluating this issue in 1997, concluded that the F.S. did not have this power. Specifically the task force made the following three conclusions.
- Congress has not delegated to the Forest Service the authority necessary to allow it to require that water users relinquish a part of their existing water supply or transfer their water rights to the United States as a condition of the grant or renewal of federal permits;
- Decrees entered in McCarran Amendment water rights adjudications are intended to result in a binding allocation of the rights to the use of water for federal and non-federal purposes, including the use of water to attain the primary and secondary purposes of the National Forests. Accordingly, the Forest Service may not use its permitting authority to reallocate or otherwise obtain water for National Forest purposes from non-federal water rights which have been or will be recognized in McCarran proceedings; and
- The Forest Service must attain the secondary purposes of the National Forests by obtaining and exercising water rights in accordance with state and federal law and by working with owners of non-federal water rights to achieve National Forest purposes without interfering with the diversion, storage, and use of water for non-federal purposes. The use of these approaches will avoid the circumstances that have motivated the Forest Service to act in a manner which exceeds its legal authority.
The full report can be viewed online.
Moreover, U.S. Supreme Court decisions have confirmed that the federal government is to defer to state law on issues of water right administration and adjudication. See, California v. U.S., 438 U.S. 645, 653 (1978)(“The history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the western states is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress.”) .
Since the decision in December 2012, the Forest Service has worked to comply with the procedural requirements mandated by the federal court. It also recently released a new rule concerning ski area special use permits. While this rule no longer requires the transfer of the water rights to the federal government, it prevents the owner from doing anything with that water right without prior F.S. approval. So basically, the F.S. is the owner of the water right because the title owner will lose their special use permit if they do anything with the water without F.S. approval. The rule also prohibits the applicant from selling the water rights. Those new rules can also be found online.
At this point, you may be asking yourself why does this matter for anyone other than ski areas? The problem is that similar rules have been put in place for grazing permits. Moreover, comments have been made during state and federal committee testimony suggesting a desire by the F.S. and the BLM to adopt these rules more broadly once the F.S. gains a foothold. The concern over these actions was so great that Senator Tipton introduced a bill that would block these efforts. Unfortunately, the bill was defeated. Some information can be found on this bill on Senator Tiptons Web site. Colorado also attempted stop the F.S with the introduction of House Bill-1028. While this bill passed the House with bi-partisan support, it was killed by senate democrats, despite calls from the democratic governor that it be taken to the floor for a vote. See press on this legislation on the Telluride News site.
So is one of several examples of F.S. attempting to seize and/or severely restrict private water rights. Moreover, these efforts are ongoing.
2014 Groundwater Directive
On May 6, 2014, the F.S. published notice of a draft directive entitled “Chapter 2560 – Groundwater Resource Management”. This directive creates rules, both explicitly and implicitly, that would allow the F.S. to restrict diversions of private groundwater rights on the N.F. and creates discretion to deny new and renewed special use permits for groundwater development based on undefined and unquantified impacts to “F.S. groundwater resources.”
It is important to recognize that in most western states, one does not have any right to withdraw groundwater under your land simply by virtue of owning the overlying surface. Rather, your must either get state administrative approval or water court approval, or both. The Groundwater Directive is based on the incorrect assumption that the F.S. has a legal interest in the groundwater under the N.F. simply by virtue of its ownership of the surface. Basic property law dictates that this is not the case. Moreover, both the Task Force Report described above and the U.S. Supreme Court as described above has made it clear that groundwater use is governed by state law to which the U.S. must comply.
The Groundwater Directive will impact anyone who uses groundwater that underlies the N.F. Moreover, the Directive indicates that the F.S. will begin investigating activities outside of the national forests, in the adjoining land, that could impact groundwater under the national forests. So even if your well isn’t on federal land, you could receive scrutiny from the F.S. Obviously, this is very alarming.
