Tuesday, December 30, 2014

Forest Service betrays its heritage, assaults water rights

By Tony Francois
For the Capital Press


 
As many American farmers and ranchers are aware, these days the U.S. Forest Service is no friend to privately held water rights.

Right now, for instance, the agency is proposing broad new restrictions and controls on groundwater rights in and near national forests. These mandates would apply wherever the exercise of water rights would affect forest resources (a vague concept that allows regulators maximum discretion to pick and choose which water-rights owners they will target).

Under the proposals, when property owners need a permit from the Forest Service, they could be forced to surrender groundwater rights as the price of receiving it. And water-rights holders will be subject to onerous construction, operating, and reporting standards for wells and water pipelines — which many smaller groundwater users will have difficulty meeting.

Many private property owners have weighed in against what amounts to a sweeping attempt to transfer private water rights to public ownership or control.

To the extent these regulations would lead to the confiscation of water rights without compensation, they violate the Takings Clause of the Fifth Amendment. Water rights are a form of private property, after all. But there is another basic problem — and fundamental irony — as well: The proposed rules are in tension with the historic mission of the Forest Service itself.

Indeed, the agency’s current adversarial stance toward private water rights represents a 180-degree reversal from its original purpose and objectives. It is time to restate those objectives — and to demand that the agency recommit itself to them.

In this context, there are two important facts to keep in mind about the national forests and the Forest Service.

First, by the time they were established, most of the land within them that was available for farming had been settled and was under private ownership, and the water resources necessary for agriculture had already been largely developed and subject to privately held water rights.

Second, one of the principal purposes of the establishment of national forests was to ensure that these water resources, which had been previously developed, could be effectively used by farming communities — by “securing favorable conditions of water flows,” as the founding statute put it.


Tony Francois is an attorney with the Pacific Legal Foundation. He authored PLF’s comments to the U.S. Forest Service in opposition to the agency’s proposed new mandates on owners of groundwater rights.

 

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