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How Herbert approached water deal

Published April 10, 2013 4:45 pm

This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

I applaud Gov. Gary Herbert on following good process to make the decision not to sign the agreement to share groundwater under the Snake Valley with Nevada. Understand, I'm neither agreeing nor disagreeing with the decision itself. I'm suggesting that the way the governor went about making the decision epitomizes the core values of good public process.

Public decision-making is not easy. There are many differing interests to be balanced. In issues involving water and our environment, in particular, there is a virtual guarantee that someone will be unhappy with whatever decision the government makes.

So, how should a government official make these difficult decisions in a rational way? By gathering as much relevant information as possible, weighing the competing interests and values carefully, and then announcing the decision in a way that shows how everyone's views have been considered.

The International Association for Public Participation has outlined seven core values that help make better decisions. (IAP2 will be holding its 2013 North American conference in Salt Lake City in late September.) The first two core values are the most relevant here:

Public participation is based on the belief that those who are affected by a decision have a right to be involved in the decision-making process.

Public participation includes the promise that the public's contribution will influence the decision.

Many federal and state environmental laws incorporate these core values by providing opportunities for the government to hear all different perspectives before a decision is made. Permits to emit pollutants are subject to public notice and comment, and public hearings are often held between the draft and final permit stage. Major federal actions that may have environmental impacts go through an extensive environmental impact assessment, which also includes opportunities for public comment.

There were no mandatory public process requirements for the governor's decision whether to sign the Snake Valley agreement. More than 10 years of controversy surrounding the distribution of groundwater under the Snake Valley and extensive negotiations between Nevada and Utah about how to share that water preceded the proposed agreement that landed on the governor's desk.

Herbert could easily have signed the agreement without additional information and been within his legal rights. Instead, he told KPCW, he "left no stone unturned.

The governor hired legal experts to review the agreement. He consulted with water experts to learn more about the science and the uncertainties underlying the proposed agreement. He received many opinions (solicited and unsolicited) from a wide variety of places, including those for and against the agreement, conservation groups, local politicians and more. Herbert traveled to meet firsthand with the ranchers and landowners who would be the first to feel any impact if he signed the document.

Based on this extensive information gathering, the governor made a hard choice. Many are rejoicing over his decision; others are lamenting his refusal to sign the pact. I appreciate his expansive efforts to ask questions, listen to the answers and make a fully informed decision.

Also to his credit, the governor left the door open for continued dialogue and creative problem-solving about how we deal with our limited water supply future. That dialogue should in some way include all the voices who shared their views with the governor — not just the states of Nevada and Utah.

Michele Straube is director of the Environmental Dispute Resolution Program at the Wallace Stegner Center, S.J. Quinney College of Law, University of Utah.