It's time to move Utah's pioneer-era water law into 21st century, advisors say

Sunday , July 29, 2018 - 5:15 AM1 comment

To secure Great Salt Lake's future, some water users say it's time to let go of the past.

When Utah's water law was officially codified in 1903, Great Salt Lake was largely viewed as a waste because of its high salinity and lack of fish. Today, the lake represents a paradox in thinking about water in the West. Because water is a scarce and vital resource in the region, early non-native settlers put laws in place so no drop went to waste. As the region grew, our water use became so prolific that less and less made it to the lake, which sits at the bottom of a closed basin. That means Great Salt Lake is shrinking.

A year ago, the Governor’s Water Strategy Advisory Team released their Recommended State Water Strategy as Utah — the second driest state in the nation — grapples with a finite water supply, a changing climate and a growing population.

In 2018, it's coming to a head. 

“We need to really exercise the full range of thinking and tools that are available to us to deal responsibly with the future,” said Lynn de Freitas, director of FRIENDS of Great Salt Lake and member of the Water Strategy Advisory Team. “We should’ve been doing this a year ago.”

The Great Salt Lake now sits nearly a foot lower than it did last year, which means a lot for a waterbody that’s so shallow. Utah’s water is also over-appropriated. There’s more water granted on paper than available from wells and streams.

A warming, drying climate means the state’s future water supply will become more unpredictable.

The advisory team’s recommendation report heavily focuses on reexamining Utah's water law — policies as old as the original Mormon pioneers — and its struggle to keep pace with Utah's water demands today.

Story continues below photo.

In 2018, urban populations along the Wasatch Front are booming. The Great Salt Lake contributes an estimated $1.3 billion to the state economy through brine shrimp harvesting, mineral extraction and recreation. There is growing awareness of the public health crisis that looms from blowing lakebed dust if the lake continues to shrivel.

"It’s always been difficult with in-stream flows," said Steven Clyde, an attorney, farmer in the Provo River Basin and member of the Water Strategy Advisory Team. "You may say, 'Jeez we need to push water all the way to Great Salt Lake,' but you’ve got 100 irrigators in between."

A study published in Nature Geoscience last year found Utahns’ water consumption has lowered the Great Salt Lake by 11 feet and swallowed up half its volume.

RELATED: Salty lakes like Great Salt Lake are disappearing around the world

Part of the problem is prior appropriation law, sometimes summarized as "first in time, first in right." The first Anglo-American settlers of Great Salt Lake's river basins got first claim to water. During times of shortage, senior water right holders get to take their shares first. Junior water right holders take their shares based on when they staked their claim. What’s left flows to the lake at the end of the line. 

Story continues below photo.

"It was designed with a different set of needs in mind," said Tim Hawkes, a state representative and co-chair of the Water Strategy Advisory Team. "Prior appropriation can work to balance competing interests, but it’s awfully challenging. It’s like showing up to a card game when all the cards have been handed out."

In the days of the Utah pioneers, environmental interests weren't at the table. Neither were whitewater rafters or birdwatchers or anglers.

"It’s these new people bringing in different ideas, saying 'Hey, why can't we also be involved in some of this process?’" Clyde said. "It’s starting to get the dialogue going."

Farming remains one of the biggest stakeholders when it comes to stirring up Utah’s water policies. Agriculture still uses around 80 percent of Utah’s water supply.

Because agriculture was the state’s main industry when water was allocated for use, farmers hold most of the state’s senior water rights, too. Understandably, the state’s agriculture industry is leery of any major changes.

RELATEDPlans for Bear River water show connection between Bear Lake, Great Salt Lake

“In the past, I think they’ve been nervous and kind of suspicious that people are trying to take their water from them. Today people in agriculture generally understand there are a lot of competing demands for water,” Clyde said. “The farming community is becoming less resistant when they can see an economic benefit returning to them.”

Story continues below photo.

