WASHINGTON, June 24, 2014 -- EPA’s Waters of the U.S. rule had another day under congressional scrutiny Tuesday, but this time the embattled proposal had a partner in the limelight – a Groundwater Resource Management Directive proposed by the U.S. Forest Service (USFS).

The hearing by the House Natural Resources Water and Power subcommittee’s, with the pointed title, “New Federal Schemes to Soak Up Water Authority: Impact on States, Water Users, Recreation and Jobs,” examined both the Waters of the U.S. rule as well as the Forest Service’s Groundwater Directive. The agriculture community has known about Waters of the U.S. for some time, but the Groundwater Directive has only popped up recently; it is dated on the Forest Service website on May 2 and was officially published in the Federal Register May 6. 

The Forest Service says the directive would “require the evaluation of potential impacts from groundwater withdrawals on [National Forest System] natural resources.” Many witnesses at Tuesday’s hearing were concerned this was an encroachment on state’s rights.

“The assumptions, definitions, and new permitting considerations contemplated under the proposed Directive materially interfere with Wyoming’s authority over surface and groundwater, and will negatively impact the state’s water users,” Patrick Tyrrell, Wyoming’s State Engineer, said in a written statement.

Tyrrell went on to question if the authority for such a directive over groundwater even exists. He said the USFS failed to mention any particular federal statute under which it has the authority to regulate groundwater “because there is no such authority under federal law.”

Committee members and witnesses alike also expressed concern that additional regulation on groundwater would lead to questioning where groundwater stopped and surface water began, especially due to the lack of clarity on the “upland” rule.

“The presumed connection of groundwater and surface water has impacts we can’t see,” Tyrrell said.

Aside from discussion on the groundwater directive, several committee members directed criticism at the Waters of the U.S. rule as being another example of government overreach.

“Now someone is telling me (these ditches) are no longer mine, that they belong to the federal government,” Rep. Doug LaMalfa, R-Calif. said in reference to irrigation ditches on his family’s farm. “I don’t see them paying taxes on (the ditches),” he said.

Rep. Jared Huffman, D-Calif., defended the EPA plan.

“(The proposed rule) is not an expansion of Clean Water Act authority,” he said. “To continue to pretend like this is some kind of vast overreach frankly, I think, calls into question the credibility of this hearing.”

Rep. Grace Napolitano, another California Democrat, noted in her opening statement that many of the same concerns had been brought up at previous congressional hearings, and pointed out that both discussion topics were currently still proposals and open to public comment.

Lawmakers from both parties expressed displeasure that federal officials were not at the hearing. USFS Chief Tom Tidwell and Bureau of Reclamation Acting Commissioner Lowell Pimley were invited to the hearing, but both submitted written comments and were not in attendance.

“To add arrogance to injury, the agencies responsible for these proposals have the invitation to this subcommittee to explain themselves and their conduct, submitting at the last minute fatuous and wholly unresponsive written testimony,” Subcommittee Chairman Tom McClintock, R-Calif., said. “Their action speaks volumes about their lack of defense for these proposals.”


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