Trout
Unlimited Launches the Utah Water Project to Protect State Fisheries
By Alan
Matheson, Jr 
Director, Utah Water Project for Trout
Unlimited
(Published
May, 2002, Utah Outdoors magazine)
Autumn’s first reach touched
the September afternoon on Boulder Mountain. Piercing the crystalline air, the
sun ignited gold-spangled aspen groves. The breeze carried a faint bite,
portending the season’s change. My cousin, Mark Matheson, and I set up camp in
a clearing near the headwaters of a small creek. From this humble alpine birth,
the creek would cascade to the desert below, join with the Escalante as sculptor
of fanciful canyons, and add its voice to the thunderous choir of the Colorado
River. Unaware of its destiny in the Sea of Cortez, the diminutive current ran
still. The pristine stream embodied my concept of archetypal mountain
waters—clean, clear and cold. I use the term “concept” because streams in
such unspoiled condition are increasingly rare outside the world of memory or
imagination.
Not
wanting to waste the fleeing daylight, Mark and I pulled on our waders, rigged
our fly rods, and headed upstream in search of one of the few remnant
populations of native Colorado River cutthroat trout. There was no trail along
the stream, no garbage, in fact, no sign of man. Our caddis flies danced over
shimmering riffles and enticed rising fish in transparent pools. Many of these
wild trout likely had never seen an artificial fly, and they readily yielded to
temptation. In two hours on the stream, we brought at least 50 trout, mostly
browns, to hand. We admired their brilliant coloring and vivid markings, then
gentle released them to the current where they flashed to cover. Only the
discouraging thought of navigating the return to our campsite in darkness
finally pulled us from the water. As we walked through the twilight, we saw
abundant wildlife, but no other people.
Night was dark and
transparent—no moon, no clouds, no city lights. From our perch at 8000 feet,
the starry display was stunning and humbling. Such conditions often inspire
deeper thinking and introspection, and so it was with us. Mark and I discussed
our common heritage, our roles in the world, and the legacy we would leave our
children. In particular, we wondered whether our children and grandchildren
would have the opportunity, as we had, to pursue indigenous trout in unsullied,
free-flowing waters.
*
* *
The concerns underlying the
question Mark and I asked on Boulder Mountain are real. Utah is the second
driest state in the nation. Unfortunately, we also rank second in per capita use
of public water supplies. The consequences are predictable. Utah’s Division of
Wildlife Resources has determined that more than half of the state’s fisheries
suffer from stream dewatering. Without changes, the problem will only worsen as
rapid growth threatens to overwhelm currently-developed water supplies. In 2000,
Utah’s population was about 2.2 million. That figure is expected to increase
to 3.2 million by 2020, and could more than double to about 5.0 million by 2050.
Some public water suppliers anticipate shortages before the end of the decade.
Their eyes will turn to the remaining trout streams for new water projects.
Although these projections are
sobering, the situation is not yet dire. In fact, Utah is not running out of
water. Much of our water is wasted. Homeowners, for example, could cut their
water use by 25% simply by avoiding over-watering
their lawns, and many farmers still flood irrigate despite the availability of
much more efficient techniques. Water flows through canals and ditches in urban
areas even though the fields they once served are covered with subdivisions.
Moreover, if the water currently used for agriculture in the state were
dedicated to municipal and industrial use, we could supply many times our
existing population. While few, if any, of us would want to see that many people
in Utah, or the associated loss of a productive agricultural sector, the point
is clear: the core problem is not so much the quantity of available water as it is the use of that water.
Ideally, state law should
allocate our public water resources to the highest economic, social and
environmental uses, promote conservation, and provide reasonable protection of
natural stream flows. Unfortunately, it does not. Utah’s outdated water law,
which is based on the “prior appropriation” doctrine, actually imposes
barriers to protecting streams, making the best use of our water, and the free
exercise of private property rights. The “prior appropriation” system was
born of customs in the mining camps of the mid-1800s, when people were scarce
and resources, including water, were plentiful. Its goal is to divert water from
rivers and put it to “beneficial use,” a lenient standard encompassing
virtually any use of water out of the streambed. The first person to make
beneficial use of the water holds the senior right, regardless of the social or
economic value of that use or the impact of the diversion on fish or the aquatic
environment. In fact, the pure “prior appropriation” doctrine
allows—indeed encourages—the complete dewatering of streams. A water rights
holder who does not exercise his right, or who wants to leave his allocation in
the stream, loses that right. Historically (and even among some modern water
developers), any water left in the natural watercourse was considered wasted.
We live in a different world
today, faced with the realities of increasing demand on a limited resource.
Science continues to confirm that streams and the riparian habitat they foster
literally are the lifeblood of the environment. We recognize now the significant
economic value of instream flows. For example, the U.S. Fish and Wildlife
Service determined that wildlife-associated recreation (including fishing,
hunting and wildlife viewing—all activities associated with natural
watercourses) contributed $172,678,000 to the Utah economy in 1996. Many
economic analysts put that number much higher. And polling demonstrates that the
public increasingly favors instream uses of water. Yet the principles of
“first in time, first in right” and “use it or lose it” continue as the
core of Utah water law.
