The Water Tap: Controversy complicates the Cove Reservoir

This article is part of a series addressing topics relevant to water security in southwestern Utah. Look for stories online on select Fridays and in print on select Saturdays that feature updates on ongoing water issues, interviews with experts and explorations of how we can ensure a better water future for our growing communities.

For decades, while climate change and drought chipped away at the flow of southern Utah's Virgin River, the Kane County Water Conservancy District has been chipping away at plans to build a reservoir off the river's East Fork above Zion National Park that would serve alfalfa farmers downstream who have had to cut their growing seasons short time and again because their irrigation supply dried up.

Then, in the eleventh hour of the project's environmental review process, at the changing of the guard to a Biden administration expected to have a different philosophy about such projects and in the midst of the longest drought to ever plague the southwestern United States, the entire conceptualization of the reservoir's purpose and need came under attack.

It started last Tuesday, when seven regional environmental groups banded together to release their analysis of the area to be served by the reservoir's water, and to allege that the entire thing was a scam intended to rob more worthy projects of federal funds marked for agriculture. They reached this conclusion by sending volunteer foot soldiers out to places marked on the proposed Cove Reservoir map as being the alfalfa fields the project would irrigate and finding, instead, subdivisions and bulldozers and schools and even the beginnings of a new religious temple for the Latter Day Saints.

These environmental sleuths also used satellite imagery and digital spatial analysis tools to mark developed patches within areas the project maps label as agricultural and subtract them from the total acreage project proponents claim adds up to "approximately 1,110 acres of irrigated cropland in Kane County and 4,958 acres in Washington County."

“This map shows there’s only 2,100 acres of agricultural land in Washington County. So that’s already a problem," said Zach Frankel, Executive Director of the Utah Rivers Council, a nonprofit based in Salt Lake City that advocates for the environmental health of the state's waterways. "Then when you go out there, a lot of what looks like pasture or open land has actually already been developed. When you take all that out you get down to closer to 800 acres of land that is still agricultural."

Catch up on the controversy:Environmental groups unite against reservoir proposed for Washington, Kane counties

With only 800 acres out of 4,900 (16%) actually being agricultural, Frankel says the project falls short of the requirement that 20% of the benefit be for agricultural purposes in order for the project to warrant substantial financial backing from the Watershed Protection and Flood Prevention Program (PL 83-566), a branch of the United States Department of Agriculture's Natural Resources Conservation Service. The NRCS aims to "authorize funding and technical assistance to construct projects that will address water conservation, aquatic species habitat, public safety, and other eligible concerns supporting existing agricultural land use."

Currently, following an analysis of the project purpose by the NRCS itself, the project is earmarked to receive $22 million in funding from this program out of an estimated total $30 million cost. This, says Frankel, amounts to a "false characterization of the likely use of the proposed reservoir and, by extension, the use of precious federal funding during this pandemic economy." He added that it seems doubtful the land that is still agricultural in this region will remain so for much longer given the local pace of development and population growth.

Furthermore, Frankel says, some of the land counted towards the agricultural benefit in Kane County is actually upstream of the planned reservoir site and, without any pumping plans included in the project as of yet, it seems unlikely that those farmers will get their share of the federal benefits. In Tuesday's letter calling for the USDA Inspector General to investigate the project proposal, he brought the ethical conduct of the NRCS staff involved into question, called oversight of the project a "failure" and accused the Kane and Washington County water districts of breaking federal laws by "cloaking the true purpose of the Cove Reservoir municipal water project in the sheep’s clothing of an agricultural project."

More:Two County water managers view proposed Cove Reservoir as beneficial to both

Which numbers matter

But, it turns out this whole thing has something to do with how you do math.

According to Norm Evenstad, the assistant state conservationist for water resources with the NRCS, the acreage the project serves doesn't have to add up to 20% of the total land it was mapped to serve if at least 20% of the economic benefits of the project will still be for agriculture.

“It isn’t totally based on acres. It’s agricultural benefits," Evenstad explained. “The program is set up to provide assistance to a whole host of constituents. With ag, we have to be able to show that there’s 20% of agriculture-type benefits of the project. The economics is a large component of our analysis."

If you ask former Utah lawmaker Mike Noel, who now serves as the Executive Director of the Kane County Water Conservancy District, the number in question is 100% — as in 100% of the water released from the reservoir will go towards irrigating agricultural fields belonging to alfalfa farmers in Washington and Kane Counties that have been stiffed on their water rights for far too long.

“This project 100% meets the requirements of the Act," Noel said. "The water from this project will absolutely 100% go for agricultural uses. If you go drive that area you’ll see there’s still a lot of acreage in production still in the Washington Fields area. You only need about 800 acres to justify the amount of water that we’re storing in that reservoir. It’s totally 100% appropriate."

But then there are the benefits the project documents claim will arise from recreational opportunities created by the construction of a reservoir, serving the Kane County communities of Orderville, Glendale and Mt. Carmel that the Environmental Assessment describes as "in difficult socioeconomic situations and seeking new economic stimulus opportunities." It's not clear how those factor in to the calculated 20% or 100%.

