Unified Federal Policy for Ensuring a Watershed Approach to Federal Land and Resource Management

Summary of Comments and Responses

1. Do the participating agencies have the authority to develop and implement this policy?

Comments: Some respondents asserted that the Clean Water Action Plan (CWAP) and the Unified Federal Policy (UFP) violate Congressional mandates regarding multiple use, sustained yield and planning procedures found in the Federal Land Policy and Management Act, 43 U.S.C. §1701 et seq. (FLPMA), the Multiple Use and Sustained Yield Act, 16 U.S.C. § 531 et seq. (MUSYA), and the National Forest Management Act, 16 U.S.C. § 1600 et seq. (NFMA).

Response: As the agencies have explained in the CWAP itself, the CWAP is not a regulation and it does not establish a regulatory program. Rather, it is a call to action that "builds on the solid foundation of existing clean water programs" and seeks to "restore and protect water resources" within the framework of existing laws and regulations. Similarly, the UFP is intended to enhance the implementation of existing laws and improve coordination of Federal watershed management activities with States, Tribes, and interested stakeholders. In other words, nothing in the UFP (or the CWAP) directs agencies to violate any existing laws or regulations. For instance, the UFP calls upon agencies to enhance State, Tribal and public participation opportunities during the resource management decision-making process. However, any such enhancement must be fully consistent with resource management decision-making processes established by FLPMA and other applicable laws and their implementing regulations. As another example, the UFP asks agencies to employ collaborative decision-making processes that utilize scientific knowledge and understanding gained from watershed assessments to develop federal land management decisions. Again, any such collaboration would be structured and undertaken only in accordance with applicable laws such as FLPMA, MUSYA, and NFMA and their implementing regulations.

Comments: Some respondents commented that CWAP and, therefore, the UFP violate the Administrative Procedure Act (APA) and Intergovernmental Cooperation Act (ICA).

Response: Neither the CWAP nor the UFP is a regulation. Therefore, the formal requirements of APA applicable to the promulgation of government regulations do not apply. In contrast to a regulation, which would establish legally enforceable requirements, the UFP asserts goals and aspirations consistent with existing laws and regulations. The UFP does not identify or propose specific projects that would require consultation with local governments under the ICA. The Federal agencies have widely publicized the policy and encouraged public discussion and feedback in order to have the widest possible participation of the public, including States and Tribes, in energizing the agencies' efforts to restore America's waters. Thus, States and Tribes were invited to participate in the UFP's development by commenting on a "working draft" policy in June of 1999, eight months before publication of the proposed policy in February 22, 2000 Federal Register (65 FR 8334). Their comments were considered during the preparation of both the proposed and final policies.

Comments: Some respondents commented that the CWAP and, therefore, the UFP violate the National Environmental Policy Act (NEPA).

Response: The CWAP and the UFP provide a framework for energizing the agencies' efforts to restore the nation's waters pursuant to existing laws and regulations. As such, the CWAP and the UFP are broad policy statements that speak in general concepts and principles, do not establish or alter existing agency programs, and are not defined to the point that they can be meaningfully analyzed. The agencies will fully comply with NEPA and other applicable laws at the appropriate time, such as when the UFP's policies are used to develop proposals for specific policies, programs, or projects. In other words, the Federal agencies fully intend to comply with NEPA at the appropriate time for all actions that require such compliance.

Comments: Some respondents asserted that the CWAP and, therefore, the UFP violate the Fifth Amendment's prohibition on the taking of private property.

Response: Nothing in either the CWAP or the UFP deprives anyone of individual property rights or would deny any owner of property the economic use of that property. The CWAP and the UFP do not require, authorize, or even suggest the taking of private property by any governmental agency for any purpose. The UFP, by its terms, creates no enforceable rights. The UFP applies only to Federal land and resources, not to private property. The UFP does not prohibit or restrict any activity on private property.

Comments: Some respondents asserted that the CWAP and, therefore, the UFP violate the Regulatory Flexibility Act (RFA) because the effect of the CWAP for any significant impact on small entities and businesses was not analyzed.

Response: Because neither the CWAP nor the UFP is a regulation, the RFA does not apply to them. The RFA is triggered only "[w]henever an agency is required . . . to publish general notice of proposed rulemaking for any proposed rule . . ." 5 U.S.C. 603(a). The CWAP and the UFP are policies, not rules, and therefore are not subject to RFA.

