Proposed Regional Supplement for Water Uses and Development

AGENCY:

Forest Service, USDA

ACTION:

Availability of regional supplement for comment under 36 CFR part 216.5.

SUMMARY:

The Southwestern Region proposes to update the Region 3 Supplement to Forest Service Manual Chapter 2540—Water Uses and Development. This action is necessary to provide guidance for the analysis of groundwater development proposals under 36 CFR 251.5. The intended effect of this directive is to provide specific guidance for the protection of ground and surface water resources when water development is proposed for National Forest System lands.

DATES:

The public is invited to comment for 30 days beginning March 16, 2000.

ADDRESSES:

Southwestern Region, ATTN: Water Rights and Uses Specialist, 517 Gold Avenue SW, Room 5439, Albuquerque, NM 87102

FOR FURTHER INFORMATION CONTACT:

Lori Osterstock, 505-842-3254

SUPPLEMENTARY INFORMATION:

FSM 2500—WATERSHED AND AIR MANAGEMENT

R3 SUPPLEMENT 2500-2000-1

EFFECTIVE—DRAFT ONLY

CHAPTER 2540—WATER USES AND DEVELOPMENT

2541.03—Policy. Include high priority instream flows and standing waters when determining National Forest Water needs. Quantify and pursue State water rights for flows and standing waters not covered by the reservation doctrine after considering all strategic options. Strategy options include, but are not limited to;

1. Rely on senior and stable downstream appropriators to protect needed instream flows on the National Forest System.

2. Rely on constraints contained in special use permits as a means of maintaining instream flows or standing waters.

3. Protect instream flows or standing water through land acquisition.

4. Negotiate agreements or adjudication settlement stipulations that protect instream flows or standing waters.

2541.04c—Forest Supervisors.

Maintain and update annually the Forest's water uses, requirements, and rights inventory.

2541.35—Special Use Authorization for Water Developments. The following is guidance that specifically addresses the management of ground water resources. (See also Forest Service Manual (FSM) 2729).

Ground water beneath National Forest System (NFS) lands in the Region is a valuable resource that requires thoughtful and prudent management. Ground waters and surface waters are interconnected. Ground water discharge sustains base flows in NFS streams and is the source of water for springs and seeps. This ground water discharge is critical for sustaining aquatic and riparian ecosystems along with the numerous resources and activities dependent upon them.

Special use authorizations for removal of ground water from NFS lands shall be approved only when the long-term protection and enhancement of NFS streams, springs, seeps, and associated riparian and aquatic ecosystems can be assured unless such removal is documented in an Environmental Impact Statement.

Ground water removal on non-NFS lands adjacent to NFS lands may impact streams, springs, seeps and associated riparian and aquatic ecosystems on NFS lands. When a project proponent proposes to transport ground water across NFS lands, it is appropriate to analyze the potential impacts of the water removal as well as the impacts of the facilities to transport it. The extent to which each proposal to remove or transport ground water is analyzed depends on the scope and potential impact of the proposed action.

1. Initial Screening for Development and Use of Ground Water. As provided for in Title 36 of the Code of Federal Regulations (CFR) Part 251.54(b), initial proposals for ground water development may be presented to the Forest Service either verbally or in writing. When such presentation is made to the Forest Service, it should be explained to the project proponent that the permitting process for ground water use or transport is a discretionary activity, and that a permit for water use or transport may be denied if analysis indicates that NFS resources or adjacent water supplies will not be adequately protected. It should also be explained that the CFR provides for two levels of screening prior to initiating environmental analysis documentation. To pass the initial screening requirements, proposals to develop and use ground water derived from NFS lands, or derived from non-NFS lands and transported across NFS lands, must meet the following conditions:

a. The proposal to use or transport water must be consistent with applicable laws, regulations, policies, rules, and NFS land and resource management plans (FSM 2702 & 2703). Proposals shall be evaluated as specified in 36 CFR 251.54(e) and as follows:

b. The proposal to use or transport water must adequately protect NFS resources (FSM 2702.1 & 2541.34).

c. The proposal must be consistent with national policy not to encumber NFS lands just because it affords a proponent a lower cost when compared with alternatives located on non-NFS lands (FSM 2703.2)

d. Proposal to use ground water derived from NFS lands must include the use of appropriate water conservation measures (FSM 2541.21h).

e. When considering proposals to use water on non-NFS lands, preference should be given to those requests made by communities or other entities that best serve the public interest.

Proposals that do not meet the minimal requirements of the initial screening process shall be returned to the proponent as insufficient. The authorizing officer shall reply in writing if the proposal was presented in writing, or reply verbally if the proposal was presented verbally (36 CFR 251.54(e)(2)).