2014 Best Management Practice Directive
Concurrently with the Groundwater Directive, the F.S. published another notice in the federal register for a National Program of Best Management Practices. For those who are unfamiliar with Best Management Practices or BMPs, a common example of these are the straw bales that you see around stormwater drains at construction sites to prevent soil erosion. While the federal notice for this directive itself is unremarkable, it states that the directive would “require the use of the Agency’s National Core BMPs and National Core BMP Monitoring Protocols detailed in Agency technical guides FS–990a (April 2012) and FS–990b (in development).” The National Core BMP Monitoring Protocols described in the Directive have not been released for public review. However, the National Core BMP document is available online as well. Buried in this document are rules that would allow the F.S. to require water users to reduce or eliminate otherwise lawful water diversions under the guise of water quality protection. In a section addressing water diversions and conveyances, the document contains the following direction: “Operate diversion structures in such a manner as to leave desired or required flows and water levels in the source waterbody as determined in project planning.” This suggests that the F.S. will dictate the amount of water that water right holders can withdraw as they see appropriate, based on their own planning. This undermines private property rights, and the F.S. has no authority institute such rules. Keep in mind that these are rules that the Forest Service is creating for itself. The F. S. does not have direction from Congress to act in this fashion.
Legal Framework
When hearing about this for the first time, many people immediately think that it makes sense for the F.S. to do these things because it owns the land and can do as it pleases. While this is true to a certain extent, the F.S. can only obtain water rights for the N.F. in two ways. The first way is what is known as the reserved water rights doctrine. This doctrine grants the U.S. that amount of water necessary to carry out the purpose for which the land was reserved from the public domain. When Congress set aside the national forests, national parks, national monuments, et cetera, they specifically listed why this land was being protected from private settlement. The purposes for these reservations varies.
The U.S. Supreme Court has specifically held that the purpose of reserving the N.F. was to promote timber production and protect watersheds so that sufficient water would be available to the settlers of the west. See U.S. v. New Mexico, 438 U.S. 696 (1978). Thus, the Reserved Water Rights Doctrine resulted in the F.S. getting all the water rights that it needed to carry out these very limited purposes. Moreover, one of the explicitly stated purposes of the reservation was to protect water for private development by settlers. Because of the reserved rights doctrine, the F.S., by definition, currently has all the water rights that it needs to protect the national forests as dictated by Congress.
Later, Congress passed the Multiple Use Sustained Yield Act, which allowed the F.S. to obtain additional water rights for purposes other than timber production. However, according to the U.S. Supreme Court it must obtain this water pursuant to state law and it must do so in the same manner as any other private individual. See U.S. v. New Mexico, 438 U.S. 696, 702 (1978). Moreover, as stated in the Task Force Report, discussed above, the F.S. must not interfere “with the diversion, storage, and use of water for non-federal purposes.” The bottom line is that the Forest Service already has all the water that it needs, and if it wants more it has to get it in the same manner as any other private citizen, which does not include taking it without compensation from others or using its permitting authority to get it.
Conclusion
If one were to look at these actions by the Forest Service individually, they may not make much of it. However, when viewed together and with the proper context, it is clear that the F.S. is actively engaged in a systematic effort to take control of all water arising on or under the N.S., despite a complete lack of authority to do so. Moreover, the F.S. is attempting to hide what it is doing by compartmentalizing these efforts in hopes that the broader scheme will be obscured. This is incredibly frightening because federal land makes up a large percent of the available land in the west as well as many of the headwaters for major rivers and streams. If the F.S. gains the ability to disrupt private water rights on these lands, it could have a dramatic effect on the livelihood of those in affected states. Moreover, very few people are aware that this is happening. Once it happens, it will be much harder to undo than if efforts are made to stop it now.
I would encourage all of the readers to look into this issue and try to figure out its impact on you and your businesses. Contact your state and federal representatives and get involved to stop this. If necessary get your attorneys involved. We need both state and federal legislation to stop this from moving forward. This is a huge issue with massive implications. Please get informed and involved. I also imagine that there are readers of this blog who have first hand experience in dealing with the F.S. on this issue. In my mind, it would be a benefit to everyone if those folks shared their stories. Thanks for reading.
