Wyoming Water Association looks at federal issuesWritten by Saige Albert
Casper – The Wyoming Water Association saw an expanded crowd during their 2014 Annual Meeting and Educational Seminar, held Oct. 29-30 in Casper.
With a wide array of topics on their radar, the Association heard updates from numerous agency heads and representatives of the congressional delegation on federal water issues.
Among federal issues discussed was the proposed Waters of the U.S. (WOTUS) rule and a U.S. Forest Service groundwater directive.
“Water is the most fundamental issue in the state of Wyoming and the West,” read a letter from Senator John Barrasso. “The need to provide a clean, abundant supply of water is essential to the survival of the Intermountain West.”
Waters of the U.S. remains at the top of the priority list for water users across the U.S.
Governor Matt Mead, Senator Barrasso and Becky Cole, a representative of Senator Enzi, all emphasized the importance of the WOTUS proposed rule.
“Farmers, ranchers, small business owners and rural communities in our state cannot prosper if Washington bureaucrats in the EPA and Army Corps of Engineers move forward with their Waters of the U.S. rule that would seize all state-controlled water,” Barrasso wrote.
He noted that the proposed rule would give EPA and the Corps nearly unlimited regulatory authority over state and local waters.
Cole noted, “The term ‘navigable’ water has limited federal agency’s Clean Water Act jurisdiction, particularly on state and private lands. I do think the Waters of the U.S. rule has an important impact on federal land management and how it affects water.”
She further noted that the accompanying agriculture interpretive rule is also concerning.
“The agriculture interpretive rule would exempt agriculture practices that are currently excluded from permitting under the Clean Water Act,” she described, “but only after they meet conservation practices.”
Cole adds, “American Farm Bureau calls the rule a ‘serious threat to famers, ranchers and landowners,’ even if that is not the intent of EPA.”
A groundwater directive released by the Forest Service in May also raises concern for water managers. The directive, titled “Proposed Directive for Groundwater Resource Management,” proposes to amend the internal agency directives to “establish direction for management of groundwater resources on National Forest System (NFS) lands.”
Cole points out that the Forest Service has admitted to only having four staff members with expertise in groundwater, and they further noted that they typically defer to the state’s groundwater permitting authorities.
Forest Service says, “Specifically, the proposed amendment would provide direction on the consideration of groundwater resources in agency activities, approvals and authorizations; encourage source water protection and water conservation; establish procedures for reviewing new proposals for groundwater withdrawals on NFS lands; require the evaluation of potential impacts from groundwater withdrawals on NFS resources; and provide for measurement and reporting for some larger groundwater withdrawals.”
Rick Deuell of the Wyoming State Engineer’s Office noted that there is some concern with the way the Forest Service views waters.
“When water is adjudicated, it is tied to the land, and the adjudication is in the name of the landowner – which is the federal agency,” he explained. “I’ve had a few comments on that because Wyoming owns the water.”
“The other issue is hydraulic connectivity between groundwater and surface water,” Deuell said. “The Forest Service rule assumes the groundwater and surface water are connected unless proven differently.”
He continued, “Based on our rules, our assumption is that groundwater and surface water are separate unless a study or some other information indicates otherwise.”
Those people with adjacent lands are concerned because the directive places burdens on those seeking water rights, requiring a study of the impacts on groundwater.
Cole adds, “The Forest Service directive calls for the agency to manage its groundwater resources by controlling any neighboring resources that are hydrologically interconnected.”
Hydrologically interconnected surface waters, she said, could appear on neighboring state and private lands and could impact future water development, as well as existing water rights.
“The other issue we have is based on beneficial use,” Deuell commented.
The Forest Service provides for uses based on groundwater-dependent ecosystems. Wyoming law does not identify groundwater-dependent ecosystems as a beneficial use.
“There is also a reference to a federal-reserved right of groundwater,” he continued. “We do not acknowledge or know of reserved groundwater rights. They have to be congressionally reserved or dictated by the courts.”
“We have a lot of issues with this directive and its interpretation,” Deuell said.
Bill Bass, acting deputy regional forester for the Rocky Mountain Region of the Forest Service, noted that the Forest Service permits 1,900 water uses, including reservoirs, dams, ditches and pipelines.
“The groundwater directives were made available for public comment,” he said. “It is not intended to infringe on states’ authorities to allocate water.”
Bass noted that the directive is a part of an internal directive not intended to affect state primacy on water.
“I expect a very serious response from Forest Service,” Bass added. “I think there are ways we can fix the policy.”
“In a state like Wyoming, where 50 percent of our land is federal, the burdensome regulatory process is a part of everyday life,” Cole commented, “but with the rules being proposed, our state is reliant on federal bureaucrats to tell us if we meet these new definitions.”
Awaiting federal action could be economically disastrous, she continued.
“Should the agency not make a determination, or make one contrary to outside organization’s interpretations, lawsuits could arise, halting the use of water or stopping future development,” Cole said.
The best chance to prohibit the actions moving forward, Cole continued, is to use the power of the purse.
“I’m hopeful that is what we will see in Fiscal Year 2015,” she said. “Senator Enzi encourages Wyoming residents to continue submitting comments and concerns for the official record.”
Save the date
Next year’s Wyoming Water Association (WAA) meeting will be held in Evanston in an effort to move the meeting around the state.
“Every other year, the meeting will still occur in Casper,” WWA President Bryant Startin said. “We like to move the meetings around the state when we can.”
Startin also mentioned that next year’s Wyoming Water Association tour will take place in the Torrington area.
Rick Deuell of the Wyoming State Engineer’s Office said that there are a handful of areas where the federal government works well with the state of Wyoming, citing Memorandums of Understanding (MOU) developed between the Wyoming BLM office, Rocky Mountain Region of the Forest Service, Intermountain Region of the Forest Service and the Wyoming State Engineer’s Office (SEO).
“The MOUs seem to be working pretty well,” Deuell remarked. “They have outlined that when the federal agencies are looking to use water on federal lands, they have to apply for the water rights and go through the permitting process the same as everyone else.”
The MOU also provides that if the Forest Service of BLM seeks a change of use or to abandon a water right, permittees are required to be noticed and provide permission.
“Part of the MOU also discusses who applies for water rights on federal land,” Deuell said. “Quite often, the BLM is the co-permit holder, and Forest Service always has permits in their name.”
“The MOU is working really well right now,” Deuell commented.