About our Federal Affairs Committee
Part of the Water Congress's role as the leading voice of Colorado's water community is to stay on top of issues and legislation occurring on a national level that may affect Colorado and are important to our members.
We accomplish this in large part through our active membership in the National Water Resource Association (NWRA), a federation of state water organizations concerned with the appropriate management, conservation and use of water and land resources on a national scope. The Water Congress Federal Affairs Committee works closely with the NWRA leadership, enabling us to provide Water Congress members greater access to federal water actions and breaking news that may impact in our state.
Current Federal Water Legislation CWC Supports:
H.R. 695 Healthy Forest Management and Wildfire Prevention Act
H.R. 1732 Regulatory Integrity Protection Act of 2015
H.R. 1830 Water Rights Protection Act
H.R. 2028 Energy and Water Development Act FY 2016
S.R. 1036 Sage-Grouse Protection and Conservation Act of 2015
Waters of the U.S.
On April 21st, the EPA gave Federal Register notice of Clarification of Clean Water Act Definition of "Waters of the U.S." The new proposal represents a potential expansion of the historical scope of federal jurisdiction. “Under the proposal, all tributary and adjacent waters would now be “jurisdictional by rule”, the definition of “tributary” and the scope of what is “adjacent” would both expand, a new concept of “neighboring waters” would be incorporated, and the significant nexus test would allow for a watershed scale determination of jurisdiction. Many of the dry arroyos, washes, ditches and ephemeral or intermittent water bodies so common in the arid West could become the subject of federal oversight”.
WOTUS Comment Letters
Groundwater
On May 6, 2014, the United States Forest Service (“NFS”) published notice of a draft directive entitled “Chapter 2560 Groundwater Resource Management” that establishes a new chapter to the Forest Service Manual 2500 Watershed and Air Management (hereinafter the “Directive”). The Directive states that its purpose is to set forth direction on managing groundwater resources associated with National Forest System lands and clarify roles, responsibilities, and procedures for addressing groundwater resource management. Comments are due on the Directive by August 4, 2014.
The Directive employs new rules and management directives concerning both groundwater quality and quantity on NFS lands. With respect to groundwater quality, the Directive provides new direction for evaluating and restricting activities on NSF lands that could negatively impact groundwater quality and provides the direction concerning the cleanup of groundwater that has already been contamination. Concerning groundwater quantity the Directive:
- Requires NFS staff to evaluate all state water court applications for possible impacts to “NFS groundwater resources"
- Mandates ill-defined conservation measures for wells diverting from NFS lands
- Directs NFS staff to evaluate the impact of groundwater pumping on private lands on “NFS groundwater resources"
- Creates broad discretion to reject special use permits for wells on pipelines based on undefined impacts to “NFS groundwater resources;”
- Mandates significant monitoring and information submissions by those diverting from NFS lands
- Seeks to implement a well abandonment program
The NFS is pursuing the Directive despite the fact that it does not have a legal interest in the groundwater underlying NSF lands or any direction from Congress granting it the authority to regulate groundwater.
http://www.fs.fed.us/geology/groundwater.html
Comment Letters:
Ski Area Water Rights
The United States Forest Service ("USFS") issued the long awaited new Ski Area Water Rights Permit Clause on June 20th. Although the new Permit Clause does not explicitly claim federal title to state adjudicated water rights, it restricts nearly every component of ski area water rights, including alienability of augmentation sources and water rights that do not originate on USFS land. It also hamstrings ski areas from adjudicating or changing water rights and requires that the USFS be given a power of attorney to make water rights transfers. Finally, ski areas are required to waive any claims against the United States for compensation for any water rights that it transfers, removes or relinquishes. A coalition of municipalities and ski areas in Colorado are reviewing legislative, administrative and litigation options to challenge the new Permit Clause based on the USFS' lack of legal authority to restrict state adjudicated rights. Comments to the new permit clause may be submitted by August 22nd.
Water Transfer Rule
The “water transfer rule”, adopted by EPA in 2008, can be found at 40 CFR 122.3(i). It provides an exemption from the point source discharge permitting requirements of the Clean Water Act for discharges from “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use.” Such transfers are extremely common in Colorado, and throughout the West, where water is moved between basins and sub-basins utilizing ditches, tunnels, pipelines, canals and other such conveyances in order to meet essential agricultural, municipal and industrial water demands. [read more]
San Juan Forest Plan
The Forest Service and BLM have recently issued a final joint Land and Resource Management Plan for federal lands in southwestern Colorado (the “Plan”). The appeals and request for a Discretionary Review by the Secretary of Agriculture have been denied. Protests were filed to the BLM portion of the plan and all indications are that the protests will be denied and a final decision (ROD) will be issued by the end of the federal fiscal year (September 30, 2014). The Plan threatens the longstanding collaborative process between the state and federal governments and local stakeholders that has prevailed in Colorado for the last decade. As early as 2003 the Colorado General Assembly passed a Joint Resolution urging the Forest Service to stop attempts to obtain bypass flows in water related special permit renewals, and asking it to seek any desired protections through the CWCB instream flow program consistent with state law. (See, HJR 03-1046). Consistent with the direction given by the legislature the CWCB and the Forest Service entered into an MOU in 2004 and renewed the agreement in 2009, pledging to work together to ensure the continued operation of non-federal facilities on federal lands. This MOU was extended for one year by the USFS and the CWCB/DNR in July of 2014. Following the initial MOU, the Forest Service confirmed in a letter to Senator Allard in 2005, “the Forest Service has agreed to work cooperatively with Colorado on instream flow issues rather than take independent regulatory actions” and that existing voluntary mechanisms including the MOU with Colorado are “adequate to protect and enhance instream values … without the need for additional bypass flow requirements”