The Federal Government and Water, Again...

The theme of State's Rights regarding water resources and the appropriate federal role has been ongoing for a very long time, and about every 20 years or so the issue is raised again - usually by the states, and usually accusing the federal government of either overstepping it's water authority or trying outright to grab the states' waters.

It's happening again it seems.  On April 25 the Water and Power Subcommittee of the House Natural Resources Committee held a hearing focused on opposing continual federal usurpation of local water rights.  Several activities were fleshed out during these hearings.  One was a claim by a Wyoming Conservation District chairman that the National Blueways System program run by the Interior Department summarily designated the Yellowstone River basin in Montana and Wyoming as a Blueway without any of the increased coordination elements the program was purporting to provide - increased coordination and consultation with affected landowners or public hearings.  While the Blueways program says it is simply to promote local conservation efforts and does not add any new regulations or protection statuses to designated rivers, the locals are a bit more direct in their assertion that it could result in the requirement for increased coordination - thus an increased federal presence and influence - since the feds are part of the coordination team.
 
Another example covered in the hearings involved a recent US Forest Service directive that forbids ski areas from selling their water rights except to the next owner of the ski area.  The Colorado Legislators passed a resolution condemning the Forest Service for that policy, and when they introduced a more substantive bill that would have prohibited the federal government from demanding water rights in return for issuing land-use permits, the locals tell that an influential Forest Service Undersecretary made personal calls to Colorado legislators to get the bill set aside.  They too, said the federal government was overstepping its authority in regard to water rights.

I'd be remiss if here I didn't add my pet peeve to the list - involving the activities of the federal Water Information Coordination Program (WICP) and its daughter subcommittee the federal Advisory Committee on Water Information (ACWI).   Some think a few of these efforts may be another federal foray into state's water right issues, albeit one that is so long, large, broad and hard to follow that it has operated below everyone's radar.  I won't recite everything here, but I've blogged about it before.  Search my blog for "ACWI" if you're interested.

When the mission statement of a workgroup within this complex federally-led entity is:  "Serve as a forum to share information and perspectives that will promote better decision making in the U.S. regarding the sustainability of our nation's water resources.", doesn't it say that "sustainability" is the policy of that federal effort?  When did sustainability of water resources become the national policy of the U.S.?
   
And when a federal agency bulletin says: "The new role of science will be to support environmental decision making to achieve some new level of sustainable use that will provide an assured supply of good-quality water for humans and for stream and riparian ecosystems.", doesn't it read that "sustainability" is the agency policy?

I'm not arguing that sustainability isn't a good and noble goal or policy.  I'm arguing that WICP and ACWI should not be the entity to decide what the federal policy is to be while subcommittees of this group are deciding what data is to be used and where they will get the data.  The data should drive the policy, not the other way around.

What ramifications are there in every venue of water IF the federal government gets to choose the national water policy, and, it is in fact sustainability? Anyway, this entire arrangement should be looked into IMHO.

However, whether I'm right or wrong, you can bet the tussle for control of water between the federal government and the individual states will continue long into the future.  My guess is it'll get more subtle rather than more aggressive.  Anyway, maybe we all should tune into this issue just a bit more.

Water & the Feds

It's nothing new - the tug of war over who has what say over water.

One recent foray has been the Clean Water Restoration Act (earlier blog post) where Congress had been debating a seemingly small amendment to the Federal Water Pollution Control Act - that of merely changing the phrase "navigable waters" to "waters of the United States". To some, this small change would have significantly broadened EPA's regulatory control over water, and this is why EPA wanted it so bad.  It was a direct assault on the right of the states to control and manage their waters.  The other side argued the amendment simply corrected what had always been intended by Congress, so it wasn't really any expansion of EPA authority at all.  This bill had been a lightning rod in 2009 and 2010, and according to Thomas, it did not survive the 111th Congress.  Moreover, I haven't been able to find any version of this bill in the 112th Congress either.  It was introduced in 2009 by Senator Feingold, who did not survive the 2010 elections.

I have also been wary of other more subtle Federal activities regarding, not the direct control of water, but the direction of water policy at the federal level.  It almost appears as if the feds have taken the position that if you can't get control of the water itself, the next best thing is to tell everyone what the water policy is going to be.  Take a close look at the federally organized and appointed Water Information Coordination Program (WICP) (earlier blog post).  This is by no means a direct foray into water control, but seems headed toward being a subtle process to direct and impose various aspects of a desired federal water policy on the states.  The specific element I looked at related to a sustainable water use policy.  Warning, this is a very intricate arrangement of committees, subcommittees and programs reporting to programs, so it's really hard to follow.  One sub group sanctioned by WICP is the Advisory Committee on Water Information (ACWI), which is organized into 8 sub committees - one of which is the sub committee on Sustainable Water - whose mission statement is:

"Serve as a forum to share information and perspectives that will promote better decision making in the U.S. regarding the sustainability of our nation's water resources."