2. Second-level Screening. Additional information is required for proposals that pass initial screening. In second-level screening, the proposal is evaluated as described in 36 CFR 251.54(e)(5) and as follows.

a. If the intent of the proposal is to use ground water derived from NFS lands for a non-NFS purpose, the proponent must demonstrate that alternative water sources do not exist (FSM 2703.2). This would include documentation of the actions taken to secure water from other than NFS sources or the rationale explaining why is not feasible to do so. This may include a record of wells drilled, attempts to purchase water, hydrologic and geologic studies, or other similar information.

b. The quantity of water the proponent is currently seeking from NFS lands and the purpose of use of such water must be identified. If the proponent anticipates increased water needs in the future, such needs shall also be quantified.

c. Drilling activities themselves can negatively impact NFS resources. In instances where considerable disturbance may result from the drilling process itself, the proponent must demonstrate that there is reasonable likelihood of successfully completing any water wells and adequately mitigating any resource damage. Information that might support a proponent's rationale could include an inventory of all existing wells in the vicinity along with any available information such as driller's logs, well depths, well yields, water quality information, geophysical logs, and well construction details. In addition, information regarding favorable geologic conditions such as known water bearing formations (including location, aerial extent, lithology, and hydrologic characteristics) or favorable structural features. The proponent may be required to provide information describing current resource conditions to facilitate estimates of potential damage and/or potentially effective mitigation.

d. All anticipated facilities such as roads, power lines, pipelines, water storage tanks, and pumps that could ultimately be needed to produce and convey water across NFS lands must be identified. Proposals that involve construction and/or use of roads shall conform to the requirements of the Federal Land Policy and Management Act (FLPMA) of 1976, specifically FLPMA Sections 502 and 505.

e. To assist in evaluating the potential for the proposal to affect NFS resources and adjacent water supplies, key resources and existing water supplies should be identified. The quantity, location, and/or thing of the proposed use of water will determine to what extent the following information needs are addressed. Typically, the greatest amount of information will be required of each proposal that contemplates the withdrawal of large quantities or water, building in or transiting environmentally sensitive locations, and/or withdrawal of water during peak periods of usage by others, sensitive periods of needs for fish and wildlife, or sensitive periods of needs for riparian and wetlands flora and fauna.

Information that may be required to assess potential impacts to neighboring water users and/or to resources both on and adjacent to NFS lands includes:

(1) The location and characteristics of all potentially affected surface and ground water resources including wells, streams, springs, seeps, and aquifers.

(2) Pertinent social information, including the identification of any potentially impacted individuals or groups and their water uses. Social impacts and environmental justice will be evaluated through the National Environmental Policy Act of 1969 process (NEPA) and through any applicable State process designed to protect the holders of water rights.

(3) The location and description of riparian vegetation.

(4) Any known Threatened, Endangered, or Sensitive species.

(5) Pertinent geologic information. This should include a map of the area identifying surface geology and any known subsurface formations and structural features. Hydrologic characteristics of the target aquifers such as transmissivity and storativity should also be included, if known.

(6) Pertinent hydrologic information. Provide any available information regarding water table or piezometric surface elevations including known seasonal fluctuations, direction and rate of ground water flow, recharge and discharge areas, surface water flow characteristics including volumes and peaks throughout the year, location of gaining and losing reaches of streams, and water quality.

(f) If the proposal does not pass second-level screening, it should be returned to the proponent with a written reason for rejection (36 CFR 251.54(g)(1)). NEPA analysis is not required to make this determination (36 CFR 251.54(e)(6)). If the proposal passes second-level screening, the proponent shall be notified that the Forest Service is prepared to accept a written formal application for a special use authorization. The Forest Service should begin the appropriate environmental analysis upon receipt of the formal application (36 CFR 251.54(g)(2)(ii)). The proponent should be advised that any information provided is likely to become public information once the formal application is received and a NEPA process initiated.

When for formal application is received, the proponent is referred to as the applicant.

3. Environmental Analysis. When screening indicates that the proposal includes high ground water production rates and/or potentially high impact well(s) or transmission facilities, substantial additional analysis may be necessary. An application may be approved in two phases, the first for exploration and the second for construction and/or production. Each phase requires NEPA documentation. When the application is to use existing wells, the evaluation procedures describe din paragraphs (a)-(c) may still apply.

Project applicants should be advised that obtaining approval for exploratory drilling and/or evaluation does not guarantee that construction of production phase facilities will be authorized. They should also be advised that there may be substantial mitigation measures required by the terms of a production authorization and that the scope of those measures may not be identified until the conclusion of the appropriate environmental analysis.

a. Exploratory Drilling Procedures. When screening indicates a reasonable likelihood of producing ground water without negative impacts to NFS resources or adjacent water supplies, NEPA documentation appropriate to the scale of exploration shall be completed. At this phase, a Categorical Exclusion (FSH 1909.15 Sec. 31.1(b)(8) or 31.2(8)) may be sufficient. If the responsible official decides to allow exploration on NFS lands, a temporary permit may be issued for the exploration and impact evaluation phase of the proposal. This temporary permit shall contain any conditions necessary to minimize impacts to Forest resources.

b. Impact Evaluation Procedures. If water supplies in sufficient quantities to meet the applicant's needs are located in existing wells or found through exploration, a detailed plan to determine impacts should be required. This plan will be site specific and designed to identify potential impacts to Forest resources and adjacent water supplies, and must be approved by the Forest Service prior to testing for impacts.

