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Utilizing Irrigation Canals in Northern Utah for Recreational Trail Use: An Evaluation of Issues and Concerns
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CHAPTER II - HISTORY OF UTAH’S WATER DEVELOPMENT
The longer you look back, the farther you can look forward
It is important to have a general understanding of history. A heightened awareness and understanding of where we are today and how we got here can only aid in the preparation and planning of our future. An understanding of the central role irrigation canals and ditches in the arid west have played in the development of this region will lead to an appreciation of their value in the landscape and enhance our sense of place. For these reasons a brief history of irrigation canals in Utah follows.
VITAL ROLE IN SUCCESSFUL CIVILIZATIONS
Throughout history canals have played a vital role in successful civilizations. The diversion of water for the purpose of irrigation goes back to ancient civilizations such as Egypt, Mesopotamia, China, India, and Mexico and of course the New World (Kienast, 1996). Throughout history societies such as these expanded and grew from river valleys that contained the arteries needed to supply their life’s-blood through man made irrigation systems.
In North America, specifically the West, evidence of irrigation is found in prehistoric remains of the Mogollon culture in southwestern New Mexico and southeastern Arizona, the Anasazi in the Four Corners area and the Hohokam along the Salt and Gila Rivers in Arizona. The Hohokam diverted and built over 1200 miles of irrigation canals dating from approximately 100 B.C to 1450 A.D (Kienast, 1996). Long before the discovery of the New World by Europeans, Indians of the North American Southwest diverted water to irrigate their crops (Fuller, 1994). Archaeological evidence of ancient ditches in Arizona, New Mexico, and the southern part of Utah, indicates people who practiced irrigation thousands of years ago populated these areas. The modern practice of irrigation farming in the Gila and Salt River valleys, and the Colorado River Basin, is to an extent a revival of ancient irrigation developments (Zierer, 1956).
These ancient cultures had been long gone by the time the Spanish conquistadors arrived in the sixteenth century. However they did encounter the remaining Pueblo peoples who were still practicing a fundamental form of irrigation. Making note of this, they also brought with them a long tradition of irrigation knowledge and practice. They came from an old Castillion culture which had inherited the knowledge of centuries of irrigation practice in the hot, dry lands of their Spanish and Moorish ancestors (Kienast, 1996).
Some cities are known for the beauty of their canals such as Venice, Amsterdam and Bangkok, to name only a few (Kienast, 1996). These canals are not irrigation canals but are used for navigation and transportation of people and goods. In the eastern United States close to 5,000 miles of navigation canals were built from the late 1700’s to the mid 1800’s. During this time these canals and their adjacent towpaths served as primary transportation arteries, along which numerous cities and towns grew and flourished (Rails-to-Trails Conservancy and National Park Service, 1995). Chicago is one such city. On July 4, 1836, a few pioneers from other East coast cities, began digging and twelve years and 97 miles later finished the Illinois and Michigan Canal, connecting the Chicago and Illinois rivers bringing the eastern and western waterways together. This narrow waterway opened the Midwest to farmers and industrialists in the East, helping to transform the United States from a union of small coastal colonies into an expanding nation (Davidson, 1998).
A basic summary of the major philosophical paradigms that existed during this pioneering and territorial period of American history will help in understanding the different lexicon of thought that existed and how it effected the way water was ultimately viewed in Utah’s history. During this period, the Anglo view of water and the way it had been treated was based on their general view of the world and their belief in the tenets of democratic capitalism, in the Protestant ethic, and in development and progress. The resources of nature, which were viewed as inexhaustible and removable, were to be harnessed and developed. Increased production and economic growth would lead to progress, which in turn would produce benefits to be equitably distributed throughout the market. The land and its resources were viewed as capital to be used to produce and accumulate wealth and as commodities to be marketed and used for speculation. Eventually, water too was seen as a commodity with rights and shares of irrigation stock to buy and sell. In the arid west water was the key to utilizing and profiting from the land and its natural resources (Endter, 1987).
MORMON SETTLEMENT OF UTAH
Mormon settlement of Utah was an anomaly in this capitalist development of the western United States, and they made up a distinct American subculture. Towns and settlements were uniquely patterned to promote community and religious life and the land and all its natural resources were treated as public property (Endter, 1987).
