Public Land Appears to be about Water

By JEFFREY O. DURRANT

Several years ago I was in the Salt Lake City office lobby of a well-known wilderness advocacy group. As I waited to conduct an interview I leaned back in my chair and began to peruse a copy of the book How Not to be Cowed: Livestock Grazing on Public Land that was available on a nearby shelf. After a few minutes my reading was interrupted by an excited staffer who burst out of his office announcing that they were going to have a meeting on the problem of Off-Highway-Vehicles on public land and this topic was, he proclaimed several times, “the next big thing.” An hour or so later when I left, a meeting was being held in the backroom on this “next big thing.”
Obviously vehicle access is a “big thing” on public lands. Vehicle access has been a central theme for decades and during the past few years has become even more of a dominant issue. In Emery County the increasingly contentious debate over a San Rafael National Monument often focuses on vehicle access. Many newspaper and radio ads directed at defeating the National Monument proposal are funded and directed by OHV interests in and outside the county.
But despite the prominence of the vehicle access issue, I am going to suggest that on western public lands in general, and in the San Rafael Swell in particular, the real issue is water. It’s rivers, not roads, that are the real driving force behind many land use designations and counter-designations. And as usual Emery County is an excellent illustrative example.
During the past few years the Emery County Public Lands Council has led the fight against large-scale Wilderness designation and worked long and difficult hours in developing first a National Heritage proposal in 1998, then a National Conservation Area proposal in 2000, and finally in 2002 a proposal to create a National Monument.
If you think that vehicle access is the dominant motivation behind these efforts you would be wrong. Now don’t misunderstand me, the ECPLC does care about this issue, just as they deeply care about grazing rights; but the main topic of interest in all these efforts is water, or more specifically water rights. Emery County’s master plan lists maintaining water rights as the number two priority-just behind the over-arching goal of maintaining a rural lifestyle.
While water rights have always been a concern in the arid west, they are of added interest to counties such as Emery that utilize water upstream of potential conservation designations such as Wilderness. In other words the issue of Wilderness and water rights becomes even more important if the potential Wilderness is downstream from where you utilize water. If you are downstream of an area with special protection then your use isn’t affected by any federal reserved water right. Downstream use doesn’t impact or alter the flow of water in the protected area.
What the string of Emery County proposals is trying to do more than anything is to find a legislative or administrative vehicle to which they can attach desired water language so that any upstream uses in the county will not be impacted by potential downstream conservation requirements in the San Rafael Swell.
But, we may ask, what is all the fuss? Wouldn’t any subsequent downstream rights be ‘junior’ to the ‘senior’ upstream rights? The answer to this is yes. But this doesn’t mean that the junior rights would have no impact on the more senior rights.
Fears of county leaders focus on language in protective designations that would prohibit the ‘expansion’ or ‘modification’ of senior rights. For example, what if there is a need to dredge Mill Site reservoir in order to restore diminished storage capacity? Junior rights could argue that modification will allow less flow downstream and impact them. Or perhaps a farmer wants to sell a right to the power company. This could be challenged since in agricultural uses there is often a return flow to the stream that adds to downstream flow, but return flow is prohibited by water used in power plant operations. Also, isn’t the installation of pressured irrigation such as in Ferron a modification? Wouldn’t this conserve water that could be stored in upstream reservoirs? Downstream rights could argue that this is a modification and unused water should be released downstream-not a great incentive for upstream conservation.
The fear of downstream junior rights making life difficult for upstream users is not without merit. In SUWA’s Summer 2001 Newsletter an article on water rights in Wilderness states, “So if wilderness water rights would be junior to existing upstream rights, and downstream users would not be affected at all, why are wilderness water rights needed? The principle is that the public should have some rights to keep streams flowing in wilderness areas. The public, in effect, deserves a place in line, even if it is not at the head of the line.” SUWA obviously understands the role junior rights can play, a role feared by Emery County leaders. As an avid river runner I would love to see more water in the San Rafael River and Muddy Creek. But I don’t depend on these river systems for my agricultural, culinary, and industrial water needs-Emery County does.
Creating a National Monument to secure Emery County’s water rights is a messy business. First there is the very vocal OHV crowd that wants their “issue” to be the agenda, an agenda that often clashes with issues such as water concerns. Second is the risky assumption that a National Monument will secure rather than put added pressure on upstream rights. In Colorado’s Black Canyon of the Gunnison the presence of a ‘National Monument’ (later a National Park) was used as the central reasoning or impetus to secure river flows through Black Canyon. National Monuments are looked on by many as special designations that deserve added “preservation” of the environment.
The hope with a potential San Rafael Swell National Monument is that there will be language in the proclamation that excludes a federal reserved water right as in President Clinton’s Grand Staircase-Escalante National Monument that stated, “This proclamation does not reserve water as a matter of Federal law.” Sounds good, but the sentence is directly followed by: “I direct the Secretary to address in the management plan the extent to which water is necessary for the proper care and management of the objects of this monument and the extent to which further action may be necessary pursuant to Federal or State law to assure the availability of water.” Emery county’s desire is to include stronger language that explicitly denies a federal reserve water right.
Water and special public land designations are closely connected, and whether it is Wilderness or any of the recent Emery County proposals, water is and will be the driving factor. The closure of a favorite OHV trail, while important to the county, is not as important as securing water rights that drive agriculture and industry in the area. In the county’s agenda frustrated OHV riders take secondary consideration to thirsty farms and power plants.