In considering requests to use water from a known aquifer underlying NFS lands, modeling drawdown and resultant impacts may be sufficient. Any modeling will be conducted using a ground water flow model approved by the Forest Service.

In the absence of sufficient information to model impacts, an aquifer test such as long-term pumping of existing and/or exploratory well(s) may be required. The purpose of the test is to evaluate the potential impacts of removing water at production levels from the well(s) under consideration. As testing occurs, there should be simultaneous measurements of water levels and/or pressures in other wells within the vicinity and of flows in adjacent surface waters. Any aquifer test(s) should be conducted during periods of appropriate flows in adjacent surface waters so that impacts can be identified and used to support modeling of drawdown characteristics and/or impacts to surface water resources over time. Chemical characterization may be necessary to further evaluate the potential connection between ground and surface water resources.

If the proposal involves the transport of ground water pumped from nearby non-NFS lands across NFS lands, the above testing may still be required to evaluate impacts of the ground water withdrawal on NFS resources and adjacent water supplies. (40 CFR, 1508.25 Scope).

c. The results of testing, monitoring, and/or modeling shall be analyzed to determine potential impacts to National Forest resources and adjacent water supplies. A decision to allow ground water production and/or conveyance shall be considered through the appropriate NEPA analysis and documentation. Refer to FSH 1909.15, chapters 30 and 40.

4. Construction and Production Permitting. The construction phase includes the construction of all infrastructures needed to pump, store, and convey water from its source to the place of use. Once a NEPA decision is in place, a special use authorization is needed to occupy and use NFS lands for the purposes of constructing and operating facilities designed to produce and convey ground water (36 CFR 251.54 (g)(5)). Refer to FSM 2711 for guidance on the type of permit and/or easement to issue. Refer to 36 CFR 251.56 for Terms and Conditions for permit issuance. Construction may be permitted separately from production. Once a permit is issued, the applicant is referred to as the holder. Regardless of the length of time for which a permit is issued, it is important to note that the Forest Service may amend the permit at any time when it is in the public interest to do so (FSM 2711.2). Continued monitoring of water developments is necessary to verify that their operation remains in the public interest.

5. Monitoring and Mitigation. All monitoring or mitigation measures necessary to ensure protection of Forest resources during the construction of water pumping, storage, or transport facilities, and during the long-term removal of ground water, should be included in annual plans of operation attached to and made a part of the permit(s). Mitigation measures such as the cessation of pumping during critical times of the year or replacing water to streams and springs will be considered only if Forest resources can be protected over a long-term period.

a. The holder should be required to bear the costs of monitoring and mitigation either directly through permit language or indirectly through the use of a collection agreement that funds the Forest Service to accomplish the work.

b. If long term monitoring detects additional or unforeseen adverse impacts to Forest resources, or if mitigation measures do not adequately protect Forest resources, the permit shall be suspended or revoked as appropriate (36 CFR 251.60 (a)(2)(D). To reverse or prevent a suspension, the holder shall undertake such efforts as are necessary to eliminate adverse impacts not previously documented in an Environmental Impact Statement.

6. Other Considerations. Applicable laws and regulations governing wells and water rights shall be adhered to for all proposals. This includes State requirements for notifications, drilling permits, well abandonment procedures, and water rights, and federal (for example, Environmental Protection Agency) requirements and recommendations for monitoring wells, construction, sampling, and abandonment.

In the event that testing, modeling, or monitoring indicates a possibility that appropriable waters are or may be impacted, the Forest Service shall follow the procedures appropriate for the State(s) in which the development is located. If an appropriate State remedy is not available, the Forest Service may seek remedy in any court of jurisdiction. The Forest Service shall not issue a permit for construction or issue/reissue a permit for production unless the applicable State authorization has been granted for the proposed development.

In the event that a State unreasonably withholds authorization, the Forest Service shall consult with the Office of General Counsel regarding remedy.

Permits issued for exploration, evaluation, construction, and/or production do not convey a water right to the holder.

2541.4—Managing Water Rights. Decide if water rights appurtenant to acquired lands can and should continue to be used on the acquired lands. Make a decision within 1 year of acquisition on how and where acquired water rights will be used.

If it is determined that all or part of an acquired water right is not needed by the acquiring Forest, then such water rights will be made available to other Forests. Distribution of surplus water rights will be made by the Regional Forester in accordance with State laws and river basin compacts.