The Mormon settlement of Utah was entirely dependent upon diversion of water for irrigation. They were the first Anglo-Saxons to practice irrigation on such a large scale in the United States (Hutchins, 1965). Mormon pioneers have been called the fathers of irrigation in America, but were not the first to irrigate land in the west. The Catholic Missions in California and New Mexico, for example, had been irrigating their orchards and vinyards long before the Mormons settled in Utah in 1847. Several years prior to the arrival of the Mormon pioneers to the Salt Lake Valley, some of the first settlers in Oregon had been using small ditches to irrigate their crops. And, at the time of the Mormon settlement in Salt Lake Valley, Indians in southern Utah were raising crops with the aid of irrigation. While on an expedition to southern Utah, Parley P. Pratt wrote about the existence of irrigation ditches used by Indians living along the Santa Clara River (Fuller, 1994). So, it would be more correct to say that the Mormon pioneers significantly influenced modern irrigation law (namely, the theory of beneficial use as part of the doctrine of prior appropriation) and should be credited to elevating irrigation to something of a science (Palmer, 1978).
The development of irrigation in Utah dates back from July 21st 1847 when pathfinders for the first company of Mormon Pioneers, Orson Pratt and Erastus Snow, upon entering the Salt Lake valley, made a preliminary survey of its resources. Two days before Brigham Young entered the Salt Lake Valley and proclaimed “this is the place,” this advance party began to dig furrows diverting water from City Creek and proceeded to build a dam to irrigate the dry soil. They planted potatoes the morning of the next day. In October of 1848 there were a total of 1,891 immigrants in Salt Lake valley (Israelsen, 1954). Eventually, small irrigation works with their small carrying capacities were constructed at the mouth of canyons and extended only short distances along the lower foothills of the valleys of the Great Basin (Fuller, 1994). The pioneer and territorial period, 1847-1896, was largely a period of building canals. By the 1860’s the immigrants had built 277 canals having a total length of 1,043 miles, irrigating an area of 115,000 acres (Israelsen, 1954).
In this early period of irrigation development, settlements were based upon cooperative construction of irrigation systems and common enclosure and pasturing of fields. Construction was focused upon self-sufficiency, building up the Mormon territorial economy, and establishing the earthly Kingdom of God (“Zion”) (Endter, 1987). It was this spirituality which kept them united and allowed them to hold community interest above private gain (Palmer, 1978). It also was the motivation behind giving full jurisdiction to the “church courts” or the all-Mormon legislature. When this territorial legislature was set up in 1851, they confirmed the system of public ownership of natural resources and the county courts were given broad powers of supervision over these resources. Probate judges who generally held positions within the church staffed these courts. Land and resources continued to be governed by Mormon Church officials in accordance with their theocratic and cooperative social and economic institutions (Endter, 1987).
In the early years only the low-lying lands near streams were irrigated and excavation of shallow ditches to convey water to land near the creeks or rivers was the common scene. Sometimes, small wooden flumes were used to divert the water over ravines. Simple check gates and turnouts of wooden construction were the principle makeup of the water control structures (Zierer, 1956).
During the incipient stages of this territorial period of irrigation development, streams had to be equitably divided among many inexperienced users. Control over a limited and strategic source of water gave a person power over the quantity and quality of water down stream. This was a problem, because at the time, there was no law in all America governing the use of irrigation water. When it came to litigation the old English Common Law of Riparian Rights, used in the east, governed the case. Riparian water rights were usufructuary as apposed to proprietary, which entitled a person to the full and undiminished flow and quality of water from that stream. Rights accrued to one who owned land on the bank of a stream and was held in common with all other landowners along that stream (Endter, 1987). The problem Mormon leaders had with this was that it dictated that title to land is inseparable from water running through that land and it did not take non-riparian land into consideration. So, along with the cooperative movement discussed above, which was based on the principle that water was public property, Mormon leaders proposed a new doctrine known as “Beneficial Use”. Under this doctrine they proposed that all water belongs to the people and no one can procure rights to more of it than they can make beneficial use of. In terms of water rights, beneficial use was declared to be “the basis, the measure, and the limit to those rights” (Palmer, 1978; Israelsen, 1954). A landowner had to divert water from a stream and put it to beneficial use continuously in an economic activity in order to claim and maintain water rights (Endter, 1987).