Comments: Several respondents questioned whether the authority exists for some of the activities in the policy; specifically, the authority to conduct watershed assessments and to apply special designations.

Response: Federal agencies have a variety of authorities to conduct watershed assessments and apply special designations. For example, in Public Law 94-579 (October 21, 1976), the Federal Land Policy and Management Act of 1976, Title II - Land Use Planning, Inventory and Identification, Section 201 (a), Congress directed that the Secretary of the Interior "shall prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values." In Title II, Section 202 (c) (3), Congress directed the Secretary of the Interior to "give priority to the designation and protection of areas of critical environmental concern." In the National Forest Management Act of 1976 (16 U.S.C. 1602), Section 5 - Program Recommendations, Congress directed the Secretary of Agriculture to "recognize the fundamental need to protect and where appropriate, improve the quality of soil, water, and air resources." Each agency has additional authorities to inventory resource conditions and prepare management plans to prevent natural resource degradation and to restore degraded areas. In order to clarify our intent, the final policy has been amended to include the phrase "using existing legal authorities" in Section II.B.2, which addresses special designations.

Comments: Several respondents commented on the protection of existing water rights. The agencies adopting this policy acknowledge the authority granted to Tribes and States regarding water rights.

Response: In order to clarify our intent, the introduction section of the final policy has been amended to affirm our intent not to affect water rights with the addition of the following language: "The policy applies only to Federal lands and resources and does not affect water rights laws, procedures, or regulations." In the notice of the proposed policy published in the Federal Register on February 22, 2000 (65 FR 8834), we also stated our intent by publishing the following statement in the preamble: ". . . nothing in the proposed policy is intended to adjudicate, determine, or otherwise affect water rights. The proposed policy does not affect currently applicable laws, procedures, or regulations creating or determining water rights."

2. How does the policy affect Tribal rights and interests?

Comments: Several comments concerned tribal rights and interests.

Response: The final policy acknowledges the Federal policy of the government-to-government relationship between the United States and Tribes by expressly including Tribes as governmental partners in meeting the goals and objectives of this unified Federal policy on watershed management. The policy recognizes Tribal government authorities under the Clean Water Act and includes Tribes in all of the collaboration efforts addressed by the policy. The policy also has the flexibility to take into account indigenous knowledge when developing, selecting and implementing management actions.

3. What role will States, Tribes, and local governments have in working with Federal agencies to implement the policy?

Comments: A few respondents suggested we clarify the roles of the Federal agencies, States, and Tribes.

Response: In the preamble to the proposed policy, we recognized that Tribes and States have overall responsibility for managing waters under their jurisdiction. This recognition has been added to the introduction of the final policy. In addition, Section II.D.2 of the final policy states that we will develop formal agreements with States, Tribes, and local governments as appropriate to clarify responsibilities for watershed management.

Comments: Some respondents questioned the need for additional watershed assessments on Federally managed lands and requested clarification on the scope and scale of these assessments.

Response: The purpose of watershed assessment is to gain an understanding of the physical and biological processes that govern the flow, quality, and timing of water. It is our intent that watershed assessments will result in information that will become part of the basis for identifying management opportunities and priorities and for developing alternatives to protect or restore watersheds. We have included an outline in Section II.A.1.a of the final policy for the development of a consistent watershed assessment procedure. Although the agencies' field offices will have flexibility on the scale, watershed assessments generally will be at the 5th level Hydrologic Unit Code (HUC) (40,000 to 250,000 acres) or 6th level HUC (10,000 to 40,000 acres).

Comments: A few respondents questioned whether the watershed assessments on Federally managed lands duplicate actions that the Tribes and States are required to conduct under the Clean Water Act.

Response: The Federal watershed assessments will supplement the Tribal and State assessments. In general, the Federal assessments will be more detailed (for example, we will analyze the cause of watershed problems and the potential for recovery) and will be at a smaller scale. We will use the results of these assessments to work with the Tribes and States in efforts to protect or improve water quality in watersheds that include Federal lands.

Comments: Several respondents emphasized that Federal watershed protection and restoration efforts must be coordinated with Tribal, State, and local efforts.