Notice how this federally led group starts out their mission statement with a respectable and appropriate federal responsibility - that of discussing and sharing perspectives to promote better decision making - then seals the statement with what they think that policy should be - sustainable water resources.  If no one questions the mission statement this group simply has to point the train.  It's the classic approach of "hearts and minds", which eventually changes policy and law.  No federal group should be telling Kansas or any other state what their water policy should be, or is to be - even if it is a good policy.  My second post on this process.  If Kansans want a sustainable water resources policy, they'll make that happen.

The final example goes back to February, 1942 when the Republican River Compact was being debated by Congress as H.R. 5945.  By this time all three states (Kansas, Colorado and Nebraska) had ratified the compact.  Up steps the Federal Power Commission, who had not been party to the compact to date, with Compact amendments that were disturbing to at least Colorado.  Clifford Stone, Director of the Colorado Conservation Board was updating his board on the Legislative process and put it this way in his February 19, 1942 memo:

Apparently, the Federal Power Commission desires to reserve the right some time in the future to declare the river navigable in law, although not navigable in fact, in order that federal control and regulation may be interposed to prevent the control of consumptive uses for irrigation and other beneficial purposes under state law. This we do not believe to be the proper nor acceptable position toward western states which control water for irrigation under state laws. It represents the activity on the part of some federal bureaus and departments to disregard state laws under the fiction of "navigability in law".  If such a policy is carried too far, it will threaten the water rights on many streams of the West which, as you know, constitute property rights.

As it turned out, Congress did not adopt any of the Power Commission's amendments.  But, as a result, is it any wonder why non-federal entities cast wary eyes upon Washington?  I'd guess there must be hundreds of these kinds of activities if one had the time to research it enough.  But that takes a lot of effort and stamina. And it takes an almost equal effort to keep keeping up the vigil.

Sometimes I wish the federal government and its agencies would quit scheming and conniving over the control of water and introduce a clear and direct bill in Congress to take full control of the waters of the US, or mandate a sustainable water resource policy on all states and territories, or whatever it is they really want to do.  Then Congress can settle the water control issues once and for all and we can all get some productive work done.  Hey, that gives me an idea....

Separation of Data and Policy

In the Kansas water world agencies like the Kansas Geological Survey (KGS) are responsible for scientific data collection that the regulatory and policy agencies have access to.  These guys are very well-heeled and make double sure that the data they collect and store is scientifically "top notch" (completely supported by scads of meta data) and is basically unquestionable.  While they are very good at what they do, they do NOT offer up policy recommendations or management approaches.  These decisions are in the realm of the state regulatory agencies who rely on the data to make the right policy decisions. 

This is the same with the United States Geological Survey (USGS), or so I thought.  I recently ran across a federal government sponsored (OMB) group directly under the chair of the USGS that is working on a number of data issues - including a national data procedure that will easily accept all other data the USGS can get its hands on.  While this effort is appropriate, the committee has other subcommittees that are working on issues much closer to policy-like efforts - most notably sustainable water directions.  This places the USGS out of character at the very least, and possibly in an inappropriate role. 

The committee?  The Water Information Coordination Program (WICP).  You have to look pretty deep into the group before you find the policy issues being developed.  One sub group sanctioned by WICP is the Advisory Committee on Water Information (ACWI).   This group has 8 sub committees - one of which is the sub committee (Roundtable) on Sustainable Water - whose mission statement is:

"Serve as a forum to share information and perspectives that will promote better decision making in the U.S. regarding the sustainability of our nation's water resources."

ACWI's alternate chair and two executive secretaries are USGS employees.  Why is the USGS coordinating discussion on policy issues?  There are two other sub committees under the WICP that are also expressly chaired by USGS personnel.  From the OMB resolution forming the entire shebang: 

"At the national level, the procedures shall include an Interagency Coordinating Committee for Water Information and a Federal Advisory Committee on Water Data for Public Use. The U.S. Geological Survey shall chair and provide support services for these committees. OMB shall be a member of the national committees."