The Act of 1852 confirmed this cooperative ideology and territorial government. The basic principle of this act was that in order to obtain rights to use this public property, its owner, the public, must confirm that right. The county courts were given extensive powers to control water and they were to administer them in the interest of the public. The commonwealth oversaw every water claim and controversy (Endter, 1987).
This distinct form of irrigation law along with the state’s social and economic institutions continued until capitalism gradually seeped in and overtook it. Eventually Utah’s institutions had to conform to national customs of private property and market competition. Utah’s water laws, which initially treated water privileges as a community resource under the administration of the county courts, were changed in 1880 to private and competing rights. These rights were dependent on prior appropriation (Endter, 1987).
HISTORY OF CONFLICTS
There is a long history of conflicts over water resources in Utah between Ute Indians and Mormon farmers and ranchers. Control over water was lost as land was taken through forceful expropriation and through the encumbrance on Utes of a foreign political-economic system and ideology. As capitalism spread into the west, Indians in general were dispossessed and confined to reservations on land that was valueless and unsuitable for farming, while the control over valuable land, water and resources were transferred to private Anglo interests (Endter, 1987).
Throughout the 1850’s and 1860’s, armed conflicts between Utes and Mormons ensued as a result of Ute resistance of encroachment in their territory. In order to dissuade the Utes from raiding Mormon settlements, treaties were entered into. The Utes were promised food, clothes and protection if they accepted small reservation farms and learned to grow crops. Starvation and freezing decimated the Utes in Sanpete Valley in 1856 when provisions were not delivered. While fighting to maintain their traditional way of life, many Utes died from disease, starvation, frostbite, or warfare while the rest became destitute (Endter, 1987).
DOCTRINE OF PRIOR APPROPRIATION
“First in time, first in right”, or the doctrine of prior appropriation, evolved from disputes over water between gold miners in California after the discovery of gold in 1849. Because most of the gold mines were far from streams, making it necessary to divert the water, disputes over initial rights were common. The Mining Act of 1866 and its 1870 Amendment formally authorized the right of prior appropriation on public lands. Colorado was the first state to make prior appropriation the law of the land. The doctrine was written into the Colorado State Constitution in 1876. To this day the doctrine of prior appropriation remains the foundational doctrine of water law in the west. Under this doctrine, water rights are dependent upon beneficial use of the water, not on ownership of the land along the watercourse. Water cannot be privately owned but it can be diverted to riparian or non-riparian land and put to beneficial use (Kienast, 1996).
With the Law of 1880 the county court water legislation, enacted in 1852, was replaced to recognize private and competing rights to water. Under this law water belonged to no one and private appropriation would be how one would establish property rights to water, independent of land ownership. This essentially stripped the county courts of the power to grant rights to water and hear petitions (Endter, 1987). The requirement to petition the county court for permission to make an appropriation was no longer needed. Just as before, appropriation was dependent on diverting and putting the water to beneficial use, but without the terms, conditions and administrative constraints the county courts had been previously authorized to impose (Hutchins, 1965). In the ensuing years the principles of prior appropriation for beneficial and economic use of water were upheld in numerous court decisions. By the time Utah became a state in 1896 decisions such as these were legalized and codified. So, the unique features of its early irrigation law were eventually abandoned for a system of prior appropriation (Endter, 1987). The size and number of farms increased exponentially during these last two decades of the 19th century. After 1880 Utah’s agriculture changed from small self-sufficient farms to commercial production based on larger, more productive units. A second generation of canals was needed. They were generally situated up on the foothills, and were longer, deeper, and had larger carrying capacities (Fuller, 1994).
Unfortunately, the “use it or lose it” philosophy encouraged by the new laws led to increased competition and a frenzied scramble to use and claim rights before others did (Endter, 1987). It is interesting to note that prior to the Law of 1880, the principles of the doctrine of prior appropriation for beneficial use had already been the basis for acquiring water rights in Utah. It is also interesting to note that during this territorial period very few water disputes found their way into higher courts because the simplicity, directness and promptness the county courts, acting in the interest of the community welfare, proactively settled these disputes (Hutchins, 1965).
