COMMENTARY Sunday, February 19, 1995 Dredging Violated Preserve One would think the state and Utah County would not be involved in the raining of a federally established wetBeds preserve. One would be wrong The Central Utah Complation Act established a wetlands preserve in a porHon of Benjamin Slough, which dreins to Utah Lake near Lincoln Point. The at authorized the appropriation of $16.7 tion to acquire the preserve in BenjeSlough and Goshen Bay. According to the act, the preserves ware to be managed by the Utah Recla tion and Conservation Commission in cosperation with the Utah Division of Idlife Resources and the U.S. Fish and Wildlife Service. A preliminary draft for acquisition and management plan for the wetlands preserve was prepared and ised by the Utah Division of Wildlife Resources Sept 80, 1994 Recently, acting by reason of a permit sued by the state engineer, Utah County contracted for the dredging at the lower part of Beer Creek, which is located in Benjamin Slough Wetland Preserve. The dredging has been accomplished under the direction of the Utah County engineer. la a recent conversation with the counengineer, he reported that this far the dredging had reduced the water level in the dredging area by approximately one foot. If the dredging of wetlands borderbeg Beer Creek represents the measure of dedication of the Central Utah Water Conservancy District, the state and the US Fish and Wildlife Service to the provisions for mitigation of the Central Utah Completion Act, future CUP appropri flens would be fitting items on which a president should exercise 2 line-item vete. LILLIAN HAYES ! The Utah County Mosquito Abatement Division supports the need for conservation and management of wetlands that gives due consideration to preventing the spread of human disease, and favors the continued development of technology that permits public health concems and production of pest mosquitoes to be addressed while protecting wetlands. The Utah County Mosquito Abatement Division encourages public education about wetlands and emphasizes that all future wetlands legislation should address disease vector/public health issues. Public health and safety cannot be jeopardized in favor of private property rights while preventing the spread of disease and guaranteeing a health environment for all. Daily Herald By H. JOSEF HEBERT Associated Press Writer WASHINGTON Property owners could seek' billions of dollars for losses cansed by restricdons on the use of environmentally sensitive land under a bill passed by the House on Friday. The property rights bill, which passed by a 277-148 vote, was alled by supporters as long-awaited relief for landowners who have property devalued because of wetLands protection or rules sheltering endangered species. The bill will rem in "a bureau racy our of control and running amek, declared Rep. Richard Pombo, k-Calif. We want to restore the power of the people havng to live under this." The measure was the last of a sting of anti-regulation bills passed this week by the House under the GOP's "Comtract With Ameri"banner. The other bil's include measures that would require the federal govement to pay more attention to. costs and compare risks against benefits when issuing regulations, especially those dealing with the vironment, and make it easierespecially for small businesses to challenge federal regulations. It was micke Low the bills will face in the Senate, where it is easic for a small group of lawmakers to block legislation. More modest property rights and risks assess intet bills have been introduced in the Senate, but have yet to be debated "We hope they will not weaken (the House passed measures). This is a strong anti-regulation pack age," House Republican Whip Tom DeLay of Texas said at a Environmentalists predicted that if the House bill survives in the Senate it could amount to destroying wetlands and endangered species protection laws because agencies would be reluctant to press enforcement, fearing compensation claims they could not afford to pay.. Called the "Private Property Protection Act," the House-passed measure would broaden substantially the definition courts traditionally have given to a "regulatory taking of property. It would require a federal agenCy to compensate landowners if a federal action to preserve ecologically sensitive lands - such as wetlands or endangered species rules-reduces the land's value by 20 percent. Courts have generally ruled that a government taking occurs when all value of a property is lost. Originally designed to cover all days of floor debate agreed to narregulations, supporters during two row it to cover only federal actions taken to protect wetlands and endangered species, and rules involving federal water rights. The water provision was included to gain support of many lawmakers from the West, where water rights are crucial and constilered property. A rancher could seek compensation if the Interior Department takes water away from him and shifts it for urban use. "People believe govemment no longer is their servant - it's their master," said Rep. Billy Tauzin, D-La., one of the most vocal advocates for property rights legislation in the Flow 50 cegis PREPARED STATEMENT OF CENTRAL UTAH WATER CONSERVANCY DISTRICT Chairman Hatch, my name is Gene Shawcroft, and I am the Assistant General Manager of the Central Utah Water Conservancy District. Don Christiansen, the District's General Manager sends his thanks for being asked to testify and his apologies for not being able to be present personally. He has asked me to officer this brief statement of support for this important legislation. The Central Utah Water Conservancy District applauds your efforts and those of Senator Dole and the many other cosponsors of the Omnibus Property Rights Act. This legislation is fundamental to providing the full protections embodied in the provisions of the Constitution guaranteeing to each individual that his property may not be taken by government action without due process and just compensation. I am certain this Committee has heard numerous examples of how intrusive environmental regulations have denied a property owner the full benefit and enjoyment of his property. I am pleased today to be able to add the support of the Central Utah Water Conservancy District to the enactment of this important legislation. If I may, I would like to take a minute to suggest an area where the bill might be strengthened with respect to water rights and the doctrine of western state water law primacy. In the eastern half of the country, where water is an abundant resource, water law and water rights are based upon the riparian doctrine. Under the riparian doctrine, water rights run with the land and are attached to real property when it is sold from one owner to the next. Under riparian water law, the owner of real property also owns the water attached to it. In the western United States, water is a scarce and limited public resource which is used over and over again by one downstream user after another. We westerners follow the doctrine of prior appropriation in water law. Western water rights generally follow a rule of first in time, first in right. The right to use water does not, however, convey the right to own water. Under the prior appropriation doctrine the "right" to use water does not run with the land nor is it associated with real property at all. As you know there are many stories of