Wilderness dams

HAMILTON - The owners of eight of 19 dams in the Selway-Bitterroot Wilderness say they have historical easements that give them the right to use mechanized equipment to maintain their dams.

While Bitterroot National Forest officials have acknowledged those easements, they say they're uncertain of the implications.

But wilderness advocates say the Forest Service should not allow uses prohibited by the Wilderness Act and more than two decades of policy and practice.

"They should define that easement right as narrowly as possible," said George Nickas, Wilderness Watch executive director.

Forest Service officials say they plan to meet with dam owners and hope to reach an agreement on what the easements mean over the coming months.

Dam owners said increasing requirements attached to their dam permits prompted them to begin looking into their historical rights.

Agency officials say dam owners have provided the Forest Service with historical maps and documents that show the dams existed before the federal government designated the surrounding land as national forest.

And they say the historical right might mean dam operators could use mechanized equipment such as chain saws more often in the wilderness under yet-to-be-specified conditions.

"There is going to be some change, but it is hard to articulate what that change is going to be," said Nan Christianson, Stevensville district ranger.

"There is a possibility it could change the way the dams are maintained," she said. "Our main responsibility is to manage the wilderness resource, but now we have to acknowledge this right."

The Wilderness Act of 1964 prohibits the use of any motorized or mechanized equipment or the landing of aircraft in the wilderness. The law allows a few exceptions and grandfathered existing wilderness airstrips.

The Forest Service has allowed the use of mechanized tools for some dam projects. Dam owners are also allowed to do emergency repairs with mechanized equipment if they can show the work is needed to protect public health and safety downstream.

In 1996, after completing an environmental assessment, the Forest Service allowed irrigators to reconstruct part of Bass Lake Dam with three large machines, including an 11-foot-wide Caterpillar that was taken up Bass Creek trail.

Canyon Creek irrigators used mechanized equipment in the late summer of 1996 to reconstruct and make emergency repairs to Canyon Lake Dam. And in 1998, a large excavator and front-end loader were flown into the wilderness to make emergency repairs at Tin Cup Dam, after the water district discovered a serious leak.

According to a Forest Service report on wilderness dams, it isn't clear what Congress meant when it wrote in the wilderness law that prohibitions against mechanized tools are "subject to existing private rights."

A House committee report in 1964 said that "uses not incompatible with wilderness preservation should be permitted in areas included within the wilderness system, but currently authorized uses that are incompatible with wilderness preservation should be phased out."

Christianson said she is confident an agreement can be worked out between the Forest Service and dam owners over the next few months.

"I think we'll be able to meet the most important needs of dam owners and meet our needs in terms of taking care of our wilderness," she said.

Forest officials hope to draft an operation and maintenance plan that would be applied to all the Selway-Bitterroot wilderness dams, with sections tailored to each dam.

Conversations are just beginning with dam owners, Christianson said.

"Part of that discussion will be what's appropriate as far as tools, and what type of repairs would require an environmental analysis."

One change dam owners and the Forest Service have agreed upon is that dam owners with historical easements will no longer have to apply for the special-use permit.

The permit authorizes water districts to operate a dam under specific conditions.

"A permit can be revoked," said Mike Wilson, resource coordinator f

or the Stevensville district. "An easement reflects a right. They have a right to occupy and the right to access that place."

The dams that now have a recognized historical easement right include Bass, Big Creek, Burnt Fork, Carlton, Canyon, Como, Mill and Wyant.

Dam owners unable to prove a historical easement can request another type of easement that the Forest Service recently has granted to several other wilderness dams.

Called the ditch bill easement, it is based on a 1986 federal law that allows the Forest Service to grant a more restrictive easement to owners of wilderness dams and reservoirs used for livestock and crop irrigation, said Gordon Schofield, Region 1 group leader for land uses.

The dam and reservoir must have been built prior to 1976, when the Federal Land Policy and Management Act was adopted, Schofield said.

Holders of a ditch bill easement won't have to apply for a special use permit, but they will have to comply with specific maintenance and operation conditions or the easement can be terminated, Schofield said.

Opinions differ on what rights go with each easement, Wilson said.

"Through discussions and possibly through the legal system we'll have to work that out," he said. "We're hoping to sit down at the table and come to agreement on what this all exactly means."

Brian Langton, board member of the Big Creek Irrigation District, said he has concerns the Forest Service will try to administer the historical easement like a special-use permit.

There are big differences between the two, he said, and he doesn't think any dam operation and maintenance plan drafted by the Forest Service should put all the wilderness dams under one umbrella.

"We're trying to preserve our historic water right," he said. "It's what keeps this valley green."

The district has supplied the Forest Service with documents that show Big Creek Dam's construction dates back to 1886.

Langton said increasing requirements attached to the special-use permit prompted water users to begin looking into their historical rights.

"The Forest Service began placing more liabilities on water users until it became so heavy we didn't want to deal with it," he said.

"We were becoming responsible for acts of God," he said.

Langton said water users want to be able to use chain saws to maintain their dam. And he contends the district has the law on its side.

"That's how it was maintained before the Wilderness Act," he said.

But for the last 17 years, the district has had to maintain Big Creek Dam with hand tools.

"That means an ax and cross-cut saw," Langton said. "Each year there are hundreds of pieces of material to dispose of, from thin poles to logs 3 feet in diameter."

Root wads weighing several hundred pounds have to be taken out of the channel.

"Some of the things just aren't reasonable," he said.

Langton said water districts have shown they can use mechanized equipment to maintain wilderness dams and not harm the wilderness value. And he argues more damage is done when work crews and horses stay at the dam site for long periods to do work with non-mechanized equipment.

But Wilderness Watch officials in Missoula say they fear the Forest Service is going to compromise the wilderness in their discussions with dam owners.

Ultimately, the courts will decide what the historical easement means and what uses should be allowed, said Nickas, of the wilderness group.

"You can recognize pre-existing rights, but also you must preserve the wilderness values," he said. "Just because you have an easement doesn't mean you have a right to do whatever you want."

Nickas said he is worried irrigators and the Forest Service will try to expand on "the narrow purpose of that easement."

"They are taking the easement that authorized a dam or a ditch and trying to expand it to include being able to take in mechanized equipment," he said.

Nickas criticized the Forest Service for working just with the irrigators on the issue and not allowing the public to participate in meetings.

He also has concerns irrigators

may attempt to establish access easements to provide water districts a road or trail to haul up heavy equipment into the wilderness.

That, he contends, would grant water users more than the "reasonable access" right provided for in the Wilderness Act.

"They were riding horses back then; they weren't driving bulldozers down that right of way," he said.

"If you have an in-holding in the wilderness, that doesn't mean you can build a road to it," he said.

Monday - 6/28/99

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