Why Presidential exceptions?

May 28, 2020

Why does the Forest Service say that Presidential exceptions will be needed for a new Eightmile dam?

Before the Icicle-Peshastin Irrigation District can rebuild the dam at Eightmile Lake, the Forest Service has explained that it will require two special use permits and Presidential exceptions. (See May 23 news: "Eightmile dam needs federal approvals").

These requirements stem from the Wilderness Act, 16 U.S. Code sections 1131-36, which applies because Eightmile Lake is within the Alpine Lakes Wilderness.

Section 4(c) of this act prohibits "structures or installation" within the wilderness. This prohibition is "subject to existing private rights." In zoning terms such existing rights might be called non-conforming uses. The irrigation district's original dam, built before Congress created the Alpine Lakes Wilderness in 1976, represents such an "existing private right." The amount of water it was withdrawing from Eightmile Lake up until 1976 is also an existing private right.

So far as we know, the Forest Service has never weighed in on the dispute between environmentalists and the irrigation district over the latter's right to withdraw 800 acre-feet more water now than it ever has before. The irrigation district claims it has this right, based on the state water grant to its predecessor in the 1920s; environmentalists claim it has forfeited that right under state law through almost a century of non-use.

Avoiding that question, the Forest Service regards the irrigation district's "existing private rights" as the location of the dam and the level of Eightmile Lake in 1976 when the area became wilderness. Now that the irrigation district wants to extend the siphon outlet from a rebuilt dam and lower the lake below its 1976 level, the Forest Service views these as something more than the exercise of "existing" private rights. In short, it appears to base its view on physical conditions as of 1976, not unresolved disputes about water rights.

In view of the Wilderness Act prohibition on "structures or installation" that would appear to leave the irrigation district's proposal – pardon the pun – dead in the water. The act does not give the Forest Service authority to allow uses or activities that the statute forbids. It would be odd indeed if a federal agency could effectively amend or ignore a congressional act simply by issuing a special use permit.

But the Wilderness Act contains some exceptions. In zoning terms, these might be called variances. It allows the federal agency managing the wilderness to control fires and insects, allow temporary motorized access for administrative needs and access to in-holdings, and permit a few other uses or activities under strict conditions.

Here is where the U.S. President comes in. The secretaries of agriculture or interior, as applicable, may allow those activities mentioned above, but only the President may authorize certain water projects. Section 4(d)(4) provides in wilderness areas within national forests (such as the Alpine Lakes Wilderness), that the President may authorize certain water uses, including "the establishment and maintenance of reservoirs" upon his finding "that such use or uses in the specific area will better serve the interests of the United States and the people thereof than will its denial."

This is the only place in the Wilderness Act that specifically requires the President’s authorization for activities within a wilderness.

As the Forest Service has explained, only with its permits and this Presidential authorization will the irrigation district be allowed – at least as now planned -- to rebuild Eightmile dam.