fraudulent desert land developers who sold property to easterners without any water rights attached to it. Under western water law, the "right" to use water is regulated by the state water engineer who determines when, where, and how much water may be put to beneficial use by any individual. Western water rights issued by the state usually always have conditions placed upon them which burden their use. Local governments often enact ordinances which further restrict an individual's right to use water during times of drought or for public health and safety purposes. In addition, the State Engineer will sometimes "adjudicate" the rights of a river system where there are many competing water right holders. Often after an adjudication, there are some disgruntled water right holders whose prior usage has been reduced. Finally, when a water development project like the Central Utah Project is overlaid on top of preexisting projects such as the Provo River Project or the Strawberry Valley Project, there is a need for the State to obtain an operating agreement which will coordinate the projects water supply to produce more efficient use of the re source. - Due to the completion of Jordanelle Reservoir, such an operating agreement was negotiated last year for the Provo River system and was brought about with the assistance of the Bureau of Reclamation and the State of Utah. This important agreement provides for the coordinated use of Jordanelle and Deer Creek Reservoirs to maximize the storage and delivery of water and to provide adequate protection of stream flows for fishery purposes. In the Omnibus Property Rights Act, the definition of "property" and "private property" includes "the right to use and receive water". A prior appropriation water right is not private property in the same manner as a riparian water right. The difference between the nature of riparian and prior appropriation water rights is important as you consider requiring federal, state and local governments to provide compensation for actions taken which reduce the value of such rights. We believe the bill could be strengthened to provide some differentiation between riparian and prior appropriation water rights. I am certain that the authors of the draft legislation did not intend to create a new federal cause of action for every disgruntled water right holder any time his use of water is in some legitimate way altered such as in the examples I have provided above. We would be happy to have our Washington, D.C. counsel, Mr. Marcus Faust, whom you know, work with you and your staff to address this issue. Once again, I thank you for asking us to testify. Good luck as you move this bill forward. PREPARED STATEMENT OF ROBERT C. FILLERUP During a recent telephone conversation with Ron and Karen from your office, they mentioned that you were interested in cases where wetland determinations had a significant impact on a person's life. I currently represent a client involved in one of these "horror" stories. Before I relate the story, let me give you some background. I have represented the Utah Lake Landowners Association since the early 1980's. I was the attorney that filed the multi-million dollar lawsuit on behalf of the landowners because of the flooding of Utah Lake in the 1983-5, and was plaintiffs' counsel in negotiating the new compromise agreement of 1985. I currently represent several of these landowners in the condemnation action involving the Provo City Airport expansion. I also currently represent the Utah Lake Landowners in the ongoing settlement negotiations with the State of Utah concerning the ownership boundary of the bed of Utah Lake. As a result of my continued representation of landowners around Utah Lake, I have been forced to become somewhat of an expert on wetlands issues. I tell you of my representation of these folks, not to boast, but to let you know that I am not just casually involved with wetland problems. And now to the "horror" story at hand. One Wendell Averett, a resident of Springville, Utah owns some 23 acres of land immediately east of 1-15 and just north of the first exit off of the freeway to Springville as you are going south from Provo. This road is known as SR-75, and is the highway that passes by Valtek, Stoffer Foods, etc., on the way to its connection with US-89 at the north end of Springville. Immediately south of the Averett property, across this highway, is a large commercial development, known as Mountain Springs, consisting of a truck stop, hotel, restaurant, an associated businesses. This development is continuing to expand even now. Wendell has a close friend (in fact his LDS bishop) named Roger Olsen, a real estate agent who for years has specialized in listing and selling farmland through his Utah Farm Realty. Roger became aware of a company interested in purchasing Wendell's property for a commercial development, and on July 15, 1994, Wendell signed an agreement to sell the property for $30,000 per acre. ($716,100 total). In the process of purchasing, the developer inquired whether there were any wetlands problems, since there is an open drainage ditch on the far west end. Mr. Olsen indicated that he didn't think there were any, since the parcel was currently a corn field, but agreed to check with the Corps of Engineers. Upon inquiry, COE informed Roger that the property was not listed as jurisdictional wetlands, but because it was agricultural, he needed to contact the local office of the Agricultural Stabilization and Conservation Service (ASCS). Unfortunately, Roger dutifully complied. ASCS told Roger that Wendell would have to come in and sign an “AD-1026" form requesting a wetland determination, which Wendell did on August 3, 1994. ASCS then referred the matter to the local Soil Conservation Service (SCS). Only two days later, on August 5, 1994 the SCS issued its first determination in this matter. (Exhibit A). The determination indicated that there were 10 acres that SCS had decided were wetlands, and the map attached to the determination indicated those areas. By August 8th, Roger was in the SCS office, and according to the SCS file, was questioning the presence of wetlands and the acres identified as wetlands (10 acres) on the SCS-CPA-026." (Part of the record on appeal, attached as exhibit E). Roger could not believe that the areas indicated constituted wetlands, and questioned whether the areas indicated on the map would add up to 10 acres. SCS then proceeded to do a "redetermination" of its previous determination. The end result was the issuance of a new determination dated September 27, 1994, (but issued September 15th) which indicated that the entire parcel had now been determined to be wetlands. (Exhibit B). Between the time that SCS issued its first determination on August 5th, and its redetermination on September 15th, the Corps of Engineers issued a Public Notice concerning the expansion of the South University Avenue interchange in Provo by the Utah Department of Transportation (UDOT). (Exhibit C). A copy of this notice was sent to Wendell Averett, because part of UDOT's plan included taking Wendell property as a wetland mitigation site. This notice was the first time that Wendell had ever been aware that UDOT was including his property as part of its plan. Its clear from the record that SCS and COE were communicating about Wendell's property between the two determinations and during the issuance of the Public Notice |