Utah has modified the strict
“prior appropriation” system to allow certain state agencies to hold
instream flow rights—rights that permit the water to be left in the stream for
environmental or recreational purposes without threat of forfeiture—but only
in the narrowest of circumstances. Because of the tight restrictions on using
this provision, the state holds very few instream rights. No one else in Utah
can hold an instream flow right under any circumstances. A Utah statute
requiring consideration of public recreation and the natural stream environment
in water allocation decisions gathers dust. As a practical matter, Utah law does
not protect stream flows.
We cannot maintain the status
quo and expect our quality of life to continue. The prescription may be tough to
swallow: use less water, manage growth, and fine-tune and enforce state law to
better facilitate water transfers to more efficient, higher-valued uses,
including instream flows. The alternative is worse: additional water development
projects that further degrade our few remaining free-flowing rivers and the
ecosystems and recreation-based economies of nearby communities that depend on
those rivers.
Trout Unlimited recognized
these challenges and responded by opening the Utah Water Project in August 2001.
Trout Unlimited is the leading coldwater conservation organization in the nation
and has a significant presence in Utah. Its mission is to conserve, protect, and
restore North America’s trout and salmon fisheries and their watersheds. The
Utah Water Project supports that mission by promoting new ways to protect
natural stream flows and working to make the water allocation
process—traditionally dominated by entities that remove water from
streams—more accessible to the public. While we pursue these goals within
current law, we also seek some modest reform of the “prior appropriation”
system. The Utah Water Project does not, however, intend to challenge existing
rights held under that system. Those are legitimate rights that should be
respected. Consequently, we want to work with water right holders to protect and
restore stream flows using creative, voluntary, market-based approaches such as
water leasing or donations of water rights for conversion to instream flow
rights.
This approach has proved
successful in other states. In Montana, for example, Trout Unlimited and a local
rancher entered into a water lease this past summer that maintains significant
flows in three tributaries of the famed Madison River. The rancher changed his
operations and no longer needed the water; he also wanted to exercise
responsible stewardship over his land. Also in Montana, Trout Unlimited is
working with several irrigators along the Blackfoot River to improve their
irrigation efficiency. In turn, the landowners will lease Trout Unlimited their
conserved water for the benefit of the river and its fishery. The irrigators
profit from reduced operating costs and tax advantages. Anglers and other
recreational interests benefit from enhanced flows in a blue-ribbon trout
stream. And the local economy benefits from increased spending at community
businesses. With some minor changes in state law, Utah could achieve similar
results.
There is much at stake: a
sustainable economy, clean and plentiful drinking water, healthy riparian areas,
wildlife, recreational opportunities, and more. The Utah Water Project cannot
accomplish its mission alone, nor does it have to. There are hundreds of
thousands of Utahns that love streams, including nearly half a million anglers
and many more that simply enjoy viewing wildlife, picnicking with their families
along a creek, or the serenity of moving water. Together, we can exert
significant political influence.
All anglers in Utah enjoy the
unparalleled beauty of the state and the privilege of fishing its waters. Few
recognize, however, that this privilege is in jeopardy. We can no longer take it
for granted. Fishing in the future will come at a price—the price of today’s
commitment and action to preserve clean, free-flowing streams where fish can
reproduce and thrive. Each of us can contribute regardless of age, health or
financial means, whether by engaging in the political process, participating in
stream restoration projects, joining organizations working to protect fisheries,
or simply minimizing our impact on the state’s waters.
As I have traveled the state, I
have been heartened by the public’s general willingness to exercise
responsible stewardship over Utah’s natural resources. But this is no time for
complacency. Our continuing efforts are critical to the economy of Utah and to
the quality of life of its residents, especially our children.
*
* *
Mark and I spent the next day
working with employees of the Utah Division of Wildlife Resources on a project
to protect a threatened population of Colorado River cutthroat trout. Tired, but
rewarded, we began our drive home at dusk. The road along the western slope of
Boulder Mountain afforded us a spectacular view of a fiery sunset over the
Tushar Mountains. We pulled over and watched with reverence as the flaming
brilliance cooled to glowing embers, then to fading pastels. It was September
10, 2001. The peace of the moment belied the horror that would meet the sun’s
rise the next morning.
Those sobering events should
inspire each of us to work today to secure a better tomorrow. Let’s begin here
. . . now.
About
the author: Prior to joining TU, Alan
Matheson practiced water and environmental law as a partner in a Phoenix law
firm; worked as Senior Attorney and Environmental Policy Advisor for an electric
utility in Arizona; and served as a law clerk for a federal judge on the Ninth
Circuit Court of Appeals. Alan is a graduate of the UCLA School of Law and holds
a bachelor's degree from Stanford university in International Relations. A
native of Logan, his passions include backpacking through the canyons of the
Colorado Plateau and fly fishing Utah's mountain streams with his wife and
children.
