Lawmakers to Vote on Stripping Feds of Water Withdrawal Authority in Allegheny National Forest

May 7, 2012 | 1:40 PM

A bill that would strip the U.S. Forest Service of regulation over water withdrawals in the Allegheny National Forest could be voted on by lawmakers in Harrisburg this week. As I wrote last December, the state Government Committee approved House Bill 1904, which would amend a law passed by the General Assembly back in 1911. That law allowed the state to sell 800 square miles of land in northwestern Pennsylvania to the federal government, which in 1923, turned it into the Allegheny National Forest. The purchase was part of a larger 6 million acre acquisition of land that created the country’s National Forest system 100 years ago in order to protect watersheds, rivers and streams.
Given the original federal legislation that allocated $200,000 dollars for the purchase of land clearly states the goal of water resource protection, it’s unclear how the state could then strip the Forest Service of their water regulatory duties. But House Bill 1904, sponsored by Republican Representative Kathy Rapp, who represents the Allegheny National Forest area, does just that.

(4) No laws nor rules under this section may supersede, invalidate or modify the common law of the Commonwealth or a statute of the Commonwealth respecting any of following:
(i) The storage, control, use or development of water resources in this Commonwealth or any riparian rights appurtenant and incident to water resources.
(ii) The development, use or ownership of mineral resources in this Commonwealth.

Rapp says that the original forest purchase by the federal government did not “empower” them to limit oil and gas development.
“When the Commonwealth approved the creation of Allegheny National Forest, it did so with the understanding that the federal government would respect and uphold the rights and interests of the individuals and companies who share ownership of this wonderful natural resource as required by law,” said Rapp. She says recent attempts by the Forest Service to study drilling impacts have trespassed on private property.
Natural gas drilling in the forest has staunch opponents. And the controversial issue made its way to the Third Circuit Court of Appeals this year after the Pennsylvania Independent Oil and Gas Association, and Warren County, sued the Forest Service over a drilling moratorium. In 2009, the Forest Service, under pressure from environmental groups, decided to conduct an environmental impact study before allowing any more drilling on forest land to continue. But the problem is, the Forest Service never purchased the mineral rights when they bought the land back in the early 1900’s. So county officials, and private citizens argued they would lose money if the Forest Service halted drilling until an environmental impact study was completed. The Third Circuit agreed, and in September, 2011 told the Forest Service to open up the land to drillers.
HB 1904 seems to codify that court decision, which has the folks at Trout Unlimited worried. “The Allegheny National Forest supports small headwater streams,” said Katy Dunlap, the Eastern Water Project Director for Trout Unlimited. “This is where trout populations are intact…unregulated water withdrawals could deplete stream flows and impact trout populations.”
It’s unclear from the legislation’s current language, who, if anyone, would regulate water withdrawals in the Forest. No river basin commission exists in that part of the state, so the likely candidate would be the Department of Environmental Protection.