I don't know what these folks are working on yet - data or policy.  It should be noted that the ACWI mission statement above does not say who will be making the better decisions their discussion will be promoting, so it's too early to break down the doors.  However, traditional separation of data and policy doesn't even come close to this arena.  Traditionally the USGS would stand completely down and develop the data required by a regulatory agency only upon direct and specific request.  Their being directly involved in the framing of the data needs would too easily allow a USGS policy agenda to manifest itself.

Anyway, this arrangement should be looked into in my opinion.  I'm not so sure the whole national water policy and sustainable watersheds efforts are not related to these activities, too.  If they are, the USGS is clearly stepping beyond its data responsibilities and is promoting national water policy.

** Update:  January 27, 2010:  From USGS Circular 1261, Anderson & Woolsley, 2005:

"The new role of science will be to support environmental decisionmaking to achieve some new level of sustainable use that will provide an assured supply of good-quality water for humans and for stream and riparian ecosystems."

Who doesn't think this statement is supporting a specific policy agenda by the USGS?

Anyone Watching the Feds Lately?

I have been monitoring the activity of elements of the very broadly cast Water Information Coordination Program (WICP) - originally established in the 1960's. With a simple memorandum in 1991 (Memorandum 92-01) OMB reconstituted this unit and updated its authority. Some of it's new objectives are:

To plan, design, and operate a cost effective national network for water-data collection and analysis that meets the priority water-information needs of the Federal government and, to the extent possible within available resources, the needs of the non-Federal community that are tied to national interests.

To coordinate funding, staffing, and the provision of other resources needed to support interagency water-information activities for ensuring the best use of available resources.

To collaborate, as appropriate, with other groups that are coordinating related categories of information, such as spatial data and meteorological information.

Great, all non-federal entities are to provide their data so that the feds can turn around and provide it back to them and others - only if there are available resources to do so and only if those uses are tied to national interests.  Sounds fair to me.  But wait, the effort gets better.

Within WICP, there has been formed an Advisory Committee on Water Information (ACWI) made up of federal, regional, state, local, industrial, academic and water-related association representatives who are to meet the objectives and requirements of Office of Management and Budget (OMB) Memorandum No. M-92-01 (directing ACWI to establish more effective working relationships and foster collaboration with State and local agencies, Indian Tribes, and the private sector) and to, again, provide advice and consultation toward a cost-effective national network of water-data collection and analysis that meets the priority water-information needs of the Federal Government and, to the extent possible within available resources, the needs of the non-Federal community that are tied to national interests.

ACWI is supposed to have members (not to exceed 35) made up of Federal agencies; Professional water-related associations; State and county water-related associations; Academia, Private industry; Water utility associations; Civil engineering societies; Watershed and land conservation associations; Ecological societies; Lake, coastal and ocean associations; and Environmental and educational groups. 

The actual member organizations of ACWI today are:  National Ocean Service (NOAA); National Weather Service (NOAA); Tennessee Valley Authority; US Army Corps of Engineers; NRCS (USDA); US Forest Service (USDA); Bureau of Land Mgt (DOI); Bureau of Reclamation (DOI); National Park Service (DOI); Office of Surface Mining (DOI); US Fish & Wildlife Service (DOI); USGS Water Resources (DOI); Office of Environmental Information (USEPA); Office of Water (USEPA); Assoc of State Geologists; Assoc of Metropolitan Water Agencies; Assoc of State Drinking Water Administrators; Assoc of State and Interstate Water Pollution Control Administrators; Interstate Council on Water Policy; National Assoc of Clean Water Agencies; National Assoc of County Planners; Western States Water Council; American Society of Civil Engineers; Electric Power Research Institute; National Council for Air and Stream Improvement, Inc.; Universities Council on Water Resources; American Water Resources Assoc; American Water Works Assoc; Ecological Society of America; Groundwater Protection Council; League of Women Voters; National Ground Water Assoc; North American Lake Management Society; and the Water Environment Federation.

This list comprises 14 Federal organizations; 8 Regional, state and local organizations; 3 Industry organizations; 1 academic organization; and 8 professional association organizations.  I guess this could work for a "federal first" product.

Within ACWI there are 8 subcommittees - Groundwater; Sustainability; Hydrology; Sedimentation; Monitoring; NAWQA Liason; Spatial Water Data; and Methods.  And within each subcommittee there are one or more work groups - the Groundwater subcommittee for example has 4 work groups.  Whew!

From where I sit, this looks like a massive federal effort to infuse most of the federal agencies into every nook and cranny and aspect of water data, policy and management.  I'd almost be receptive of a water data role for our federal brothers, but I get real nervous when they start talking about sustainable water management as a federal policy.  We'll keep watching.