The Endangered Species Act has attracted considerable attention lately, both nationally as it is being considered for re-authorization by Congress, and locally as the Desert Tortoise and the Utah Ground Hog have been pitted against economic development in Southern Utah. Last month, another endangered species made headlines along the Wasatch Front ant this one directly affects the water community. A single "June Sucker," a listed endangered species of fish, was found dead in the Provo River. The June Sucker generally inhabits Utah Lake but migrates up the Provo River in the spring. An investigation into the cause of death is ongoing but it appears to have been caused by low flows in the river.

The US Fish and Wildlife Service has been actively working to protect against any additional deaths of the June Sucker caused by low flows by working with the Bureau of Reclamation and the Central Utah Water Conservancy District to increase flows during the season that the June Sucker is in the Provo River. Fortunately, these increased flows are not needed during the hot summer months when irrigation needs are heavy.

Long term efforts to protect the June Sucker are also focusing on federally funded activities. These include using resources available under Title 3 of the Central Utah Project Completion Act and Title 8 of the Colorado River Storage Project Act for purchasing water rights in the Provo River from voluntary sellers, purchasing storage rights in upstream reservoirs for controlled release when needed, and installation of flow measuring devices at crucial points.

The US Fish and Wildlife Service recognizes the property rights water users have in valid water rights and is therefore trying to resolve this problem without infringing upon those property rights. However, the US Fish and Wildlife Service has pointed out that water users cannot exercise these rights in a manner that violates federal law. I.e., it is illegal to divert water if it causes the death of endangered species and a diverter could be prosecuted for doing so. On the other hand, courts have held that if the federal government prevents the enjoyment of a property right, there has been a regulatory "taking" under the Tucker Act for which the government must compensate the property owner.

This situation needs to be carefully monitored as it develops because of the key role the Provo River plays in Utah's water network and the precedent that the resolution of this conflict may set. It is obvious that cooperative and voluntary efforts to resolve this problem are in the best interest of all parties and it is good to see the federal government proceeding that way at the present time.

(Input from readers is welcome. If you have a comment or question concerning this or other topics, please contact the author at Smith Hartvigsen, 60 East South Temple, Suite 1150, Salt Lake City, Utah 84111 or by telephone at (801) 413-1600.)

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