A proposed U.S. Forest service regulation is nothing more than an attempt to circumvent Congress and grab control of Utah’s water, according to the Utah Farm Bureau.
Last May the Forest Service published a proposed directive for groundwater management on national forest system lands. It establishes goals and clarifies responsibilities for groundwater resource management at each level of the Forest Service.
It also provides direction for evaluating proposed Forest Service activities and special uses of groundwater resources on national forest system land, according to Forest Service documents released with the directive.
The directive is an administrative rule that required a public comment period that ended on Oct. 3 but requires no action by Congress.
While the Forest Service insists the directive will not interfere with state-issued water rights, Farm Bureau officials say they have reason not to trust the Forest Service.
Leland Hogan, president of the Utah Farm Bureau and a Tooele County rancher, said Forest Service officials in the spring of 2012 tried to “coerce” livestock ranchers in Vernon to sign change applications on their private livestock water rights — which would have given the Forest Service control of their water — in order to keep their permits for grazing on Forest Service land.
As a result, with the support of the farm bureau, the Utah legislature passed a non-binding resolution in 2014 that called on state, county and local governments to protect and defend jurisdiction over the state’s water resources.
The resolution reaffirmed that Utah maintains its right to own and control water in the state, including water originating on public lands.
However, the proposed directive would empower the Forest Service to demand the transfer of privately held livestock water rights to the federal government as a condition of the agency renewing a rancher’s grazing permits.
The federal government determines access and use of historic grazing allotments. If the Forest Service terminates a rancher’s ability to graze land, the jointly held livestock water rights would become “sole ownership” of the United States, according to Randy Parker, Utah Farm Bureau executive director.
“That taking of water rights would be an unconstitutional taking, according to the fifth amendment to the constitution,” he said. “It also would exceed the authority granted to the Forest Service by Congress.”
No federal agency, including the Environmental Protection Agency or the Army Corps of Engineers, has ever tried to regulate groundwater, according to Parker.
If the Forest Service implements the directive, the agency will have virtual control over Utah’s groundwater because over 70 percent of Utah’s groundwater originates from Forest Service land, Parker said.
The new directive would directly impact ranchers in the Vernon, Rush Valley, and west of Grantsville areas, according to Hogan.
“There are ranchers in these areas that graze cattle on both private and Forest Service land using their state-approved water rights from water originating on Forest Service land,” he said. “Some of these water rights pre-date the existence of the Forest Service.”
The federal government’s attempt to step into groundwater regulation flies in the face of 150 years of western water law, according to Hogan.
“Regulation of groundwater has always been the territory of the states,” he said.
The Forest Service maintains that the directive will not change or challenge the authority of states to regulate water.
“The proposed directive does not specifically authorize or prohibit any uses, and is not an expansion of authority. The agency recognizes and honors the States’ authority in the allocation and appropriation of water. The proposed directive would not infringe on a States’ authority to allocate water, nor would it impose requirements on private landowners,” reads a press release on the directive released July 31 by the Forest Service.
Ranchers in Utah have reason not to trust the Forest Service. The Forest Service has an agenda to reduce the amount of grazing permits in Utah, according to Parker.
“In 1940, the Forest Service issued livestock grazing permits for sheep and cattle for 2.7 million animal unit months — the amount of forage needed to sustain an animal for one month — in Utah,” Parker said. “By 2012 that number dropped to 614,000.”
This new directive gives the Forest Service more ammunition to carry out their anti-grazing agenda, said Parker.
He added that the dramatic cuts in livestock grazing AUMs, especially the major reduction in the Utah sheep herd, has robbed hundreds of millions of dollars from farmers and ranchers, rural communities, rural economies, funding of critical infrastructure needs and the Utah economy.
Last June, Parker appeared before the United States House of Representatives Subcommittee on Water & Power. He testified that the Forest Service’s attempt at greater control would create uncertainty and could unravel more than 150 years of water rights established under western water law.
“Based on the Forest Service’s flawed assumptions and lack of legal authority, we respectfully ask the agency to withdraw the proposed directive in its entirety,” Parker wrote in the Utah Farm Bureau’s written response to the Forest Service’s proposed directive.
The public comment period for the proposed directive ended on Oct. 3. The Forest Service is required to consider the public comments they received during the comment period as they prepare the final directive.