Capitol Reef Administrative History

CHAPTER 13:
WATER RIGHTS AND WATER QUALITY AT CAPITOL REEF

In the Waterpocket Fold country, water is never taken for granted. With only three perennial streams cutting through this rugged uplift, there are relatively few precious acres of arable land that can support long-term occupancy. It is, then, not surprising that the primary need of all residents, from the earliest ranchers and settlers to modern National Park Service managers, has been sustaining water rights and quality. In Fruita and elsewhere in the Waterpocket Fold country, water was used according to the Western tradition of prior appropriation. This tradition gives preference to those who make the first claims and who use their water for beneficial purposes, such as growing crops. For the first settlers, cooperative irrigation was made possible by common culture and goals. When the National Park Service arrived in the area, its representatives had to learn to strike a delicate balance between neighborly cooperation and asserting the agency's own claims to acquired priority water rights. For the most part, the National Park Service has been successful in maintaining such a balance.

The rights to use the lower Fremont River were first decreed in 1935, just prior to the creation of the national monument. Those 1935-decreed water rights, in keeping with Utah tradition, established the amount of water to be used by Fruita residents and later by the National Park Service. The National Park Service acquired its first small percentage of Fruita's water when it purchased the Alma Chesnut property in 1943. From that time until the acquisition of other Fruita inholdings in the 1960s and 1970s, only a few notable water disputes occurred.

Once the National Park Service controlled most of Fruita's water, the next step was to assert priority rights against a variety of threats. A proposed dam east of the monument, upstream attempts to divert Sulphur Creek water, and ongoing water rights adjudication kept managers busy throughout the 1960s. Also during this period, a water treatment plant began providing Fruita residents with its first reliable culinary water supply.

The 1970s brought downstream attempts to impound the Fremont River for a proposed power plant. The decade also saw substantial improvements to Fruita's irrigation system and, once again, problems with unauthorized uses of Sulphur Creek.

In the 1980s, an adjudication of water rights was initiated by the State of Utah (Civil No. 435). This adjudication, which is ongoing, includes that portion of Capitol Reef National Park lying within the Fremont River corridor. The decade ended with a new dam proposal, this project to be located upstream near Torrey. The 1990s began with efforts to improve the park's culinary water supply by digging a well upstream of the water treatment plant, and with renewed threats to the quality and integrity of the Fremont River through the park.

Meanwhile, research continues on available water rights and quality for the rest of Capitol Reef National Park, and on documentation of tinajas in the southern Waterpocket Fold.

Doctrine of Prior Use Comes to Utah

During the 19th century, the industrial revolution in the East and the mining and irrigation frontiers throughout the West combined to change American water law from traditional English riparian rights to one of prior appropriation. Under the old riparian system, those who used a river's water had to own property next to the river and return whatever water was used. Water diversions for a textile mill, mining sluice box, or an irrigated field were not permissible under traditional riparian law. By the mid-1800s, however, there were growing needs in the U.S. to divert water in manners and for purposes that would reduce the river's flow. Lack of regulation raised the possibility that any upstream user could dam or divert an entire river, thereby depriving all downstream claimants of water. [1]

In order to establish more practical rules of water use, a series of state laws and court cases institutionalized the Doctrine of Prior Appropriation throughout the West. According to this new doctrine, the right to use a river's water was based on the earliest claims, thus the saying "first in time, first in right." It also stipulated that the water taken had to be of beneficial use. Since it was not beneficial for one claimant to take all the water when he needed only a small amount, a river's water was usually apportioned according to minimum use requirements. Western states' water laws were therefore a combination of priority claims and decreed rights based on need. [2]

During the Mormon settlement of Utah, the Doctrine of Prior Appropriation was combined with cooperative irrigation projects. In the first years of the Salt Lake settlement, ditches and canals were dug to divert water for culinary and irrigation purposes. Economic historian Lenard Arrington explains:

