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Utah, Western states say feds are all wet on groundwater rule

Published: Monday, Sept. 15 2014 6:05 p.m. MDT

The Provo River flows below the Jordanelle Dam on Thursday, Sept. 4, 2014.

Kristin Murphy, Deseret News

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SALT LAKE CITY — Utah leaders are among those in Western states who say a Forest Service proposal needs to be doused before it gains any momentum because it usurps states' dominion over water rights and is akin to a water grab by the federal agency.

Members of the Utah Water Development Commission unanimously penned a letter earlier this summer emphasizing their concern over the proposed Forest Service directive on groundwater management and are meeting again Tuesday to discuss the issue.

The Forest Service, in response, said the proposal is a planning document for employees that is intended to make clear that groundwater as a resource should be managed like any other resource when it comes to the issuance of special use permits.

Chris Iverson, deputy regional supervisor over the Intermountain region that includes Utah, emphasized that the proposed directive unveiled in May and open for comment until Oct. 3 is not an attempt by the agency to trump state purview of water rights.

"The language expressly acknowledges the authority of the states to manage and adjudicate water rights," Iverson told the commission in July. "The fundamental purpose of this to provide a policy as we evaluate groundwater resources."

Iverson added that the idea is for the agency to formalize consideration of groundwater and its role in watersheds as it weighs special use permits — which are issued for a wide array of uses on Forest Service land such as ski resorts and grazing.

The rule, which is still in draft and likely will not be acted on until next year at the earliest, does not grant the Forest Service any new authority or upend state water law, he stressed.

But critics of the proposal remain unconvinced the directive is benign, which is one of the reasons Utah commission Senate Chairwoman Margaret Dayton, R-Orem, wanted a renewed discussion Tuesday. The commission is meeting at 3 p.m. Tuesday in Room 30 of the House Building at the state Capitol complex.

"We want to keep this foremost in the public's mind," she said. "We want to convey we have not heard anything back from the Forest Service with our letter, that there has been no response, and we want to make a report from the other groups that are involved in this."

Dayton said the proposed Forest Service directive on groundwater evaluation in a state as dry as Utah that has so much federal land should give every resident pause.

"It is a regulatory taking of our water with no accountability or no authority," she said. "Here in our desert state we have got to have water. We have to have water for our food, fiber and for our faucets."

The Western Governors' Association has voiced concern over the directive, indicating it believes any formalized policy shift would have "significant implications for our states and our groundwater resources."

In its letter to Tom Vilsack, U.S. secretary of Agriculture (the department that oversees the Forest Service), the association asked that a number of its concerns and questions be addressed, including the legal basis for the directive, if it would invoke new regulatory requirements for states or obligations for water right holders and what scientific assumptions are being made about the resource itself.

The proposal also raised the ire of the 40 members of the Congressional Western Caucus, the American Farm Bureau and the Western States Water Council.

Kent Jones, Utah's state water engineer, said he's concerned the proposal, if enacted, would interfere with existing water right approvals.

Dayton asked Steve Clyde, one of Utah's foremost experts on state water law, to render his analysis of the directive at July's meeting of the water commission.

Clyde said the directive — despite what agency leaders may say — is a way for the Forest Service to do an end run out around a congressional act which gave jurisdiction and allocation of water management to the states.

Because the agency has been unsuccessful at winning that control through litigation, Clyde said it is trying to get dominion over water via policy and regulation.

"It is very problematic, it is very insidious and I think it is a very, very real issue," he said. "I think this is one more clever attempts by those in Washington who are dictating the policy of the Forest Service to take our private water rights."

Email: amyjoi@deseretnews.com

Twitter: amyjoi16

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