When federal land is sold, impacts are local

A few thoughts on the local consequences of federal land policy.

Sen. Mike Lee (R-Utah)’s bid to open 250+ million acres of public land failed to make it into the budget bill earlier this week after bipartisan opposition.

As Jonathan Thompson over at the Land Desk reports, it does not mean the effort has completely vanished. For his part, Lee announced he’d remove all Forest Service land from his plan, and he’d limit the Bureau and Land Management parcels that could go up for sale to within five miles of population centers.

It’s easy to see how Lee and others might claim this as a compromise when in fact there are still serious consequences of opening up so many parcels to private interests in what would likely amount to a fire-sale. With the new proposal, the points I made about water last week still apply.

Putting 250+ million acres up for sale was an astounding proposal for its sheer size. But focusing on the acreage number alone can obscure the ways in which land sales historically play out on the local level. Land and water policy are both place-based in their nature, intertwined with each other by law and by physical connection. They are tethered to geography. And as cliche as it sounds, the devil is in the details.

The wholesale privatization of vast swaths of public land is not something the U.S. has really seen since the Gilded Age. If history is a guide though, the real enduring impacts often occur on small and specific portions of what’s being offered, after the sale occurs.

A New York Times story explored this in the case of Summit County, Colorado, which purchased Forest Service land for $1.75 million in 2016.

The purchase turned out to be the easy part, even if it took an act of Congress. Ever since, the county has been trying unsuccessfully to build as many as 800 affordable units on the land, near the Dillon Reservoir and the snowy peaks of the Gore Range.

Concerns about wildfires, road congestion and the addition of water and sewer systems have stymied progress. The land still could one day have duplexes, apartments, a senior-living center and a day care facility, but a few local officials question whether the project will get done in their lifetime.

Focusing on the local is not to diminish the serious consequences of the wholesale privatization of public land — the kind floated in Lee’s original proposal. When public land is made private, there is often far less transparency and scrutiny of what happens and the impacts of projects. It is simply to say a focus on the acreage numbers alone can mask the material local impacts of land sales.

A thirsty mine that disrupts the flow of groundwater and dries up critical springs. A new development — even a “freedom city” — in a place where water is stretched too thin. A wildcat oil and gas operation whose only purpose is to scam investors in what was a public recreation area. Often the conflicts that arise from new development are among neighbors working to share scare resources.

In theory, state and federal permitting agencies (however flawed) try to prevent such conflicts from happening by considering local input when development is proposed, permitted and approved on public land. Here, as an aside, it is worth noting that development is already allowed, encouraged and even incentivized, in many cases, on public land. The government typically weighs development against the public interest and values articulated through the laws that govern these lands — a role that would likely be diminished when land is transferred to private hands.

As Lee’s proposal shrinks, it’s all the more important to think about the local and specific impacts. Opening up acreage is one thing, but developing a specific parcel is where the fallout most often arises.

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A historical note on public land sales and water

Earlier this year, I was working on a research paper about the nexus of federal land and water policy before the 1902 Reclamation Act. I’ll be writing more about it, but I wanted to share a little bit since it highlights the tie between water and land use.

The most well-known of these early land policies is the 1862 Homestead Act, passed during the Civil War. It granted U.S. citizens the ability to claim and live on 160 acres of public land. Less well-known is the Desert Land Act of 1877, which attempted to tailor homesteading to some of the most arid parts of the West. It granted up to 640 acres of public land if those who “entered” the land and agreed to irrigate it. Basically the federal government said: We will give you the land if you get the water. Even back at the time, the Desert Land Act was decried as a way for corporate interests to grab land, sometimes through fraud (see the above example in California’s Central Valley).

The effects of selling this federal land still linger today, and turning public arid land into private parcels continues to have serious implications for how water is managed.

The Homestead Act was repealed through the Federal Land Policy and Management Act of 1976. The Desert Land Act of 1877 stayed on the books, and in many places, it created a mechanism for privatizing public land at the cost of water security, despite investigations into fraud and warnings from states themselves.

In 1959, the Nevada legislature urged Congress to repeal the law, warning “a great many of the land entries… are ill-advised with respect to quality of soils, limited ground waters, economic location and other factors basic to success and are later abandoned.” Politics ultimately triumphed here, as U.S. senators, including from Nevada, championed the law and business interests saw opportunities for new land.

But politics could not overcome the problem that, in many places, there was not going to be enough water to go around to irrigate all this new land. In many places, entries failed. In other places, irrigating this new desert land contributed to overuse.

The law was written in 1877, in a context before groundwater pumping was a feasible alternative to surface water. But politicians applied it to groundwater in the mid-20th Century. It contributed to a boom in groundwater pumping, with direct consequences for not only the environmental health of rivers but also other users who already relied on the water source. When aquifers are over-pumped, the consequences cascade out in space and time. A history of the Snake River from 2004 puts the boom this way:

The 1877 Desert Land Act envisaged individual farmers capitalizing their own irrigation works. This proved an impossible task on the desert above the river, the capital required to bring water to any but riparian lands being well beyond the capability of individual farmers. Ironically, by the 1960s the same act proved very successful in southern Idaho, when advances in pump technology made it possible for a family of four to claim a full section of desert, providing water by means of a high-lift pump, no canal, dam, or diversion required. Groundwater irrigation rose from 100,000 acres in 1950 to 700,000 acres by 1965 and 1.1 million acres by 1980.

There’s a lot more to say about it, and I welcome any thoughts. But to me, it is yet another example of how water policy and land use are connected in so many ways.

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Clearing out my tabs, inbox, etc…

From the Nevada Current: State orders lithium mine to stop unauthorized water pumping, citing rancher dispute — “The Nevada Division of Water Resources, which manages public waters in the state, said Lithium Nevada continued using the well despite being notified in April that their water permits were no longer valid.”

A new paper on the Colorado River and water markets in Nature Sustainability: “A strategic environmental water rights market for Colorado River reallocation”

A breakthrough in Colorado River negotiations? Maybe. KUNC’s Alex Hager on a potential framework for the Colorado River that considers climate change:

There’s a break in the clouds that have hovered over Colorado River negotiations for more than a year. State water leaders appear to be coalescing behind a new proposal for sharing the river after talks were stuck in a deadlock for more than a year.

…Instead of those states leaning on old rules that don’t account for climate change, they’re proposing a new system that divides the river based on how much water is in it today.

…The new plan says the amount should be based on a three-year rolling average of the “natural flows” in the river — basically, how much water would flow through it if human dams and diversion weren’t in the way.

• One thought here: The Colorado River negotiations are worth keeping an eye on given the river’s scale as a critical watershed in the Southwest. But given how the high-profile national nature of the negotiations and how closely the Colorado is watched across the West, what happens in these talks could serve as a model for other basins. “If they did it there, then…”

From the San Francisco Chronicle: California groundwater levels see another bump — but long-term trend still grim. Despite the gains, Gov. Gavin Newsom said the state needed to build new infrastructure, using the report as a pitch for the controversial Delta Conveyance Project.

A new paper from Communications Earth & Environment looks at wildfire and water quality: “Overall, this analysis provides strong evidence of multi-year water quality degradation following wildfires in the western United States and highlights the influence of basin and wildfire features. These insights may aid water managers in preparation efforts, increasing resilience of water systems to wildfire impacts.