Water

“Whiskey is for drinking; water is for fighting over.”

– This quote has been attributed to Mark Twain, but until the attribution can be verified, the quote should not be regarded as authentic according to this Mark Twain quotes website.

There have been many stories about this out in the press recently. I have tried to stay away from it as it is a fairly specialized issue, involves water law (which I know enough to know is very complicated), plus is officially under the cone of litigation silence. However, I bet there are others on this blog who know enough to be able to ensure that we hear both sides of the story. This from Courthouse News Service (note that these folks simply describe the situation as the plaintiff sees it, without an attempt to hear the other side). I do wonder to what degree the cone of litigation silence allows people to get a first impression of a case that is negative to the agency. Also, it may be interesting to see how our usual discussion over the tactics of using litigation as a tool is influenced (or not) by the agenda of the group litigating.

One of our readers called and wondered why I hadn’t posted, so I rethought and here it is.

DENVER (CN) – The National Ski Areas Association claims the U.S. Forest Service illegally seized privately owned water rights without compensation from 121 resorts on federal lands, via a “stunning and unprecedented directive.”
U.S. ski resorts generated $2.6 billion in revenue in 2009, according to IbisWorld, a market research group.
In its federal complaint, National Ski Areas Association says the Forest Service and Department of Agriculture have no authority to demand water rights that resorts must acquire under state laws “at great expense and effort.”
The Lakewood, Colo.-based trade association, established in 1962 “to foster, stimulate and promote growth in the industry,” represents 321 resorts, which account for more than 90 percent of annual ski and snowboard visits nationwide. Of its members, 121 must periodically obtain special use permits to operate on National Forest System lands, according to the organization’s website.
The Forest Service directive, issued in 2011, added a 7-page clause – Clause D-30 – to its handbook and “dramatically alters the settled legal regime governing water rights at ski areas on National Forest System lands,” according to the complaint.
The directive forces ski area permit holders to assign permanently or quit claim to privately owned water rights without payment; prohibits resort operators from selling their water rights to anyone except a future resort operator; and significantly reduces the economic value of water rights that the owners acquire, the association says.
It also forces permit holders to grant the Forest Service power of attorney so that the agency can execute documents to seize, control, and transfer the permit holders’ water rights, and requires permit holders to waive any legal claim for compensation from Uncle Sam.
The directive, the nonprofit ski association says, was adopted without public notice and violates the Administrative Procedures Act, the National Forest Management Act and the 5th Amendment.
“No legislation authorizes the Forest Service to use its ski area special use permit authority to exercise dominion and control over water rights arising under state law,” the association says.
Special use permits, generally issued for 40-year terms, terminate automatically upon a change in resort ownership.
Winter Park Resort and Steamboat Ski Resort in Colorado, Brighton Ski Resort in Utah, Sierra-at-Tahoe Snowsports Resort in California and others will be hurt by the directive, the complaint states.
“[T]he Forest Service may purchase water rights from their owner if the Forest Service wants to obtain them for use on National Forest Systems lands,” the association says.
This winter, lack of snowfall has forced resorts across the county to rely heavily on what they are able to produce.
The association seeks a nationwide injunction to enjoin the Forest Service’s application of the directive.
It is represented by Exekiel Williams with Ducker, Montgomery, Lewis & Bess.

This weekend, I ran across two news stories that reflect two different watershed assessments. Since both stories came out at the same time, it might be confusing. Forests to Faucets is one, and Watershed Condition Assessment is the other. F2F is about drinking water, and WCA is based on a broad range of indicators found here.

This news story is about the Forests to Faucets map here.
Excerpt:

SAN ANDREAS – New maps posted online this month by the U.S. Forest Service pinpoint where the nation’s drinking water is most jeopardized by wildfires and other threats to high-country forests.

One of the hot spots, according to the maps, is the headwaters of the Mokelumne River in the high Sierra east of Stockton.

The new mapping effort is called Forests to Faucets. The data behind it is why water utilities in some western cities now help pay to maintain portions of nearby national forests.

While this article, about the Helena National Forest, I think is about the watershed condition assessments found here. Here’s the user’s guide.

Excerpt:

HELENA, Mont. — A U.S. Forest Service report identifies the Helena National Forest as having the worst watershed conditions of all national forests and grasslands in a region that includes Montana and parts of Idaho, North Dakota and South Dakota.

“We knew we had issues because of the history of the Helena forest,” said Meredith Webster, a soil scientist for Forest Service Region 1, which produced the report. “When the Forest Service acquired those lands, there had been a lot of heavy use on them. So while the results weren’t surprising, it certainly got our attention.”