While the statute of 1880 took away the county courts broad powers of supervision over resources such as water, it did make the county selectmen of these courts official commissioners of the county. It gave them the authority to measure stream flow, determine all claims of right to the use of water, issue and record certificates of water rights, and to distribute the waters accordingly. Although the 1880 law recognized accrued rights to water acquired by appropriation, and provided for the recording of these rights, it did not contain a procedure for making new appropriations. The 1880 law remained in effect until the enactment of the Act of 1897, which established procedures for appropriating water and repealed all conflicting legislation (Hutchins, 1965). The first complete water appropriation statute was enacted in 1903, which repealed all pre-existing water right laws in effect. It was revised and reenacted in 1905 and in 1919 (Hutchins, 1965).
NEW ERA OF IRRIGATION
The turn of the century marked a new era of irrigation in the state. After the first national irrigation congress, held in Salt Lake City in 1891, and once Utah became active in this congress in the 1890’s, it was seen that Utah’s irrigation laws and management of water policies were outdated and needed replacing. Acting on this need, the state legislature established the office of state engineer whose responsibilities and authority for managing water resources were limited at first but were greatly expanded along with improving water legislation (Fuller, 1994). Along with the enactment of Utah’s first complete water appropriation statute in 1903, the office of state engineer was initially given the responsibility of collecting data and the measuring and controlling of streams. This office helped to improve the chaotic conditions that existed after the 1880 repeal of the laws of 1852.
Between 1900 and 1910 irrigated lands in Utah increased 132 percent, the largest increase in the history of the state. Old systems were expanded and new ones built in order to meet the needs of newly established farms. An extensive system was built on the Uintah Indian reservation following it’s opening to homesteaders in 1905 (Fuller, 1994).
With the passing of the Federal Reclamation Act in 1902, laws were adjusted even further to authorize water improvement and conservancy districts that would contract and guarantee repayment on reclamation projects with the federal government. After the passing of the Federal Reclamation Act the pace of water development in the west overall increased dramatically. It established the Reclamation Service (changed to the Bureau of Reclamation in 1924) and created a national policy which used water development as a way of increasing economic activity and populating the west (McCool, 1995). It would be safe to say that during this first decade of the 20th century the primary role of water development in Utah had been transferred to the federal government from local water users who were under the direction of the Mormon Church (Endter, 1987).
In 1922 the Colorado River Compact was signed by Colorado River Basin states, dividing the waters of this major River between the “upper” and “lower” basin states and Mexico and starting a new era of irrigation development in Utah (Fuller, 1994). This compact designated these two artificial basins and each was allotted 7.5 million acre-feet of water. (McCool, 1995) In 1948 the Upper Colorado Basin States signed the Upper Basin Compact which divided Colorado River water among these Upper Basin States of Wyoming, Colorado, Utah and New Mexico (Fuller, 1994). Utah was allotted 1.7 million acre-feet in this compact (McCool, 1995). These two compacts stimulated new reclamation and irrigation projects in Utah (Fuller, 1994).
As the Salt Lake valley grew to the point when it needed to expand it’s water supply beyond the ditches diverting water from Wasatch streams within city limits, there were numerous exchanges of water in the Jordan and Salt Lake City Canal’s for higher quality canyon water. Water from streams such as Parley’s Creek in 1888, Big and Little Cottonwood, and Mill Creek during the 1920’s were exchanged. These systems of canals and exchange agreements served the valley well until the late 20’s when water authorities began to look outside the valley for additional sources in order to address the needs of an expanding population. In 1935 Salt Lake City formed the Metropolitan Water District (Metro) to contract with the United States Bureau of Reclamation to build the Deer Creek Reservoir and related Facilities under the Provo River Project. Plans to expand this project to include Utah’s share of water in the Colorado River Basin would eventually mature to become the purpose of the Central Utah Project: get Utah’s share of Colorado River water over the Wasatch Mountains and into the Wasatch front.
