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Whose water is it, anyway?

Published February 7, 2013 1:01 am
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

It is encouraging to see letters to the editor urging citizens to speak out against a piece of legislation proposed by Rep. Kay McIff of Richfield. Titled "Public Trust Obligations and Constitutional Protections," the bill is intended to be a statutory roadblock preventing the courts and citizenry from using an ancient legal theory called the "public trust doctrine" to protect our state's water resources, including recreational access.

Make no mistake about it. Although HB68 has an obscure, legalistic title, it is front and center in a battle royale over power, money, and quality of life in the West.

To those not intimately familiar with this conflict, a short explanation of the public trust doctrine and the development of water in the West may prove helpful.

The public trust doctrine comes to us from ancient Roman law and English common law, requiring the king to protect shorelines and tidal waters as a food source for the people.

The doctrine has undergone a frequently controversial expansion in modern legal theory, especially in the western U.S. Among other cases, it was invoked by the Montana Supreme Court as the basis for opening the rivers of the state to public access. It also was cited by the California Supreme Court in preventing Los Angeles from draining a unique water body called Mono Lake.

Just recently, a proposed ballot initiative in Colorado would have replaced the "prior appropriation doctrine" with the public trust doctrine as the guiding principle for allocating water in the state.

Thus, the public trust doctrine has proven a powerful tool in resurrecting public values, such as environmental protection, in a Western water culture dominated by private water users such as agriculture. This is why McIff, who represents these private interests, wants to shackle the doctrine with HB68.

How did we get to this point? Since the earliest days of settlement in the West, people have always understood that water has important public values — for fisheries, wildlife and other noncommercial purposes.

This is why our own state constitution declares the waters of the state to be the "property of the people," and our courts have said that this water must be managed in the "public interest."

Nonetheless, more than 100 years ago, the vast majority of the waters in Utah were allocated to private interests at a time when public values, such as environmental protection, were not high on the civic agenda.

In the ensuing decades, water management by state authorities has so rigidly favored private water users that the concept of the "public interest" in water has nearly been driven to extinction.

With the help of lawyers, guns, and money, we are now saddled with an archaic water allocation culture that clings to "private use extremism" against any public rights whatsoever.

To illustrate how serious this myopia has become, consider a recent public comment by Michael Styler, director of Utah's Department of Natural Resources. He stated that it would be preferable to dry up the Great Salt Lake rather than to ask existing water users to reduce any appropriated water right.

As our leading public official in charge of natural resources, Styler knows full well that the Great Salt Lake is a billion-dollar economic engine of industry and tourist dollars, with world-renowned ecological values. Yet, he would prefer to decimate that resource rather than ask even a tiny sacrifice from Utah's water-user community.

Against this dark history of official absolutism in favor of private water rights, the public trust doctrine has emerged as a legal tool with real power to restore the "public interest" in water. Values have changed and our laws and institutions need to reflect such changes.

HB68, with its frontal attack on the public trust doctrine, seeks to enshrine the outdated predominance of private interests in water management against the emerging concerns for environmental protection and public recreation.

As such, it is a dangerous impediment to social progress and must be opposed.

Darrell H. Mensel is a co-founder of Utah Waters and has served with a variety of civic organizations advocating for the ecological health of Utah's rivers, lakes and streams. He currently serves on both the Utah Water Quality Board and the Utah Water Development Commission and is a resident of Torrey.






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