The heavy use includes a century of mining, logging, fire suppression and other human activities.

The report looked at forest watersheds and classified findings such as water quality and quantity, aquatic life, roads, trees, vegetation and soils. From that a watershed received a rating of Condition Class 1, 2, or 3. A CC rating of 1 meant the watershed was fully functioning, while a CC rating of 3 meant a watershed that needed serious help.

The report found the Helena National Forest had 28 watersheds in need of serious help. Most other forests had zero to six. Most other national forests in Region 1 had from 57 to 158 watersheds in the category 1 rating. The Helena National Forest had 15.

Some have told me they had trouble finding these; here’s the entire Secretary’s press release and here are the maps.

June 3, 2011– Agriculture Secretary Tom Vilsack today announced the release of a new map that characterizes the health and condition of National Forest System lands in more than 15,000 watersheds across the country. The U.S. Forest Service’s Watershed Condition Classification Map is the first step in the agency’s Watershed Condition Framework, and is the agency’s first national assessment across all 193 million acres of National Forest lands. Vilsack made the announcement at a USDA event in Washington highlighting the United Nation’s International Year of Forests.

“Clean, healthy forests are vital to our efforts to protect America’s fresh water supply,” said Vilsack. “Our nation’s economic health, and the health of our citizens, depends on abundant, clean and reliable sources of freshwater. The Watershed Condition Framework and map will help provide economic and environmental benefits to residents of rural communities.”

The map establishes a baseline that will be used to establish priorities for watershed restoration and maintenance. The national Watershed Condition Framework establishes a consistent, comparable, and credible process for characterizing, prioritizing, improving, and tracking the health of watersheds on national forests and grasslands. The Framework also builds added accountability and transparency into the Integrated Resource Restoration program which is included in President Obama’s budget proposal for the next fiscal year.

The Framework uses three watershed condition classifications:

Class 1 watersheds are considered healthy.
Class 2 watersheds are relatively healthy, but may require restoration work.
Class 3 watersheds are those that are impaired, degraded or damaged.

Additional benefits to the Framework are the opportunities it provides to current and future partners in watershed restoration and maintenance. It also increases the public’s awareness of their local watershed conditions and the role they can play in improving them. The Forest Service expects that as the map gains more widespread use, it will promote the department’s “all-lands” approach to managing the nation’s forest and landscapes.

Char’s post today is written in support of Change.org’s Blog Action Day, which this year is focused on water.

The monsoonal rains this summer came down so hard, so fast, that when they finally stopped, much of Pakistan was inundated.

No one doubts but that the speed and amount of rain overwhelmed the capacity of the land to absorb it all; the surging floodwaters, and the devastation they wrought, were a direct consequence of nature’s clout.

But humans had a distinct and heavy hand in the stunning devastation: for the past decade or more, Taliban fighters in the northwestern Swat Valley ignored Pakistan’s environmental regulations with every swing of their axes: “Employing termite-like efficiency,” the Los Angeles Times reports, “the militants felled and carted away vast swaths of Himalayan cedar, blue pine and oak, leaving mountainsides dotted with stumps.” They ripped out the timber to fund their political agenda and military campaigns that have so unsettled the region. Just as consequential is the denuded terrain they left behind; local farmers and Pakistani environmentalists are convinced that these illegal harvests contributed significantly to the floodwaters’ overwhelming force. Observed Ghulam Akbar, director of the Pakistan Wetlands Program: “Deforestation played a tremendous role in aggravating the floods. Had there been good forests, as we used to have 25 years back, the impact of flooding would have been much less.”

Akbar’s assertion of a tight link between environmental devastation and downstream flooding, and the related claim that maintaining forest cover would have mitigated the resulting damage, is not just an early twenty-first-century argument. It also was central to the creation of a powerful environmental movement in nineteenth-century America. One of its key architects was George Bird Grinnell,

a shrewd rhetorician and skilled organizer, who through his bully pulpit as publisher of Forest and Stream transformed how his fellow citizens conceived of their place in and responsibility for the landscape that sustained them.

Consider his seminal 1882 editorial, “Spare the Trees,” (page 19, here) a brilliant articulation of the ineluctable connection between water and forests. Speaking to his audience—which consisted of hunters and anglers, conservationists, politicians, and scientists—Grinnell challenged them to stop what he called “tree murder.” To succeed in this struggle, however, required them to appreciation the complex interactions between resource exploitation and forested ecosystems. Regulatory action could achieve only so much, he noted: “All the protection that the law can give will not prevent the game naturally belonging to a wooded country from leaving it when it is deforested, nor keep fish in streams that have shrunk to a quarter of their ordinary volume before midsummer.” To insure the “the proper and sensible management of woodlands” Americans must think in terms of habitats, Grinnell declared, a declaration that led him to close his commentary with a succinct, bumpersticker-like refrain: “No woods, no game; no woods, no water; and no water, no fish.”

