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Legal fight is brewing in Utah over water rights on the Green River

Water from the Green River will be used for a planned commercial-scale oil shale mine and processing plant in the Uinta Basin.
Bob Wick
Bureau of Land Management
Water from the Green River will be used for a planned commercial-scale oil shale mine and processing plant in the Uinta Basin.

In Utah, a fight is brewing over water rights on the Green River, the chief tributary of the Colorado River. Some years ago, conservationist group Grand Canyon Trust filed a lawsuit challenging the Bureau of Land Management's agreement with energy company Enefit American Oil. The bureau approved new pipelines and transmission lines for the company. Grand Canyon Trust argued the construction violated the Environmental Policy Act and threatened endangered species. But since that lawsuit, attorneys have discovered something else that might be at stake - the fate of a water right impacting the Green River that represents 10 million gallons of water per day. Rocky Mountain Community Radio’s Justin Higginbottom speaks with one of those attorneys to break down the situation.

Justin Higginbottom: Enefit plans to build the nation's first commercial-scale oil shale mine and processing plant. It'll be in the Uinta Basin near the confluence of the Green and White rivers. That's upriver from Moab, that kind of mining takes a lot of water, something like four barrels of water for every barrel of oil.

Michael Toll: It's about 3.5 billion gallons of water per year. So really that's a huge amount of water that Enefit needs to mine and process oil shale. And they're planning on getting all of that water from a single water right.

JH: That's Michael Toll. He's an attorney at the conservation group Grand Canyon Trust. His organization has raised an administrative protest to who should have access to that water. In Utah, like other Western states, water rights must be put to what the state calls beneficial use, that's things like agriculture or ranching or mining. An applicant has 50 years to use the water or the right goes back to the public.

Michael Toll: As in Utah and other Western states, water is property of the public. It belongs to the public.

JH: The rule is meant to prevent speculation and hoarding. In 2013 Enefit was about to lose that water right. As they waited on BLM approvals for construction of their plant.

Michael Toll: What Enefit did was transfer this extraordinarily valuable water right to Deseret Power, which is the owner of the Bonanza coal-fired power plant up in the Uinta Basin, which is maybe 15 or so miles away from where Enefit plant to build its mine and plant.

JH: This was a smart move because there's an exception to that 50 year rule for wholesale electrical cooperatives like Deseret Power. Those companies plan decades into the future, and sometimes 50 years just isn't enough time. So they can apply for an extension, which is what Deseret Power did.

Michael Toll: And it did so by swearing that it needed that water to generate electricity, to satisfy the public's future power demand.

JH: But that's not what happened. According to administrative documents obtained by Grand Canyon Trust, Deseret Power transferred the water right back to Enefit for $10. Now, Enefit once again, has the water right and likely enough time to put it to use.

Michael Toll: So again, before Deseret Power swore that it needed the water to generate electricity, to meet the public's future power demand and got an extension of time from the division of water rights on that basis, it signed a contract with Enefit, entitling Enefit to the right to use all of that water for the next 30 plus years to mine and process oil.

JH: Toll says he doesn't have a contract between Deseret Power and Enefit. So he doesn't know what the power company got in return for transferring the water right. But it looks like Deseret Power helped Enefit avoid forfeiting access to a huge amount of water and back to Grand Canyon Trust lawsuit, taking that water could have downstream effects.

Michael Toll: Truly disastrous environmental public health impacts. In the midst of an unprecedented drought and in the country's second driest state, the deal between Deseret Power and Enefit is depriving Utahns of billions of gallons of water that should be available to the public.

JH: The Utah division of water rights will hold a hearing next Tuesday to decide who gets access to the nearly 10 million gallon per day water right on the green river.