When a group of families found themselves in need of water (or additional water) to irrigate their farms and gardens, the bishop arranged for a survey and organized the men into a construction crew. Each man was required to furnish labor in proportion to the amount of land he had to water. Upon completion of the project the water would be distributed by a ward watermaster in proportion to his labor. The labor necessary to keep the canal in good repair was handled in the same way. [3]

When Utah became a territory and, in 1894, a state, this system of water rights and usage was confirmed by the state legislature and administered by the county courts. Based on their traditional importance, the cooperative water companies that largely determine water usage throughout the state continue to be recognized by Utah. [4]

By the time the first settlers of the Waterpocket Fold country arrived, however, the grasp of church authority had been loosened by time and distance. This new wave of settlers, while still staunchly Mormon, sometimes had to cooperatively build, use, and repair irrigation ditches without the guidance of a ward bishop. Even when a bishop was in control, he usually worked in one isolated settlement. Long distances between these settlements meant that a river such as the Fremont could easily be over-appropriated. Thus, sooner or later, the county court would have to adjudicate priority and minimum use claims. Before this could be done, however, each of the river's users had to be able to verify their oldest and greatest use. [5]

Early Water Users of the Waterpocket Fold

The first permanent settlement in what is now Capitol Reef National Park was built on Pleasant Creek. In April 1883, Ephraim Hanks and his family settled on land now occupied by the remnants of the Sleeping Rainbow Ranch, and soon began to divert water for crops and an orchard. [6]

Fruita was the next area in the park to use irrigation. According to final homestead affidavits, Nels Johnson was the first to build a house, in 1886, near the junction of the Fremont River and Sulphur Creek. He moved to his property the next year and in 1888 began cultivating about 17 of his 160 acres, seven of which were in orchards. [7] Leo R. Holt settled in the Fruita area around 1892-93. The other two original Fruita homesteaders, Elijah Cutler Behunin and his son, Hyrum, arrived in 1893 and 1895, respectively. [8] By the time the first official survey mapped the Fruita area in 1895, there was one noticeable canal, which evidently served the Sorensen and Johnson farms on the south side of the Fremont River and one large field or orchard straddling Sulphur Creek. [9]

By the turn of the century there was a well-established system of ditches and canals throughout Fruita, no doubt built and maintained by all who used them. The draft 1993 Fruita Cultural Landscape Report states:

In order to supply the necessary flow, the main intake was located along the Fremont River, approximately two miles from its confluence with Sulphur Creek. From this point, open ditches and flumes were constructed to carry water along the east face of Johnson Mesa, to the estimated 80 acres of irrigated lands. Gates controlled flow into the fields. The fields themselves were watered by furrow irrigation. In this system, water was carried from the main ditch to a series of laterals along the edges of the fields, and finally into furrows which channeled water through the fields in shallow ditches, spaced between rows of fruit trees, virtually flooding the land. [10]

Throughout the early years when land was sold in Fruita or at Pleasant Creek, the customary, though unspecified, share of water for agricultural or culinary use was attached to the deed. The share was transferred with the deed under the mutual consent of the other users. This was so because state law was derived from the traditional Mormon position that land and water rights were inseparable, and also because without the water to make it arable, the land was only pretty scenery. [11] Yet, water allocation and ditch repair responsibilities must have been confusing at times. After all, there was a fairly rapid turnover of property owners, a large percentage of renters or tenants, and the fact that not everyone lived full-time in Fruita. [12]

1935 Bates Decree and 1937 Tanner Report

From the turn of the century to the early 1930s, small, cooperative irrigation systems like Fruita's could be found all along the Fremont River. Yet, while there was apparent agreement within each settlement as to who deserved water, there was no such understanding among communities. This problem became particularly acute during the severe droughts of the 1930s, when the Fremont River was often reduced to a muddy trickle before reaching the lowest downstream users. In a 1935 effort to gain a guaranteed share of the lower Fremont River, the Hanksville Irrigation Company filed suit in Wayne County against upriver users. [13]