Grinnell used his words to alter the political landscape. Through his magazine columns, social connections in New York City and Washington, D.C., and backroom lobbying along the nation’s corridors of power, he helped build a political consensus around the need to protect high-country watersheds. One outcome of which was congressional legislation that in 1891 gave the president the power to establish forest reserves on the public domain in the west. Known officially as the Land Revision Act of 1891, it granted the chief executive the authority to “set aside and reserve…any part of the public lands wholly or partly covered with timber or undergrowth, whether of commercial value or not.” Under its provisions, President Benjamin Harrison declared upwards of 13 million acres to be protected forests, the first of which was the Yellowstone National Forest; his successor, Grover Cleveland, added another five million. What is striking about the acreage they set aside is where it was located. Although the 1891 Act did not specify which lands qualified—outside of its claim that they have some kind of growth on them—those these two presidents designated were wrapped around and along mountainous watersheds. Grinnell’s claims had achieved legislative sanction.

They secured even greater authority six years later when Congress enacted what is now known as the Organic Act of 1897. It resolved a critical set of related questions about which the 1891 law had been silent: if some public lands became forest reserves, what were they reserved for? How, if they were to be managed, would they be managed? The new act answered these queries: it gave the Secretary of the Interior the authority “to improve and protect the forest within the reservation,” with a particular goal in mind: “securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States.” Note that water flows preceded timber supplies, that the regulation of forest-cover in watersheds was the legislation’s preeminent concern.

The dynamic link between water and forests received even greater impetus with the passage of the Weeks Act of 1911. Initially proposed in the 1890s in response to intense logging in New Hampshire’s White Mountains,

and to similar depredations within the southern Appalachians, it took nearly 15 years for the legislation to clear Congress.

One reason for the delay was that the bill for the first time would grant the president the ability to use public funds to purchase private lands, a power that its opponents declared to be unconstitutional. They also rejected the proponents’ demands that the president use the power of the purse to protect the aesthetic qualities of the lands then under an axe-attack. Snorted Speaker of the House Joe Cannon: “Not one cent for scenery.” (yes, this is the Cannon for whom the Cannon House Office Building was named- sf).

Chastened but unbowed, conservationists revised their tactics and rhetoric, ripping a page from the George Bird Grinnell playbook: they wrote countless editorials and delivered innumerable speeches that explicitly tied cutover mountainsides to the flashfloods that ripped through industrial cities lining the banks of the Merrimack River that rose out of the White Mountains; they circulated innumerable photographs that illustrated these and other damaging ramifications of unrestrained logging in North Carolina and New England’s northern tier.

This is actually the 1936 Flood, but this is emblematic of the flooding that routinely surged down the Merrimack River, and which conservationists and business leaders were convinced was a partial consequence of heavy logging in the White Mountains.

And they redrafted what would dubbed the Weeks Act, named for its savvy floor manager, John W. Weeks,

a successful banker then representing a suburban district outside of Boston. The new version made no mention of the preservation of landscape beauty, as is captured in the legislation’s official (and leaden) title:

AN ACT TO ENABLE ANY STATE TO COOPERATE WITH ANY OTHER STATE OR STATES, OR WITH THE UNITED STATES, FOR THE PROTECTION OF THE WATERSHEDS OF NAVIGABLE STREAMS, AND TO APPOINT A COMMISSION FOR THE ACQUISITION OF LANDS FOR THE PURPOSE OF CONSERVING THE NAVIGABILITY OF NAVIGABLE RIVERS

Nothing could have been more utilitarian and yet nothing less would have persuaded Speaker Cannon to allow the legislation to come to the floor for a vote. It passed, and on March 1, 1911, President William Howard Taft signed the Weeks Act into law. With his signature, the national-forest system became fully national in fact, and watershed protection became the unifying policy mandate.

That concerns over water and watersheds were the driving agents behind the crafting of early U. S. environmental regulation may be a boon to contemporary Pakistani conservationists. Here’s hoping that they can turn the recent disastrous floods into a powerful campaign for the rigorous protection of upstream forests.

Char Miller is director and W. M. Keck Professor of Environmental Analysis at Pomona College, Claremont, CA. He is author of the award-winning Gifford Pinchot and the Making of Modern Environmentalism and editor most recently of Cities and Nature in the American West and River Basins in the American West.