SJ Quinney College of Law, University of Utah
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Abstract

“Speculation. Water monopoly. Land monopoly. . . . John Wesley Powell was pretty well convinced that those would be the fruits of a western land policy based on wishful thinking, willfulness, and lousy science.”186 PWR 107 was created to avoid water monopolization through land reservation. However, it would seem that management of public water reserves on federal lands has succumbed to some of John Wesley Powell’s concerns: management has been incomplete, ad hoc, and potentially based on incomplete hydrological data. PWR 107, as well as federal water reserves in general, pits western states against the BLM where there is a lack of comprehensive and clear reserves. As priorities for water uses on public lands shift, well-founded policy for resource allocation must include quantification and clarification of federally reserved waters. Public citizens will possibly leverage PWR 107 to challenge energy development where the BLM is otherwise complicit, especially as new technologies allow for extraction of resources previously inaccessible. Energy development companies will need to work more with federal and state water authorities as prior appropriation has already tied up most water resources in the West. These pressures will inevitably require federal courts to further define the scope and intentions of PWR 107. Utah faces additional uncertainty over federal reserved water rights claims involving Indian water reservations, national parks, and wilderness reserves. As these demands for water become more relevant and valuable, Utah and the federal government will need to define competing reservation priorities and legal duties. This will need to be done through clear policy definition, assertions of federal authority, comprehensive planning, and consideration of public interests and involvement. Should competing interests come to a head as they have in Nevada, the Utah public may be able to leverage PWR 107 to assert public interests in unclear water claims. This would require the judiciary to instead grapple with clarifying what water reservation purposes and duties are and could lead to further confusion. Western water rights were originally secured despite competing interests, priorities, and governments. While complete monopolies may have been avoided, and life in the desert has been supported, the next juncture in federal reserved water rights and PWR 107 claims will no doubt be momentous. The present circumstances in Utah provide a ripe environment for defining the next phase of PWR 107 legal authority—possibly recreating or changing what these water rights actually are.

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