What would George Washington say if some special interest could set up a new government entity, supported by only 5 percent of the people affected, that had the right to tax citizens and damage the environment?
What if its incorporation was never put to a vote?The founding fathers had a slogan for that: No taxation without representation!
But exactly that situation is a fact of life under the unfair Utah water law. It stacks the cards in favor of anyone wishing to establish a water conservancy district. A new coalition of environmentalists and people concerned about good government is fighting against long odds, because of the legal inequality, in an effort to thwart an ill-advised series of dams proposed for the Bear River.
Remarkably, the coalition is claiming success.
The Barrens and Avon dams have been proposed for Cache County, and the Honeyville Dam for Box Elder County. They are supposed to store about 360,000 acre-feet of water.
The Bear River Water Conservancy District, which serves Box Elder County, would get an allocation of 95,000 acre-feet of water yearly for its dam. The Cache Water Conservancy District - not yet created - would get the same volume.
Other water would be divided among the Bear River Migratory Bird Refuge, Salt Lake County Water Conservancy District and Weber Basin Water Conservancy District. Another 10,000 acre-feet would be reserved for additional developments on the upper Bear River.
The series of projects would be enormously expensive, probably costing more than $100 million. Obviously, the key to the whole structure is creating the Cache district.
According to state law, a new water conservancy district can be established by filing a petition signed by "not fewer than 20 percent of the owners of land outside the limits of any incorporated city or town and . . . not fewer than 5 percent of the owners of land within the limits." The taxable value of each petitioner's land must be at least $10,000.
But a petition protesting the creation of a district must be signed by at least 20 percent of the landowners outside cities of towns who have not signed the petition in favor of creating the district - and by "not fewer than 20 percent of landowners within the limits . . . who have not signed the petition for creating the district."
There's a substantial difference between 5 percent and 20 percent.
While those favoring a district must own property worth $10,000 each, opponents must hold 20 percent of the total taxable value of the land in the district. Thus it is at least four times as hard to successfully oppose a district as it is to set one up.
On Oct. 10, the petition to establish the district was filed with First District Court for Cache County, Logan. According to Pam Blackham, court clerk, it has around 2,500 to 3,000 signatures - they haven't been officially counted yet. People for Wise Water Planning filed a petition on Nov. 16 opposing creation of the district. Blackham said its signatures total 6,042.
Judge Gordon Low has scheduled a hearing on the controversy for Dec. 18.
Whether the district is incorporated depends entirely on the petitions and the judge's ruling. There will be no election on the subject. The district can build dams, fix rates for sale of water, get water rights, acquire land through condemnation, sell hydropower and "levy and collect taxes."
Tax can be up to a rate of .0001 per dollar of taxable property in the district before construction of the project, and up to twice that once construction starts.
Yet for property owners not contacted by one petition drive or the other, establishing the district literally amounts to taxation without representation.
"It never comes to a vote," Alice Lindahl, of Logan, who is treasurer of People for Wise Water Planning, said. "In other states we have voting for this, but not in Utah."
Only a small fraction of the members of the group are environmentalists, she said. For them, "their main concern is that dams are (to be) built where they don't need to be built."
Others involved in the anti-district drive are members of the League of Women Voters, tax protesters, and engineers who are experts in water planning.
One of the main problems that Low will have to consider is there seem to be "hundreds" who signed both petitions, Lindahl said. Some may not have thoroughly understood what they were asked to sign.
That gets to one deficiency of the system. If important decisions are based on signatures instead of a fair election, mistakes are certain to occur.
If the opposing petitioners don't play by the same rules, abuses are inevitable.
Another built-in bias is that only property owners are allowed to participate in the decision at all. Yet the most critical property involved - public wetlands that might be drained, water that could be sucked from streams to the detriment of wildlife - the animals and fish themselves - belong to the citizens without regard to wealth.
In this case, Lindahl believes the anti-district forces have won - that the proponents weren't able to get 5 percent of the Logan property owners. If so, it is a remarkable revolution.
She says this will be the first time for the state that anyone prevented the formation of a water conservancy district. "We see that in the future they won't be able to form districts as easily as they have in the past, because people are now aware of what they are and how unfair they are," she said.
Utah water law should be reformed in light of two principles: this is supposed to be a democracy, and the natural environment is worth protecting.