On July 15, 1935, Judge Nephi J. Bates of Utah's Sixth District Court for Wayne County decreed the water rights to the lower Fremont River. Seven residents of Fruita, Clarence Mulford, Dewey Gifford, William Chesnut, Alma Chesnut, Merin Smith, M. V. (Tine) Oyler and Dan Adams, were granted eight cubic feet per second (c.f.s.) of water from the Fremont River and its tributaries. The Fruita water was classified by Judge Bates as part of the total 56.09 c.f.s. of primary rights. This meant that Fruita's irrigation water was guaranteed due to priority claims and demonstrated beneficial use. Also given priority rights were the Hanksville Canal Company and the Caineville Irrigation Company. On the other hand, the Torrey Irrigation Company was judged to have only a secondary right to its 35 c.f.s. of irrigation water. This meant that the Torrey users could divert water only after all other downstream users, including Fruita, had taken their shares. [14]

Besides the specific water allocations, Bates also decreed that each party named in the case was to construct state engineer-approved weirs to keep accurate accounting. He wrote:

[All parties] thereafter shall maintain and keep all dams, headgates, flumes, canals, and other means by which said waters are diverted, conveyed, or used, together with said weirs, in a good state of repair, to the end that no unnecessary leakage shall be occur, and that the waters shall be economically applied to the user for which they are awarded. [15]

In other words, irrigation water was to be used for irrigation, and the diversion canals and ditches were to be maintained to prevent undue waste or risk the possible forfeiture of one's water rights. Judge Bates also stipulated that a water commissioner would be hired to monitor each weir and the use by each customer on the lower Fremont River. [16] Over the next decade, the various property owners in Fruita finished the legal deeding of water shares among themselves and thus finalized, for the time being, who was entitled to how much water. [17]

The Bates Decree was the foundation on which all later water rights disputes and allocations of decreed water were based. It should be pointed out, however, that this case dealt only with the Fremont River between Torrey and Hanksville. The use of Sulphur, Pleasant, Sand, and Deep Creeks, which flow into the Fremont within or east of the Waterpocket Fold, was not specifically addressed in this court case. [18]

Freeman Tanner was hired as the second part-time water commissioner in June 1937. It is in his report covering the period of June 10 to July 10, 1937, that the specific breakdown of Fruita's 8 c.f.s. water rights is found. Based on a percentage of irrigable acres, Clarence Mulford was decreed 1.77 cubic feet per second from the lower Fremont River to water; Dewey Gifford, 1.10; William Chesnut, 1.38; Alma Chesnut, .66; Merin Smith, 1.28; Tine Oyler, 1.37; and Arvil Mott, .44 c.f.s. While the total acreage listed for all of Fruita was 181 acres, the precise amount of irrigated acreage was not listed. [19]

The most frustrating part of the job for Tanner was that few adequate measuring weirs could be found. According to the water commissioner, frequent floods had made it uneconomical to invest in expensive weirs, since whatever was built was usually washed away in the next flood. Used instead were crude diversion dams made of rock and brush, which allowed the water to wash under or through the weirs and which made accurate readings impossible. Tanner, however, did note that new weirs were distributed and should be in place by 1938. [20]

But all of the lower Fremont River's assigned users had a more immediate problem. While the amount of water allocated to the various primary and secondary users was usually adequate but for a few short periods in June and July, there was not enough water for Torrey's secondary rights or even for other parties downstream. A table in the Tanner Report shows water flow in the Fremont River through Fruita was only 19.07 c.f.s. on June 24, but through the rest of the summer it was recorded at 31.8 to 33.6 c.f.s. This is far less than the 59.09 c.f.s. decreed by Judge Bates. [21]

Thus, at the same time that Capitol Reef National Monument was being created by President Franklin Roosevelt's proclamation on August 2, 1937, the water rights to the future headquarters area were finally apportioned and controlled. However, the problem of too many users and unreliable monitoring continued.