On the drought:The Water Tap: More reports forecast lower water levels for Lake Powell, Colorado River

There's also the matter of the fish. Water managers in both counties have lauded the benefits the reservoir will have for endangered fish species in the Virgin River that, they say, will thrive amid higher summer flows resulting from metered releases from the Cove Reservoir. With the federal budget for promoting the recovery of listed species in 2020 at $95 million, it would seem such advantages must factor somehow into the calculation of the project's economic benefits.

Some environmental activists, however, have calculated the economic benefit of the reservoir for fish at $0, saying that the reproductive biology of these endangered fish species will actually not benefit at all from potentially higher summer flows if that means the water has to be diverted from the river earlier in the year.

Meanwhile, the man actually tasked with facilitating the recovery of these fish species and the health of the Virgin River ecosystem says there is not yet sufficient data to support either claim and that it's even possible that reducing winter flows in order to fill the reservoir could harm fish by causing them to become colder and less active and be pulled from preferred, sheltered habitats under rocks.

“I’d like to see an analysis because I don’t believe there was one, at least nothing to back up the claim of benefitting the fish," said Steve Meismer, the Local Coordinator for the Virgin River Program. “It’s really a hard thing to say whether it will hurt or won’t hurt or will benefit one way or the other. It’s certainly a long way to take water from Orderville down to where the species are."

According to Zach Renstrom, General Manager of the Washington County Water Conservancy District, a collaborating partner on the Cove Reservoir project, none of these fine-scale calculations really matter anyway because his understanding of the stipulations of the NRCS funding is that it is acceptable for the water from the reservoir to be converted from agricultural use to municipal and industrial uses in the future as long as the proposed project has clear agricultural benefits now.

“There’s no question that some of that area has changed and it’s probably justified to change that map in the EA," Renstrom said. "But there’s still a lot of agricultural land in the Washington Fields area and those farmers hope that their kids will take over and continue farming."

As far as the federal funding allowing for flexibility in varied future uses for the reservoir water, Norm Evenstad of the NRCS is in agreement with the water districts at this point.

He broke the news to The Spectrum & Daily News this week that the agency had decided to go ahead and conduct a broader Environmental Impact Statement in response to requests for this action received as part of the public comment process. This step will delay the reservoir project, but he does not expect their findings to halt it.

More:Proposed Cove Reservoir project to be delayed for preparation of an Environmental Impact Statement

“Bottom line, we encourage all lands to stay in agriculture. That’s really what we’re trying to do is keep farmers farming and ranchers ranching. But they are the decision makers, not us," said Evenstad. "The Kane County Water Conservancy District has looked at things for twenty years so they have a pretty good feel for what can be realistic and still serve the purpose and need. They have this water that they have the right to use."

Environmental groups celebrated the decision to conduct an EIS and chalked it up to their spatial analysis of agricultural lands and their letter calling for an investigation into the project purpose and need, with the Great Basin Water Network tweeting the news with the comment "This is why you demand accountability and transparency."

But it remains unclear how this will all shake out or which "side" may benefit more from the pursuit of an Environmental Impact Statement. Evenstad said that this move opens up the project, already federally approved at a base level by a 1996 agreement between state agencies and Zion National Park allowing for the construction of a reservoir of approximately this size in approximately this area, to possible expansion.

"I think everything is on the table at this point," Evenstad said. “With an EIS, we do a more in-depth analysis of the costs and the benefits too, not just to agriculture but to the whole community and the region as a whole."

Potential court battle

After the EIS is complete, which may take around a year by Kane County's Mike Noel's estimate, then the interpretation of what constitutes a 20% benefit to agriculture may fall to the courts, according to Pat Parenteau, a professor at the Vermont Law School.

"That’s an interesting question that only a court could settle. Not necessarily a matter of land versus water," Parenteau explained in an email. "It will require a plaintiff with standing to challenge the project under the Administrative Procedure Act. The plaintiff will have to prove that the project does not qualify for the federal money."

More:The Water Tap: The complicated picture of southwestern Utah's tenuous water future

Noel, however, thinks that all of this has more to do with other pots of money and he's ready to sling some accusations of his own. He believes that Frankel and the other environmental leaders that issued the letter calling for his project's finances to be investigated are really seeking to boost their own non-profit fundraising efforts by drumming up false charges against water managers. Noel also thinks this is just another chess move in long-standing attempts by environmental groups to stop growth by interrupting progress and casting doubt on the motivations for the multi-billion-dollar Lake Powel Pipeline project, which they say is unnecessary and will drain the already-stressed Colorado River.

"What this is is a lack of understanding on Zach [Frankel]’s part about agriculture," Noel said. "He pulls in all these issues to create a firestorm, but in reality, there is no firestorm. Nothing has been done that’s not above board and in line with the law."

As with many aspects of western water wars, there are no clear answers at this time, though the urgency for solutions grows day by dusty day. At this point, it seems that the vibrant and tangled controversy over southwest Utah's Cove Reservoir will drag on at least another year — all, presumably, so that a handful of farmers can continue growing a crop that many conservationists say is water-inefficient and should be abandoned in the west anyway. But that is a topic for another day.

Joan Meiners is an Environment Reporter for The Spectrum & Daily News through the Report for America initiative by The Ground Truth Project. Support her work by donating to these non-profit programs today. Follow Joan on Twitter at @beecycles or email her at jmeiners@thespectrum.com.