TESTIMONY: James D. Ogsbury on H.R. 2371 and Water Rights Protection Act Discussion Draft

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United States House of Representatives Committee on Natural Resources
Subcommittee on Water, Power, and Oceans

Testimony of James D. Ogsbury, Executive Director
Western Governors' Association
May 17, 2017

Chairman Lamborn, Ranking Member Huffman, and Members of the Subcommittee, the Western Governors’ Association (WGA) appreciates the opportunity to provide written testimony addressing states’ rights to manage and allocate their water resources.  WGA is an independent organization representing the Governors of 19 western states and 3 U.S.-flag islands.  The Association is an instrument of the Governors for bipartisan policy development, information-sharing, and collective action on issues of critical importance to the western United States.  The Governors appreciate the opportunity to provide background testimony relevant to the Subcommittee’s work on water resources policy.

Water is a precious resource everywhere but especially in the arid West.  Water regimes are different in the West – our hydrology and the legal structures governing water rights and usage are distinct from the rest of the nation.  The Western Governors have adopted a policy resolution (WGA Policy Resolution 2015-08, Water Resource Management in the West) that articulates a fundamental fact and principle recognized by both Congress and the United States Supreme Court:  

States are the primary authority for allocating, administering, protecting and developing water resources, and they are primarily responsible for water supply planning within their boundaries.  States have the ultimate say in the management of their water resources and are best suited to speak to the unique nature of western water law and hydrology.

The Governors’ statement is the starting point of WGA’s work on water policy and should be the starting point of any federal action on water as well.  In recent years, however, several federal regulatory proposals have inadequately recognized state authority over water.  In WGA Policy Resolution 2015-08, Water Resource Management in the West, Western Governors assert:

The federal government has long recognized the right to use water as determined under the laws of the various states; Western Governors value their partnerships with federal agencies as they operate under this established legal framework.  While the Western Governors acknowledge the important role of federal laws such as the Clean Water Act, the Endangered Species Act and the Safe Drinking Water Act, nothing in any act of Congress or Executive Branch regulatory action should be construed as affecting or intending to affect states’ primacy over the allocation and administration of their water resources.

Nowhere is the need for substantive consultation between states and the federal government more critical than in the water arena.  WGA Policy Resolution 2017-01, Building a Stronger State-Federal Relationship, states that:

Each Executive department and agency should be required to have a clear and accountable process to provide each state – through its Governor as the top elected official of the state and other representatives of state and local governments as he or she may designate – with early, meaningful and substantive input in the development of regulatory policies that have federalism implications. This includes the development, prioritization and implementation of federal environmental statutes, policies, rules, programs, reviews, budgets and strategic planning.

Certain previously proposed rules, regulations, and directives have threatened to disrupt the traditional balance of state and federal power over water management and protection, and preempt state water resource authority.  Western Governors have consistently communicated concerns regarding the preemption of, and interference with, state water authority to federal agencies through public comments.  WGA Policy Resolution 2017-01, Building a Stronger State-Federal Relationship, states that:

In the absence of Constitutional delegation of authority to the federal government, state authority should be presumed sovereign.  Accordingly, federal departments and agencies should, to the extent permitted by law, construe, in regulations and otherwise, a federal statute to preempt state law only when the statute contains an express preemption provision or there is some other firm evidence compelling the conclusion that Congress intended preemption of state law, consistent with established judicial precedent.

While states have primary authority over their water resources generally, their authority over groundwater management and allocation is even more extensive and has not been expressly preempted by federal legislation.  WGA Policy Resolution 2015-08, Water Resource Management in the West, affirms that:

States have exclusive authority over the allocation and administration of rights to use groundwater located within their borders…The federal government should not develop a groundwater quality strategy; instead, it must recognize and respect state primacy, reflect a true state-federal partnership, and comply with current federal statutory authorities.

Western Governors communicated their concerns regarding a previously proposed Directive on Groundwater Resource Management, issued by the U.S. Forest Service (USFS), which included language that could have been construed to assert USFS ownership of state groundwater and lead USFS employees to make decisions regarding special use permits based on the amount of water withdrawn under a state-issued water right (79 FR 25815, May 6, 2014).  Additionally, the proposed Directive instructed USFS employees to assume that surface water and groundwater are hydraulically connected, regardless of whether state laws treats these resources as separate.  This assumption disregarded long-standing state laws and conflated separate authorities over groundwater and surface water. 

Another previous proposal of USFS threatening states’ primary authority over water resources involved an addition to the agency’s handbook regarding ski area water rights (79 FR 35513, June 23, 2014).  As the Western Governors stated in their formal comments on the proposal, some of the proposed language appeared to be an agency effort to utilize special use authorization as a means by which to manage water use and water rights on National Forest System lands and to add a layer of federal regulatory oversight to state-managed water rights systems. On December 30, 2015, USFS issued a modified directive that does not provide for ski area water rights to be acquired in the name of the United States; instead, the final directive focuses on sufficiency of water to operate ski areas on NFS lands.

The 2015 Clean Water Rule, promulgated by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE), prompted Western Governors to submit comments expressing various process-related, as well as substantive, concerns.  The Rule, which is the subject of agency review under an Executive Order dated February 28, 2017 (and currently stayed by the U.S. Court of Appeals for the Sixth Circuit), would create ambiguity in defining the jurisdictional bounds of the Clean Water Act (CWA).  While the Rule exempts groundwater from its scope, a “shallow subsurface flow connection” – a term the Rule fails to define – could establish jurisdiction over isolated surface waters.  Additionally, EPA’s Scientific Advisory Board (SAB) report on the connectivity of waters indicated support for using connectivity as a scientific basis for even broader CWA jurisdiction than was asserted under the Rule.  Furthermore, no state representatives participated in the SAB review of EPA’s connectivity report.  Accordingly, the review was deprived of the regulatory expertise, scientific resources, and on-the-ground knowledge possessed by state professionals.  The EPA and USACE have recently begun renewed efforts to enact a rule that clarifies which water bodies fall under CWA jurisdiction.  WGA, as well as individual states, have been approached by the agencies in order to seek their concerns and viewpoints.  Western Governors applaud this outreach and look forward to a robust and ongoing dialogue between the states and federal agencies in the development of a new rule.

In December 2016, USACE proposed a Rule seeking to preempt states’ primary authority over waters impounded in USACE reservoirs.  Western Governors submitted comments in response to the proposed Rule expressing concerns that: (i) federalism implications were not properly evaluated and discussed by the agency with the states; (ii) states were required to relinquish their primary authority over historic natural flows in the rivers, which was never contemplated by the applicable federal statutes under which USACE was developing the Rule; and (iii) the proposed Rule improperly denied access to divert and appropriate natural flows under state water law. 

In conclusion, state authority is the cornerstone of effective water management in the West.  This is not simply a matter of precedent; states are best situated to understand their own unique legal frameworks, local hydrology and citizen needs.  Federal efforts to assume greater authority over water jeopardize the distinct advantages of on-the-ground resource management.  Congress and the Supreme Court have squarely and repeatedly affirmed state authority over water through a litany of court opinions and statutes commanding federal deference to the states with respect to water management and allocation.  Western Governors are committed to the preservation and responsible exercise of that authority.  We welcome the opportunity to partner with the Subcommittee and federal agencies to maintain states’ authority over their water resources.

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