The Search for Springs and Seeps: 1938-1941

Because the private inholders at Fruita controlled all water rights to the Fremont River and Sulphur Creek, the first efforts by the National Park Service were aimed toward developing other water sources, such as springs or a well. This search for potable water became particularly important when a Civilian Conservation Corps side camp was established below Chimney Rock just west of Fruita in 1938.

In June 1938, National Park Service Engineer Sam D. Hendricks visited Capitol Reef at the request of Zion National Park Superintendent Preston P. Patraw, to search for a "palatable" water supply for domestic use. Of the two springs Hendricks found, the one nearest the planned ranger station (located on a ledge above Sulphur Creek) was nothing more than a slow seep of questionable quality. The Hickman Bridge spring (also called Whiskey and Cove Spring), on the other hand, was promising. According to Hendricks, if a better collection system was used, the sweet-tasting water could easily be piped downhill to Fruita. While this supply was small, it was at least a start. [22]

Later that same year, Leon S. Stanley, the foreman for the CCC crew, found a fairly reliable spring "about 700 feet north of the ranger station and about 25 feet lower in elevation." Stanley urged that this spring be immediately "developed and filed on." [23] However, the National Park Service took no action on either Hendricks's or Stanley's finds. Instead, the only water source developed during the CCC period at Capitol Reef were some small springs "one quarter mile north west of the camp." Water was collected and piped to a 2,300-gallon iron storage tank for use by the camp until it was abandoned in 1942. [24]

Alma Chesnut Water Rights Acquired: 1941-1943

Since the details of the first purchase of Fruita land by the National Park Service have been discussed elsewhere in this administrative history (Chapter 5), only the information pertinent to water rights will be addressed here.

As Zion National Park Superintendent Paul R. Franke stated, the purchase of Alma Chesnut property would "provide the only water owned by the National Park Service in this national monument and [would] meet water requirements for a modest development of this area for both culinary and irrigation uses." [25]

When negotiations between the Chesnuts and the National Park Service began in April 1941, Chesnut claimed to have rights to .79 c.f.s. of Fremont River water instead of the .66 granted in the 1935 Bates Decree. This was based on Chesnut's belief that he acquired an additional .13 c.f.s. when he purchased a small tract of land from Tine Oyler after the decree was issued. Another uncertain issue was how many of his eight acres of orchard land were in the southeast quarter of Section 14, which had washed away in the flood of 1938. If this land was lost because the river changed course or because it could no longer be irrigated, the amount of water granted to Chesnut -- or its potential new owner, the National Park Service -- could be reduced. [26]

According to Chesnut's tax records compiled by the National Park Service, the land was irrigated by "a ditch about a mile long, unlined, with a capacity in the upper portion of 3 second feet." The records continued, "It includes an 8" pipe flume across Sulphur Creek which cost about $200 of which Mr. Chesnut paid $96. Four individuals have interests in the ditch above the flume, and three below. Due to duplication in this count, there are actually five individuals with interest in the ditch." [27]

This ditch brought irrigation water to 225 peach trees, 15 apple trees, several apricot trees, and some grapes and berries. Unfortunately, the date of the tax record providing this information is unknown. [28]

Throughout the rest of 1941 and most of 1942, final sale of the Chesnut property was delayed by National Park Service efforts to sort out the tangle of property descriptions pertaining to Fruita. In October 1942, the lead investigator, Hydraulic Engineer A. van V. Dunn, submitted a final "Analytical History of Land Title" for the entire section in which the Alma Chesnut land was located. According to Dunn, Chesnut had a minimum of 14.87 acres under irrigation as of the 1935 Bates Decree, or .13-acre less than references in the decree. Yet, Dunn was positive that further research would only increase the acreage and that an estimated three acres lost to the shifting river channel should also be included. Thus, Dunn observed, "The declaration of taking of .66 second feet seems to be the minimum to which Alma Chesnut is entitled. The burden of proof seems to fall on his neighbors if they care to contest it." [29]

The neighbors did not contest the .66 c.f.s., based on the quit claim deeds filed with the Wayne County Recorder during September 1942. [30] In the final Judgment on Declaration of Taking dated July 23, 1942, 66 acres and .66 primary water and all ditch rights were acquired from Alma Chesnut by the National Park Service for $1,800. [31]

The Chesnut land and water rights were officially accepted by the U.S. government on March 2, 1944. The problem now was finding a way of preserving these water rights until development money became available. That job fell to Capitol Reef National Monument's new volunteer custodian, Charles Kelly.