The CUP or Central Utah Project has been the main focus of Utah’s water development policy since World War II. It was felt that the Deer Creek project would only temporarily solve the water problems of Salt Lake City along with it’s adjacent municipalities and the CUP would be the savior. It has dominated Utah’s congressional delegations policy agenda for the last five decades. The project was designated to utilize the rights and 1.7 million acre-feet of shares given to Utah in the Upper Colorado River Basin Compact of 1948. It was authorized as one of several projects in the Colorado River Storage Project Act of 1956 which was passed in order to utilize the Colorado River water rights of the “upper” and “lower” basin states. This project has two components that consist of the Bonneville Unit which would bring water from the Uinta Basin (part of the Colorado Basin) to the Great Basin (Salt Lake City and other Wasatch Front cities), and five other project units that serve local areas of the Uinta Basin. The Bonneville Unit is the largest, costliest and most controversial of the units. The original counties in the Central Utah Water Conservancy District (CUWCD) voted for the project by a 93% margin in 1965. This would allow the District to use property taxes and the water sales revenues to help repay the federal government. Ever since this early boom period the CUP’s history has been mired in a perpetual series of impediments to construction (specifically the Bonneville Unit) (McCool, 1995).
When the Reclamation Act of 1902 was passed it became obvious the federal government could not administer the enormous amount of projects it planned to build. They needed someone to turn the projects over to when they were done building them. So the act required the beneficiaries of these projects to form a water district or association. As it turned out these organizations became a huge political supporter of the young federal reclamation program. With the passage of the 1992 CUP Completion Act the CUWCD was authorized as the official builder of the project and an official entity of the government. Now they would be giving orders to the Bureau of Reclamation instead of the other way around.
There are dozens of special water districts in Utah and the three largest along the Wasatch Front are the CUWCD, the Salt Lake County Water Conservancy District, and the Metropolitan Water District of Salt Lake City. The CUWCD enjoys the majority of tax revenues. An interesting note is that these districts distribute half of all the water used in the West which gives them economic power. While they are quasi-governmental, they are in some cases, exempt from a lot of public accountability due to their autonomy and wield additional power through their huge lobbying organizations (McCool, 1995).
EVOLUTION OF THE MUTUAL IRRIGATION ENTERPRISE
The evolution of the mutual irrigation enterprise in Utah began with the simple, local, cooperative efforts that gained solidarity through the control of the Mormon Church. As the years went by laws were passed which would allow water users to organize irrigation companies and conduct their affairs like joint stock companies (Endter, 1987). The mutual irrigation company is a common form of irrigation enterprise in Utah. They are a non-profit organization and usually, but not necessarily, are incorporated. An irrigator owns stock usually in proportion to the size of their land and the expenses of operation and maintenance of the canal are paid from the assessments on the irrigators stock. Non-payment calls for a late fee and eventually if the assessment isn’t paid by a certain time the stock is advertised and sold, depriving the previous shareholder of the right to have water delivered (Israelsen, 1954). Under mutual companies, directors or water masters who are elected by and report to the shareholders, manage the facilities and also report problems to the general manager.
As discussed in the previous section, irrigation canals are also publicly owned. This usually consists of Water User Associations (WUA’s), that are contractually obligated to administer to and maintain canals owned by the Bureau of Reclamation. Water User Associations are non-profit, private, stockholder owned corporations, incorporated according to Utah State law. Understanding a WUA’s purpose and meaning can sometimes be difficult. A brief summary of how a WUA develops follows:
· Potential shareholders form a WUA in order to go into contract with the federal government for construction of a canal. This WUA is a non-profit corporation, incorporated according to Utah State Law (Business Corporate Act of Utah)
· The WUA purchases a right-of-way and property for the canal.
· The WUA petitions the Federal government to build the canal under the Federal Reclamation Act of 1902.
· The WUA enters into contract with the Bureau of Reclamation (BOR) for construction of the project in which the property is deeded to the federal government for the collateral needed to build the project. Therefore, the underlying title is now in the name of the U.S.A. Under this contract, the WUA must pay back the federal government for the cost of construction and they must administer to the canal on a regular basis in cooperation with the BOR, who performs general operation oversight.
· Once the construction costs are paid off and the contract is fulfilled, the title stays in the name of the United States.
