FOX LAKE DEIS WATER RIGHTS VERSUS WILDERNESS VALUES
The long awaited Draft Environmental Impact (DEIS) Statement for the Fox /Crescent Lake Reservoir maintenance project on the upper reaches of the Uinta River within the High Uintas Wilderness now sits on the analyst's desk in the Ashley National Forest awaiting a final recommendations and release as a Final EIS (see LYNX 4/98, 4/01, 8/01, Special Alerts 4/01, 12/02).
To be blunt, the DEIS is built upon the presumption that the High Uintas Wilderness and Wilderness Act are secondary to the water rights associated with the two reservoirs and the reason the reservoirs are undergoing major repairs. While we fully understand the interaction between extant water rights and the Wilderness/Utah Wilderness Act, the DEIS largely relegates the symbiotic friction between the two contexts to a clear dominance of water rights and feebleness of statutory wilderness. This is an inappropriate and improper assumption of the purpose and need within the DEIS.
The bias starts early and most notably with the dismissal of the one alternative that can't be dismissed-the minimum tool analysis/primitive tools, equipment and access. In the context of analyzing projects in designated wilderness, it is incumbent to fully acknowledge, analyze and disclose this alternative. To suggest it is not acceptable because as the DEIS states, "the skills to use these methods no longer exist " misses the necessary point of analyzing the minimum tool approach as part and parcel of the review process simply because the area is a designated wilderness. There is no point to a minimum tool analysis if it is not part of the disclosure and review procedure. This is also common sense and we were surprised to see it dismissed so casually.
The analytic bias continues with the presumption that the long term operation of the reservoirs will require some future level of motorized access for inspection and operation. Nothing but conjecture is offered. There is, in fact, no rationale that future motorized access for routine operation, inspection and maintenance and operations is or will be necessary-there is no such federal or state requirement. In fact, there is a powerful disincentive-the area is designated as Wilderness!
This leads to another substantive issue not analyzed and largely glossed over in the DEIS-the failure of the Dry Gulch Irrigation Company, the reservoir users, to meet the special use permit requirements of proper inspections and maintenance. Clearly, the disrepair of Fox Lake, in particular, is plain evidence that the reservoir and its works have not been routinely and properly maintained. This is not to suggest that a 70+ year old dam would not show signs of aging. It does suggest that DGIC simply failed to adequately and routinely address these problems.
This was obvious in late 1997 and early 1998 when the Ashley National Forest instructed DGIC to draw Fox Lake down to 50% capacity because of high water conditions late in the year due, in part, to concerns about the integrity of some of the reservoir structure/operations. DGIC appealed this decision, arguing the dam was safe, in spite of concerns by Forest Service and Utah State hydrologists and engineers. The appeal was denied and DGIC was instructed to reduce water levels, yet they took over a month to finally respond to the appeal requirements.
OF ADDITIONAL IRONY AND OBFUSCATION, THEIR APPEAL (February 17, 1998) TO THE REGIONAL FORESTER STATED, "The helicopter flights required by the order are not consistent with wilderness values." Of course, we agree with this particular statement and find it interesting the Forest Service is so willing to allow DGIC the use of a helicopter now that they have decided the reservoirs need repair. All of this makes it reasonably clear DGIC has done little to live up to the terms within the special use permit, requiring the Forest Service to analyze revoking the permit as part of this NEPA process.
The HUW has been designated since 1984 and the Forest Service has had two decades to require DGIC to remove/ decommission these reservoirs and preserve the water rights downstream, given the fact that the status of the land had obviously changed to a "higher and better use"--designated wilderness. The actions now initiated by DGIC and wittingly endorsed by the Forest Service do more to preserve the reservoirs indefinitely than the stated policy to phase them out of designated wilderness.
The purpose and need of this DEIS is set too arbitrarily in that solutions to the conflict are available and should be pursued. The DEIS simply is not concomitant with the real purpose and need that is at stake-preserve wilderness values and water rights. As it is now set, the Forest Service has simply chosen to relegate wilderness values to a sub-standard. That is not appropriate.
Staying with the approach the DEIS identifies provides a disincentive to reach the stated policy of removing/decommissioning/stabilizing these reservoirs from the High Uintas Wilderness. It assures the reservoirs will remain in the HUW in a fashion inconsistent with the wilderness values themselves and subject to motorized access for another life span. That seems to take us nowhere!