Government Goings-on

Just a few weeks ago, a former corporate board treasurer (6 years) alerted me to a new federal regulation. The U.S. Forest Service has issued a new directive applicable to all forests, but especially those in the West. More information on the new directive (including the directive itself) can be found here.

The Forest Service directive notes that groundwater and surface water are part of the same system. They are absolutely correct hydrologically. The Forest Service will issue new special use authorizations (and revise existing ones) for wells and water pipelines and evaluate which uses of groundwater will be considered beneficial. Flow meters and quarterly reporting of withdrawals for all wells pumping above 35 GPM will be part of the permit. The discussion accompanying the directive claims that all local processes will be followed and that no new powers are being asserted. That alone sets off alarm bells.

The Forest Service must now apply the Winters Doctrine, long the basis for Federal reserved rights to surface water, to groundwater under National Forests. While lawyers must debate this extension of a surface water doctrine to groundwater which has traditionally fallen under the authority of the states, the new directive appears to be an unusually long stretch of Federal authority. The Groundwater Management Act of 1980 already governs wells, recharge, and beneficial uses across the entire state of Arizona, although true regulation occurs in the Active Management Areas. This may be another indication that the current Administration, faced with an uncooperative Congress, is determined to govern through rule and policy in its final two years. Look for more new initiatives.

However, the directive itself has laudable goals: protection of groundwater-related ecosystems, management of groundwater resources to avoid depletion or contamination, and use sound science in making decisions. By closely regulating wells with a pumping capacity greater than 35 GPM, the Forest Service is doing on forests outside the AMAs what ADWR cannot. This can only help Arizona, not to mention other states without significant protections. As a silver lining, hydrologic studies will be needed prior to issuance of special use authorizations, and Forest Service recognizes that it must hire new hydrologists. Consulting firms may find additional work in doing the studies. Policies are shifting, like pack ice in the Arctic, and alert polar bears must stay nimble.

Alan Dulaney

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