Water Rights on National Forests and Grasslands
Surface water and ground water on National Forest System (NFS) land are administered as part of the NFS estate. As such, administration and management of the water resource is governed by many federal laws specific to use of federal land, including protection of water resources consistent with the mandate for long-term sustained-yield for multiple uses, as well as by certain state laws.
Although the Forest Service administers and manages water as part of the NFS estate, water use on NFS land occurs under both state and federal law. This concurrent jurisdiction means that federal laws control land management including the protection and restoration of the water resource and the aquatic environment and access to the land but state water allocation laws play a role in the diversion and use of water.
The Forest Service has discretion in granting access to water on NFS land unless granted by statutes prior to the enactment of the Federal Land Policy and Management Act of 1976 (FLPMA), or granted pursuant to a repealed statute such as R.S. 2339 (43 U.S.C. 661, as amended) (see FSM 5520 and FSH 5509.11 Ch. 60 for other repealed statutes). Under the Organic Administration Act (OAA), the National Forest Management Act (NFMA), the Multiple-Use Sustained Yield Act (MUSYA), and the FLPMA, the Forest Service has discretion to both deny or condition access to state granted water rights or authorizations located on NFS land as necessary to protect aquatic and aquatic-dependent resources, including scenic and aesthetic values, and protect fish and wildlife habitat on NFS land. Courts uphold this discretion as an appropriate exercise of the U.S. Constitution Property Clause authority which gives the Forest Service authority to manage the federal property, despite some States’ arguments that the terms are impermissible water allocations.
In the Western United States, states generally allocate the right to use surface water and ground water under the prior appropriation doctrine, a water allocation system that severs the water from the land on which the water is
located and allocates the right to beneficially use the water based on temporal priority and not on land ownership. Ground water is often allocated by regulation in water short areas. It is important to be familiar with the laws of the state in which the National Forest or National Grassland is located as each state has individual variations of the prior appropriation doctrine or may allocate water under another doctrine. For example, California allocates surface and ground water under both the prior appropriation and the riparian doctrines, and Arizona allocates ground water under the riparian doctrine. In addition, appropriative state water laws identify and limit the types of uses considered “beneficial” and this list may not include all water uses needed by the Forest Service for the proper administration and management of NFS land.
In the Eastern United States, state laws generally allocate the right to use surface water based on the riparian doctrine, which provides the use right to the owners of the land adjoining a water course or water body. A riparian water right allows the landowner to a reasonable use of water on the landowner’s riparian land, as long as it does not harm a downstream riparian owner’s reasonable use of water. State laws that govern ground water use vary according to the state. Generally, one of the following “rules” are followed, depending on the State: the Absolute Dominion Rule, the Reasonable Use Rule, the Correlative Rights doctrine, and the Restatement of Torts rule. For surface water, in addition to the riparian doctrine, many states have established regulatory schemes which may allocate the right to divert water through a permitting system. Again, it is important to be familiar with the laws of the state in which the National Forest or National Grassland is located.
The mixture of both federal and state laws governing water usage on NFS land requires that Forest Service employees be aware of the full range of federal laws governing the use of water on NFS land as well as the particulars of state laws governing the use of water on those lands. Protecting and restoring NFS land and water resources may require the Forest Service to actively participate in state water administrative proceedings as well as apply state and federal law. It may also require active participation with States as they further develop their water laws, water policies, allocation methods and drought plans. The Forest Service may have to obtain water rights to use water pursuant to state law and participate in state administrative or judicial proceedings to either assert federal or state based water rights, or to protest the water right claims of third parties when those claims may adversely impact the federal estate. If state water laws do not protect the federal needs for water, the Forest Service should take steps to protect the water resource through federal land management planning and through the permitting of third party uses of water on or near NFS land.