The Kelly Years: 1933-1959

One of the main reasons Charles Kelly was encouraged to move into the old Chesnut house in May 1943 was to see that the the soon-to-be-acquired water rights would be maintained. This was also the reason why, a year later, he was appointed monument custodian. [32] As an incentive to continue past irrigation practices (and thereby maintain water rights to the property), Kelly was allowed to keep any income he could generate by raising and selling fruit on the Chesnut place. The first year alone, he brought in a hefty $500 in fruit sales. So it seemed that maintaining the ditches and irrigating the orchard was not only in the interest of the National Park Service, but that gave Kelly some personal incentive as well. [33]

At first, Kelly seemed willing to try to improve the irrigation system. In early 1944, Kelly asked his superiors at Zion National Park for some salvage wood to rebuild an old flume, attached to a cliff directly above the river, leading to the eastern parcel of land. The flume had been destroyed the previous year by a flood that washed away a considerable portion of the Chesnut orchard, and left the remaining trees without irrigation water. [34] In 1946, Kelly made a second request to start work on the new flume and other ditch work, which would be funded as a rehabilitation project. There is no evidence however, that his project was ever initiated. The only visible remains of this flume in the 1990s are the steel pipes jutting out above the river from a sandstone cliff opposite Krueger Orchard. [35]

In 1949, Hydraulic Engineer A. van V. Dunn requested an update on Capitol Reef's water situation. In his reply, Charles Kelly made it clear that there was little monitoring of or control over Fruita's irrigation ditches. Nevertheless, he reported, there were no conflicts with other owners simply because everyone got as much water as he needed. Kelly wrote that "the water used has never been measured to any of the ranches here." Kelly had by this time given up on building a new flume and irrigating the eastern tract of land, which was now "badly washed by floods and...heavily overgrown with brush in most places." Nevertheless, the custodian noted that he was diligently using as much irrigation water as possible on the residence property "at all times, and the runoff waters [had made] a sort of small jungle which provides cover for large numbers of birds." [36]

In forwarding this report to Dunn, Zion Superintendent Charles J. Smith opposed funding to rebuild the washed out flume because the park service had "nothing in particular there to irrigate." Instead, Smith wanted to investigate the possibility of teaming with new Fruita property owners Dean Brimhall and Owen Davis to bring water to the ranger station. Since its construction by the CCC, this ranger station, located on a small bluff west of Fruita, had been without water. Smith believed that, since Brimhall and Davis had spent a great deal of money and time improving the main ditch along Johnson Mesa, it would now be beneficial to "put [park service] water in their ditch and pump it out onto the ground to make proper use of it."

He argued, "By sharing in the cost of maintenance of the ditch, [the park service] could get water on the area." The park service, Kelly wrote, needed a campground or a picnic area in that vicinity, and a locale near the ranger cabin would be suitable. [37]

Before this plan could be furthered, however, the harmonious cooperation described by Kelly only a year before had suddenly turned acrimonious. A rapid turnover in ownership and tenants in Fruita had resulted in such a lack of cooperation that needed ditch repairs were now totally ignored. According to Kelly, those using the ditches believed that "since the government has an interest in the water, the government [should] have to maintain the ditch and furnish water free to all other users." [38]

Kelly went on to vent his frustrations at the willingness of people to wait for the National Park Service to take care of the ditches:

As a result the government property has not received its share of water for at least two years. This year it has not received sufficient [water] to keep the trees alive, and many are dying. When I repair the ditch and turn in water, all users above take it out before it reaches me. There is not and never has been any regulation whatever, and each user helps himself whenever there is water in the ditch, regardless of others; with the natural result that all the users hate each other for 'stealing water.' This condition is completely intolerable and must be remedied or the government water rights will be endangered. [39]

