Thursday, October 16, 2014

Groundwater experts, water law experts, and conservation groups tell the Forest Service to do more to protect groundwater

Responding to a proposed agency-wide U.S. Forest Service groundwater policy, more than 125 groundwater scientists, legal experts, and conservation groups call on the Forest Service’s Chief Tidwell and U.S. Department of Agriculture’s Secretary Vilsack to protect groundwater as a public national resource. These letters urge the Forest Service to embrace its role and duty to protect and sustainably manage water originating in and passing through National Forest lands. For instance a letter from a group of prominent natural resources and water law professors states “The Forest Service is a key player in watershed management; over 66 million people depend on National Forests for clean drinking water from surface and groundwater resources. Waters originating on Forest Service lands are vital to farmers and ranchers, and are also critical to fish, wildlife and wetland resources nation-wide.” As detailed in the comments, the Forest Service has the authority to and should lead the management of groundwater resources on National Forest lands. Further the agency should take the policy a step further to ensure it establishes consistent and comprehensive strategies for groundwater management across the country so that these resources remain available for generations to come. One of the arguments lobbed against this new policy is the assertion that it infringes on state water law, particularly in the western U.S. where prior-appropriation is the standard system also known as “first in time, first in right.” In particular, the Western Governors Association believes that the Directive will violate such state water rights. But this is really an argument for the unworkable status quo, rather than a valid legal concern.  In their letter to the U.S. Forest Service, a group of prominent natural resources and water law professors explain that the proposed policy is well within the existing legal structure of western water law. They explain that:  “It is well-settled that the Forest Service has broad legal authority and responsibility to manage federal lands and resources. Based on the government’s plenary authority to manage federal land and resources under the Property Clause, authority that has been long-recognized by the U.S. Supreme Court, Congress has passed a number of laws that require the Forest Service to protect water resources, including groundwater.”...more

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