PRESTON — Owners of a Franklin County farm claim a local canal company engaged in “deceit and subterfuge” in its attempt to acquire their property for a planned environmental mitigation site part of a proposed dam project in the Oneida Narrows.

    The Ben Johnson Family Farm recently filed a motion to intervene and protest through a Salt Lake City law firm as part of the comment period for Twin Lakes Canal Company’s federal license application to build a dam on the Bear River about 15 miles northeast of Preston.

    The owners claim they have been left out of the licensing process and, because they would be directly affected by the dam being built, they deserve to be involved.

    “It is clear that no other party adequately represents the interests of BJF in the license application proceedings,” the motion said. “Had TLCC complied with (Federal Energy Regulatory Commission) regulations and notified BJF when TLCC began considering the BJF property for inclusion in its license application, BJF could have exercised a more meaningful role in the licensing process.”

Selling the family farm

    The farm is owned by Ralph Johnson, of Salt Lake City, Kent Johnson, of Las Vegas, and Jan Lawrence, of Santa Ana, Calif. They are the children of Ben Johnson, a farmer, real estate broker and lawyer from Preston, who passed away in 1996. The farm was filed as a limited liability company in 1994.

    The farm has a potential for geothermal energy development, and the owners claim it could generate more electricity than the TLCC dam project. They also claim the land does not hold a large enough combined water right, as the canal company says they do, to create a wetland for mitigation. The family says there is not enough water.

    There are also other potential mitigation sites closer than the family farm, which is located about 12 miles downstream of the Oneida Narrows. And the only unique feature compared with other sites is the geothermal potential, the owners claim.

    The motion also explains that TLCC intends to acquire the land using eminent domain, a power granted by the permits necessary to build the dam. The owners add that TLCC has been attempting to acquire their land since 2005. But it wasn’t until earlier this year that the farm was disclosed as the mitigation and recreation site required by law to replace what would be lost if the dam is built.

    The farm’s law firm sent a letter to the Federal Energy Regulatory Commission on April 22 explaining how TLCC has targeted the farm for years. The company failed to notify the farm of the mitigation plans until March 7, depriving the property owners of the ability to comment and participate in the licensing process and offer “timely comments on the true characteristics of the Johnson property.”

    TLCC stated in its May 30, 2013, six-month progress report that the mitigation effort has included consultation with stakeholders and field investigations. The farm’s law firm explained in its letter that no representatives of TLCC have been in contact with the farm and no field investigations occurred on the property, unless they were trespassing.

    The farm’s law firm also explained that the canal company sent a real estate broker to negotiate a letter or intent to purchase the property in 2013. But the broker did not explain who they were working for until December 2013, and asked for a list of all water rights on the property, a month after the licensing application with the mitigation plan listing the 20 cfs water right was already filed.

Mitigation

    In addition to TLCC’s application to build a dam at the mouth of the Narrows, the canal company is required to apply for and receive a 404 permit from the U.S. Army Corps of Engineers, per the Clean Water Act.

    The U.S. Army Corps of Engineers guidelines state that “all appropriate and practicable steps must first be taken to avoid and minimize impacts to aquatic resources.” Unavoidable impacts, like the reservoir that would be created by the dam, require TLCC to perform what’s called compensatory mitigation to replace the loss of wetland, stream and/or other aquatic functions.

    The canal company prepared a compensatory mitigation plan in its project proposal, including mention of a “538-acre conservation parcel on the Bear River” that will be part of mitigation efforts for wetland riparian habitat and recreation, later identified as the Ben Johnson Family Farm.

    The intention, according to TLCC’s proposal, is to use an existing water right to transform or enhance 353 acres of the Ben Johnson Family Farm for aquatic, wetland and riparian habitats, as well as install boat access for fishing, and build a hiking trail.

    The farm’s owners claim that TLCC’s proposal doesn’t comply with the U.S. Army Corps of Engineers’ and Environmental Protection Agency’s regulations for compensatory mitigation.

    The Army Corps took no stance on the issue in its December 2014 comments, though it did list issues that need to be addressed before a 404 permit could be granted. One is that the current mitigation plans are conceptual only at this point, and the area needs to be assessed.

    The other issue is that since it is near the Bear River Massacre Site, part of the farm could hold historical significance that would be exempted from mitigation.