The United States Forest Service is attempting to “federalize the waters of the states” through its proposed Groundwater Resources Management Directive. 

With the recent deadline for comments, the Utah Farm Bureau is calling on the federal agency to fully withdraw the proposal pointing out a lack of Congressional authority and the tremendous damage and uncertainty it would create for 150 years of water law, private property rights and the western economy.

For the first time, an agency of the federal government has claimed authority to regulate the groundwater of the states. This is just the latest attempt by the Forest Service to claim privately held water rights since the Congressionally-panned “water clause” and “joint ownership” requirement for ski resorts and livestock ranchers in 2012.

“The proposed directive attempts to claim regulatory authority over waters flowing from lands managed by the Forest Service,” said Randy Parker, Chief Executive Officer of the Utah Farm Bureau Federation. “This attempted federal water grab seeks to go around state laws and challenge private property rights while giving the agency unprecedented control over water and its use across the West.”

While Utah is a public lands state with nearly 70 percent controlled by the Forest Service and Bureau of Land Management (BLM), 70 percent of the state’s freshwater comes from Forest Service lands. Nationally, according to the Forest Service, “over half of the freshwater in the west flows from System lands.” Beneficial use principles and long-standing state law have for nearly 150 years provided for the judicious use of our waters and protected privately held water rights.

Water is the lifeblood of all farmers and ranchers, but it is especially important in the arid West. The Forest Service groundwater directive, like the Obama Administration’s flawed proposal to redefine the Clean Water Act and “waters of the United States”, seeks to stretch federal authority over water resources at the expense of private property and rights granted the states by Congress. These rights date back to the Ditch Act of 1866 and the McCarran Amendment of 1952.

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. Where the federal government determines access and use of historic grazing allotments, if the Forest Service terminates a rancher’s ability to graze land, the coerced jointly held livestock water rights would become “sole ownership” of the United States. This is a government taking without just compensation.

“History suggests it’s only a matter of time until these grazing rights belonging to generations old family cattle or sheep ranching families come under the federal axe and become the sole ownership of the United States,” Parker said. “Over the past half century or so, more than 75 percent of livestock grazing rights on Forest lands have been terminated by the United State Forest Service.”

On June 24, Parker testified before the United States House of Representatives Subcommittee on Water & Power, pointing out the Forest Service’s attempt at greater control “creates uncertainty and could unravel more than 150 years of water rights established under western water law. It would undermine the states and the principles the western economy is built on.”

According to the U.S. Supreme Court in Solid Water Agency of Northern Cook County vs. U.S. Army Corps of Engineers, federal agencies have regulatory limits and cannot “push the limit of Congressional authority.” America’s High Court further warned against regulatory agencies “altering the federal-state framework by permitting federal encroachment upon traditional state power.”

In its official testimony, the Utah Farm Bureau calls on the U.S. Forest Service to fully withdraw the proposed directive because the agency obviously lacks authority.

“If the Forest Service succeeds in this attempt, an agency of the federal government would have gained unprecedented control over waters of the sovereign states through a purely administrative action,” Parker said. “This federal regulatory overreach adds to a growing list of actions by the national government to secure greater control over the natural resources and the people of the West.”