But even if old water right holders want to strike a deal with the new interests taking root, they face significant obstacles.

If a farmer on the Weber River, for example, decides not to use all her water with the hopes of benefiting the Great Salt Lake, junior water right holders downstream have the right to take that water for their own use. There’s no way to ensure water is “shepherded” all the way down. 

One solution floated by the Recommended State Water Strategy is “split-season leases.”

Farmers could use part of their water to grow an optimal hay crop during the early part of the summer, then “park their tractors” and lease their remaining water for the rest of the season, Clyde said. The state could compensate the farmers for lost income.

RELATEDWe're losing the Great Salt Lake; Here's why you should care

That extra water could also go into a water “bank,” where parties purchase leases for other interests, including water for the Great Salt Lake. 

“The state could be the one to do it or maybe the economic industries on the lake or the wildlife people. All of them would like to see more water there to stabilize the levels,” Clyde said. 

Story continues below photo.

With these temporary water transfers, farmers would see their traditional rights honored. They could potentially earn more revenue from a lease than if they grew a sub-par crop of hay in the late summer heat.

Water banks are already successfully used in several Western states, like Idaho and Arizona.

Still, the thought of stirring up the state’s water heritage remains unsettling for some. 

“I think the rights of those first people here have to be respected. I don’t think you can come and take away property and possessions of people just because you’re a new person and you want something different,” said Kent Jones, state engineer with the Utah Division of Water Rights.

RELATEDWhy is Utah's water so cheap?

Jones said he’d rather see small, thoughtful changes to the state’s existing code rather than disrupting an entrenched system. If environmental interests want more water for Great Salt Lake, they can secure it through the existing water market — by acquiring or purchasing existing water rights. 

Story continues below photo.

“You look at the amount of water the lake needs to sustain itself, that’s an incredible amount of water,” he said. “Can we, in the future, even find enough water to keep the lake where we think it ought to be? They should pass legislation to increase the rainfall.”

While Jones is open to proposals like water banking, he’s not sure they’re practical. Utah doesn’t have good places to store banked water — like reservoirs and aquifers — or ways to release it when and where it’s needed. 

But there’s another provision in Utah’s existing water law that could empower Jones’ division to secure water for environmental use.

“It’s called public benefit or ‘public welfare’ and it exists as part of prior appropriation water law,” de Freitas said. “It acknowledges the public value of the natural system and water needs of the natural system.” 

The concept of public welfare was used to secure water for Mono Lake in California, another Great Basin terminal lake that was dwindling from human water consumption. A successful lawsuit relying on public welfare doctrine required the city of Los Angeles to cut back on their water use to protect Mono Lake’s elevation.

RELATED: Great Salt Lake’s California sister shows lingering impacts of water use

Utah code already calls for the state engineer to deny water applications and changes if it harms the public welfare. There is, however, no solid definition of what “public welfare” means. 

Story continues below photo.

A year after they released their water recommendations, members of the Water Strategy Advisory Team said 2018 could see enough momentum to push through needed changes to Utah’s aging water law.

“One place you don’t want to be is dealing with it too late,” Hawkes said. 

The interest and desire to protect Great Salt Lake is growing among lawmakers, he added. But it will take public investment, too.

“I would watch the water banking discussion. I’m not sure if a bill will be ripe for the next (legislative) session, but it could be,” Hawkes said. “We will also continue to see bills on secondary metering, which is something everyone knows we need but haven’t figured out the best way to pay for yet.”

 Changing deeplyrooted water laws will not be easy, de Freitas said, but neither was settling and greening the West. 

“We always refer to pioneer spirit. Well, here it is ... I think it’s time to make some forward strides,” she said. “This is really important for Utahns and Utah’s future. And of course, Great Salt Lake, too.”

Contact Reporter Leia Larsen at 801-625-4289 or [email protected] Follow her on Facebook.com/LeiaInTheField or on Twitter @LeiaLarsen

Sign up for e-mail news updates.

×