By Derek Bradley
After receiving negative feedback from both the Western Governors’ Association and a large bipartisan group of House Committee on Natural Resources (both letters are linked below), the U.S. Forest Service (USFS) announced last week it was permanently withdrawing its proposed groundwater rule concerning groundwater management on national forest lands. The move comes after more than a year of consideration and a lengthy comment period.
In its testimony before the House Committee, the USFS stated the rule would not significantly impact state water management or give the USFS new authorities. The proposed language of the rule, however, raised concerns that this was not the case, and that if the rule went into effect state water management powers would be severely curtailed. From a water law perspective, the two major concerns with the rule were USFS’s attitude that it held title to all the waters on and under national forests, and an assumption that surface and groundwater are interconnected unless proven otherwise.
Current law, does not support USFS’s assumption that it holds title to all waters on or under federal forest lands, and the assumption of interconnectivity runs counter to many state laws. The proposed rule in these two respects could create an opportunity for the USFS to challenge water use on lands adjacent to national forests, even when water users hold a valid state water permit. Schroeder Law filed comments with the USFS outlining these and other concerns.
Ultimately, the USFS’ negative feedback on the expansive nature of this rule, likely prompted the proposed groundwater rule’s withdrawal. The news of the withdrawal was applauded by the Chairman of the House Committee on Natural Resources Congressman Rob Bishop as well as other members of Congress.
Western Governors’ Association Letter Opposing the Rule
US House Committee on Natural Resources Letter Opposing the Rule
Official Notice of Rule Withdrawal
