[Federal Register Volume 65, Number 52 (Thursday, March 16, 2000)]
[Notices]
[Pages 14238-14241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6520]


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DEPARTMENT OF AGRICULTURE

Forest Service


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.

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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

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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

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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.

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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.

    Dated: March 7, 2000.
James T. Gladen,
Deputy Regional Forester, Resources.
[FR Doc. 00-6520 Filed 3-15-00; 8:45 am]
BILLING CODE 3410-11-M