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For a rickety, 70 year old dam remarkably constructed with muscle, mortar and horses, the Fox Lake Reservoir at the top of the Uinta River in the High Uintas Wilderness is surely creating its fair share of controversy (see HUPC LYNX 4/01, HUPC Special Action Alert, 2/01, and HUPC Newsletter, 4/98). Because of its state of disrepair, the fact that it is within the High Uintas Wilderness and Dry Gulch Irrigation Company's (DGIC) desire to rehabilitate the reservoir to continue to use water for agricultural purposes in the Uintah Basin, the Ashley National Forest is in the process of preparing an Environmental Impact Statement (EIS) to determine if it should be repaired (see HUPC LYNX, 4/01, and HUPC Special Alert, 2/01) and in what manner-- horse and buggy versus chopper and tractor!

The reservoirs are managed under a special use permit. Back in 1997- 98 the Forest Service ordered a significant draw-down on Fox Lake because of this disrepair. The water users appealed the draw-down and, with incredible hubris and irony, argued against using a helicopter to go into the wilderness and immediately draw-down the water level, stating their appeal before the Regional Forester: "The helicopter flights required by the order are not inconsistent with wilderness values" (emphasis added.) The Regional Forester ruled against the water users.

Of course, in the real world, the irony that makes us smile and leaves most of us cynical and able to see a sham when it presents itself may well result in a meaningful disfiguration of the High Uintas Wilderness.

Today the Dry Gulch Irrigation Company, with the unfortunate support of the Forest Service, has requested almost two dozen helicopter flights, cement mixers and a tractor/loader along with the preparation of a hazmat plan! This has a bureaucratic lingo-- "the minimum tool." This does not represent a minimum tool (the test provided under the Wilderness Act-- if a dam is to be re-constructed or repaired under the Wilderness Act, it must be approved by the Regional Forester [repair] or President [reconstructed] through an EIS along with a minimum tool analysis) and the dam could be repaired using tried and true methods consistent with the historical construction of the reservoir Yet it is clear the Forest Service will approve heavy mach inery to repair the dam.

Furthermore, late in the process (early June) the Forest Service informed us, after this proposal had been publicly "scoped" twice, that because of a 1986 amendment, the "Ditch Bill," to the Federal Land Policy Management Act (FLPMA), which controls some rights of way issues on Forest Service lands, the Forest Service must now not only allow the reconstruction/repair of the Fox lake Reservoir but must grant the equivalent to a private property easement to DGIC and Fox Lake!

The "Ditch Bill" amended Title V of FLPMA requiring the Forest Service to issue permanent easements for water conveyance systems if in operation prior to October 1976 and requested before the end of 1996, as long as a valid water right exists. It is used for agricultural irrigation along with a number of other minor requirements. Terms and conditions are to be established to maintain the facility consistent with, in this case, wilderness and maintenance of the private easement.

Interestingly, prior to 1996 the Forest interpreted the "Ditch Bill" as not pertaining to designated wilderness. In fact, in the opening lines of the "Ditch Bill" state wilderness lands are exempt. However, in 1996 the Forest Service issued new guidance stating that in spite of the exemption, the "Ditch Bill" added a new subsection to FLPMA that covered all National Forest lands.

The consequences of this issue are profound. Unlike the control over the existing special use permits, if the Forest Service proceeds with granting Ditch Bill easements in the High Uintas Wilderness (or many other wildernesses), all the agency can do is place minimal terms and conditions on the easement-- NONE OF WHICH CAN AFFECT THE OPERATION OF THE EASEMENT! Furthermore, if Fox Lake Reservoir is repaired/reconstructed as proposed under state law, the reservoir will have to meet a moderate/high hazard rating, requiring regular access for safety inspections and maintenance. One can bet DGIC will insist on motorized access, including helicopters, and the Forest Service will simply bow to DGIC. Proof? The Forest Service has already agree d helicopters are necessary for the repair work!

Once this investment is made and DGIC owns an easement at Fox Lake, the hoped- for decommission of Uinta River reservoirs will dissolve. Instead of being decommissioned and stabilized like the proposal for the 13 small reservoirs on the Lake Fork and Yellowstone drainages (see HUPC LYNX, 4/01), Fox Lake, Crescent, Atwood and the Chain Lakes will be enhanced and "privatized." While it is a complex issue because of water rights, jumping this far with this much vigor will assure the context of the High Uintas Wilderness and the Wilderness Act itself will change dramatically. Congress never intended that publicly owned acres designated as wilderness under the 1964 Wilderness Act be swamped in the name of private easements simply to make resource development easy.

It is worth noting here that if the proposal to decommission and stabilize the 13 small reservoired lakes on the Lake Fork and Yellowstone drainages falls through, those reservoirs will qualify for Ditch Bill status. One need not have a particul arly vivid imagination to see how the major South Slope drainages will be wilderness in name only!

And because of this monumental change of context and content we have requested that the Forest Service scope the entire Fox Lake project so folks will fully understand the consequence of such an action.

Dick Carter

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