The three basic forms of canal ownership/canal companies consist of:
· Private mutual stockholder companies owned by the shareholders. These companies can either own the underlying property in fee title or they can have easements for the use of the corridor. Examples include: Davis and Weber Counties Canal Company, North Ogden Irrigation Canal Company and WUA’s such as Ogden River Water Users Association.
· Water Conservancy Districts (WCD). These are special districts created under the Water Conservancy Code and are able to impose a general tax on all properties. Examples include: Weber Basin Water Conservancy District (administers to a BOR project) and Washington County Water Conservancy District (has no ties to BOR)
· Canal Companies that are created under the irrigation code of the Utah Code which are also Special Districts that are tax exempt political subdivisions of the state. These Special Districts have basically the same powers as cities. Examples include: South Ogden Conservation District and the Weber-Box Elder Conservation District.
(Some, but not all of the last two types of districts, have government contracted facilities they operate while paying for the project.)
Incorporated WUA’s should not be confused with organizations such as the Utah Water Users Association (UWUA) which is a coalition of various interests. The members of the UWUA consist of public and private entities (cities, counties, engineering and legal firms, private individuals, water conservancy districts, water user associations, etc.) from across the state that have an interest in water use of any type (agricultural, industrial, municipal, etc.) The purpose of this organized coalition is for sharing ideas, education, lobbying, etc.
IMPROVING WATER SYSTEMS
Today irrigators and urban residents are turning their attention to improving water systems. Irrigation canals are now serving and running through newly built residential developments in addition to farmland. While it is still common to see the open dirt ditch, canals and ditches are increasingly being lined with cement in order to conserve water and improve water conveyance. As will be discussed later in this report (specifically, question #7 of the interviews) other irrigators are also enclosing their canals within pipes for various reasons including increased conveyance capacities, water conservation, and ease of maintenance. This process can be very cost-prohibitive, which makes it an exclusive venture only taken on by larger companies with the resources to do so.
Canals operate differently today than they did historically. Even though the access roads they needed and used historically are still just as important today, the equipment used for maintenance, such as the hydro units and back-hoes used to dredge out debris, is much larger and requires much more space along the maintenance roads.
Pressurized sprinkler systems powered by gravity or motors are now widely used for agricultural purposes and have proven to be more efficient than the traditional method of flood irrigation. This type of pressurized system is also used for secondary purposes such as residential lawns and gardens. These systems are favored by farmers due to the ease and effectiveness of their use. Utah farmers are also developing new strains of crops that require less water in order to conserve the resource (Fuller, 1994).
Crop irrigation is not the sole use of canal water as it has been historically. Conversion of canal water into domestic water has become a common practice. As development encroached onto farmland these water rights have slowly been transferred to domestic or secondary purposes. According to Jonathan Clegg, assistant superintendent of Provo River Water Users Association, this conversion process occurs in one of three ways: The water is taken directly from the canal and disinfected in a water treatment plant for domestic use, the water is taken and used in a pressurized secondary system usually for residential lawns and gardens, or canal water can be traded with well or spring water which is generally of higher quality and requires little or no treatment. This trading process can either take the form of an application to the state engineer or it can simply be a mutual agreement between two parties (Jonathan Clegg, e-mail correspondence: 2-24-00). Water quality in open canals which are used for recreation is a concern for some canal companies. (See Chapters V and VI for further explanation of water quality concerns.)
HISTORICAL SIGNIFICANCE OF IRRIGATION CANALS
To write about the development of irrigation in Utah is to write the history of Utah. Hopefully this chapter’s brief summary will offer a little help in understanding why Utah is where it is today and give some direction for future planning.
Irrigation canals in Utah are significant not only because they are economic assets, efficiently transporting water to shareholders, but because they embody the visual character and cultural, religious and political history of Utah. The settlers water evolved into much more than just a resource, it became the lifeblood of community, a thread that held together the fabric of society. Out of necessity, the construction of irrigation canals was one of the first group efforts of the Mormon immigrants representing one of the first forms of community planning. With water flowing across a field of crops, the settlers made a future for themselves in an otherwise inhospitable setting (McCool, 1995).
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