Response: The policy is intended to provide a framework for enhanced collaboration among the Federal agencies, States, Tribes, private landowners, and stakeholders. While the policy applies only to Federally managed lands, we recognize that collaboration is essential to successful watershed protection and restoration. The Federal agencies within a watershed are committed to working together and with States, Tribes, local governments, interested stakeholders, and private landowners to assess, prioritize, and focus funding and personnel for protection and restoration action in priority watersheds. The policy is broad to allow field level offices the flexibility to consider local conditions and the good work already underway. Through close coordination outlined in the policy, we believe work on Federal lands will complement actions taken by States, Tribes, and local communities.

4. What impacts will this policy have on the multiple uses of Federal lands?

Comments: Some respondents expressed concern that the policy might interfere with current multiple use management activities, while other respondents suggested that the policy be strengthened to help ensure that Federal land management activities would not further degrade water quality.

Response: Federal laws governing Federal land management already strike a balance between local and national interests in meeting multiple use mandates, preventing natural resource degradation, and preserving resource viability. This policy is intended to provide a consistent approach to managing Federal lands and resources in accordance with applicable laws governing Federal land use management and water quality.

5. How will the policy be implemented?

Comments: Several respondents commented on the need for specific implementation information; in particular, when and how the actions are to be accomplished and how ongoing efforts by Tribes, States, and local communities will be impacted by the policy.

Response: With the adoption of the final policy, the agencies will work in close coordination with State, Tribal, and local government agencies; private landowners; and stakeholders to develop implementation plans that will incorporate the goals of the policy, build on current efforts, and will recognize work already being accomplished by Tribes, States, and local communities.

Comments: A few respondents questioned whether funding to implement the policy is available.

Response: We recognize that the implementation will vary among the agencies, based in part on existing budget allocations. We also anticipate that implementation of this policy will help to encourage Federal land and resource management agencies to pool funds to focus on priority efforts. Finally, we recognize that additional funding could accelerate implementation of this policy.

6. How will the public participate in implementing the policy?

Comments: Several respondents wanted to know how the public would be involved in policy implementation.

Response: One of the six guiding principles of the final policy (Section I.A-F) is to work closely with States, Tribes, local governments, private landowners, and stakeholders to implement this policy (Section I.D). The policy provides for two types of public participation: (1) Opportunities to review and comment throughout Federal planning processes, and (2) Opportunities to assist in on-the-ground work (Section II.D). In general, the agencies' field offices will be responsible for working with States, Tribes, local governments, private landowners, and stakeholders to provide opportunities for input, at a minimum, in the following areas:

• Assessing the effects of our current and past actions on the condition of watersheds with significant Federal lands and resources (Section II.A.2.a).
• Identifying specific watersheds with significant Federal lands and resources as priorities for protection, management, and improvement (Section II.B.1).
• Improving watershed conditions through restoration and adaptive management (Section II.B.4).

Comments: Two respondents expressed concern that private landowners were not mentioned until the end of the policy.

Response: We recognize that private landowners play a very important role in implementing a watershed approach. The term "stakeholder" is intended to include private landowners. In addition, the term "private landowners" was added in several sections of the final policy to clarify the intent of the policy to recognize their role and include them in many steps to achieve watershed management.

For the Department of Agriculture: Dated: 9/20/00 /s/ James R. Lyons James R. Lyons Under Secretary Natural Resources and Environment	For the Department of Commerce, National Oceanic and Atmospheric Administration: Dated: 10/2/2000 /s/ D. James Baker D. James Baker Under Secretary for Oceans and Atmosphere
For the Department of Defense: Dated: September 28, 2000 /s/ Patricia L. Toppings Patricia L. Toppings Alternate OSC Federal Register Liaison Officer	For the Department of Energy: Dated: September 22, 2000 /s/ David Michaels David Michaels, PhD, MPH Assistant Secretary Environment, Safety and Health
For the Department of the Interior: Dated: 9//7/00 /s/ Sylvia V. Baca Assistant Secretary for Land and Minerals Management	For the Environmental Protection Agency: Dated: 8/29/00 /s/ J. Charles Fox J. Charles Fox Assistant Administrator for Water
For the Tennessee Valley Authority: Dated: 9/1/00 /s/ Ruben O. Hernandez Ruben O. Hernandez Vice President, Resource Stewardship	For the Army Corps of Engineers: Dated: 9/14/00 /s/ Joseph W. Westphal Joseph W. Westphal Assistant Secretary of the Army (Civil Works)






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