Capitol Reef's acting superintendent attempted to solve this problem by calling a meeting of all 11 Fruita water users and having them appoint a water master from among themselves to "apportion water turns." According to Kelly, who had acted only as a fellow user and not as a National Park Service employee, few of those present were willing to do anything. He concluded, "As expected, the meeting ended in a brawl." Kelly therefore asked his superiors to assist him in resolving this impasse. [40]

The infighting between Fruita neighbors as reported by Kelly negates the assumption that everyone was working in harmony toward cooperative irrigation. These problems may have been exaggerated by Kelly's frustration over his neighbors' failure to do as he asked. On the other hand, the rapid turnover in Fruita occupants at the end of World War II most likely played a key role in failing to get Kelly's ditch repaired. The traditional residents of Fruita were being replaced by new and often absentee owners, as well as changing tenants, who were not as dedicated to cooperative irrigation as earlier residents.

Kelly's letter sent the National Park Service wheels in motion. A short investigation concluded that the best solution was to follow Superintendent Smith's earlier recommendation and continue efforts to re-channel National Park Service water rights toward future development sites near the dry ranger station area. Redirecting the National Park Service water would achieve three results: water would be piped to where it would one day be needed the most; the animosities between Kelly and his neighbors would be avoided; and there would be added insurance that no portion of the .66 c.f.s. water rights acquired by the National Park Service could be lost. [41]

The need to protect Capitol Reef National Monument's existing water rights was a primary focus in 1950. In the mid-1940s, Kelly had repeatedly been denied funding to rebuild a washed out flume that had once irrigated fruit trees on the former Chesnut parcels 3 and 4. [42] The amount of Chesnut acreage lost in this and subsequent floods was later calculated to be as much as 11.23 acres, which would leave only 3.77 acres to irrigate in the vicinity of the superintendent's house. Since adjudicated water rights that are not continuously used may be subject to forfeiture, and since Kelly couldn't use the park's full portion on less than four acres, the National Park Service was faced with the possibility of losing a portion of its water rights. [43]

The immediate solution was to file for a water rights extension for the maximum five years while National Park Service officials decided how to proceed. This was done in either late 1950 or early 1951. There is no record that neighboring water users contested this step. [44]

Over the next few years, various proposals were submitted. These included building an elaborate campground on public land next to the ranger station; purchasing other land in Fruita (most likely, some of Dean Brimhall's land opposite the ranger station); and pumping the required amount water out of the river onto barren ground. There was also the question of whether an existing irrigation ditch to the Brimhall property could be used, or whether an entire new ditch would have to be constructed above all others. Superintendent Kelly advocated a simpler approach: dig a well next to the ranger station and get all the needed culinary and irrigation water without having to tap into the Fremont River. [45]

Since the well seemed the cheapest approach, this became the selected option. Throughout the mid and late 1950s, the Mission 66 planning documents frequently refer to drilling a "deep artesian well" near the ranger station to supply all culinary needs. It was anticipated that the irrigation water would continue to come from the Fremont River. [46] However, the well was never constructed. Another private well was proposed by new Fruita land owner Max Lewis, who had purchased the Owen Davis property in 1956 and planned to build a large house on top of Johnson Mesa. Lewis, and his plans, died only a few months later. [47]

There is no conclusive record that anything had changed regarding Capitol Reef's water rights by the end of the 1950s. After 1952, there is no known documentation referring to the possibility that a portion of the National Park Service share of Fruita's water could be lost. Likewise, there is no known correspondence referring to well tests or water diversions near the ranger station or Sulphur Creek campground. Finally, if a compromise solution was ever worked out between Kelly and his Fruita neighbors, documentation of such an agreement has not bee located.

If more detailed information is needed, the records may be found either in the Utah State Engineer's files or National Park Service files in the National Archives - Rocky Mountain Region, located in Denver, Colorado.