Federalization of Water

August 14, 2014 8:00 am • Margaret Dayton Senate Deliberations

In 1877, to support development in the western states, Congress passed the Desert Land Act, effectively giving jurisdiction for the allocation and management of water resources exclusively to the states. Thus — by statute and tradition — the federal government and its various agencies have no role in the allocation and management of Utah’s water resources.

However, on May 6 of this year, the United States Forest Service published a Federal Register notice regarding a directive on Groundwater Management that will change the statute and disregard the tradition.

The Federal Register was created as part of the New Deal legislation in the 1930s enabling Congress to delegate its responsibilities of legislating to the newly created agencies. Now, federal agencies such as the National Forest Service, Department of Education or the EPA have the authority to create rules or issue edicts based on directive from the president, recommendations from Congressional committees, or even constructed for their own agendas. Those rules have the same effect as a law that has been passed through the regular legislative process. Creating laws through this bureaucratic method is something I do not endorse.

Elected representatives, voting as is done in the legislature, do not approve the rules. Agencies are required to inform the public in the Federal Register of their planned rule changes, but only approval from the president is necessary for the rule to become law. The only way for a rule to be nullified by Congress is for both the House and Senate to pass a resolution of disapproval — called the Congressional Review Act — and then the president must sign it as he does any other bill. (This has only happened once.)

The new Groundwater Management Plan is set to become law through this process. It directs a consideration of groundwater resources in agency activities, establishes an approvals and authorizations process, and directs source protection and water conservation. This may sound benign, but in reality it is anything but.

The document’s summary makes a subtle reference to restoration of forest health, but it makes specific reference to compliance with Executive Order 13514, signed by President Obama in 2009. That order was to reduce potable (drinking water) intensity (use) by 26 percent and industrial, landscaping and agricultural water intensity by 20 percent, by the year 2020.

In effect, this new directive will give the U.S. Forest Service full authority to direct, control and monitor all of the waters that originate, pass through, “or are adjacent to” any land that is federally controlled. In Utah, more than 60 percent of the land is owned or controlled by the federal government, so adding the “adjacent to” qualifier could encompass nearly the entire state.

This Groundwater Management Plan consists of nothing more than a regulatory taking of our water without compensation.

It gives water rights to the Forest Service that is outside the appropriations process and will have a significant effect on the state’s economic development, our agriculture community, energy development, most outdoor recreation and the overall livability of Utah.

There is simply no authority or any demonstrable need for the U.S. Forest Service to be involved in such a taking — except for compliance with an Executive Order.

I serve as the Senate Chair of the Water Development Commission. Representative Keith Grover is the House Co. Chair. The WDC is made up of 13 legislators and 15 members of the water community including representatives of water districts, the agriculture community and organized environmental groups.

On July 15, in an open and recorded meeting, the WDC’s only agenda item was the proposed United States Forest Service Directive for Groundwater Resource Management. Chris Iverson, Deputy Regional Forest for Region 4 of the U.S. Forest Service (which includes Utah) and Kathryn Conant, Director of Lands and Minerals for Region 4, explained the Groundwater Management Plan at that meeting. (You can listen to the full meeting online on the legislature’s website, read all the submitted comments and see the information under the “meeting materials” tab.)

After presentations from water law experts, state water officials and some of the impacted organizations, a motion was made to have the WDC Chairs send a letter to the U.S. Forest Service outlining our concerns and frustrations with the Groundwater Management Plan and asking the U.S. Forest Service to withdraw said plan.

The motion passed unanimously with members of both legislative chambers and both political parties along with unelected Commission members in full support of the letter. Nothing the Water Development Commission has done thus far is of greater importance than addressing this serious issue.

Accordingly, the letter has been prepared and sent to the U.S. Forest Service. In doing so we added our united voice to that of the Western Congressional Caucus and other organizations asking the U.S. Forest Service to function according to existing prescribed law and to resist this unlawful taking of Utah’s water.

Surrendering control of so much, if not all, of Utah’s water to the Federal Government through a bureaucratic rule-making process is a serious issue of no small significance. If this directive is enforced, it will affect tourism, agriculture, industry, our backyard gardens and even our ability to drink and flush.