This story is part of the Salt Lake Tribune’s ongoing commitment to identifying solutions to Utah’s biggest challenges through the work of the Innovation Lab.
This article was published through The Great Salt Lake Collaborative: A Solutions Journalism Initiative, an initiative of journalism, education, and media organizations to educate readers about the Great Salt Lake.
[Subscribe to our newsletter here]
Those were two words from Lynn de Freitas, executive director of the Friends of the Great Salt Lake, when asked about a bill being brought to the governor’s desk that would give the Great Salt Lake urban and other natural land to obtain water rights.
Sovereign lands cannot have water rights, as Utah law now states, because no one entity can govern them. When the water law was originally enacted, the Great Salt Lake “was not considered a beneficial use,” De Freitas explained.
“The lake was not on the negotiating table when the water law was being developed,” de Freitas said. “Mainly ranchers and farmers, landowners and industry.”
HB33, sponsored by R-Brigham City Rep. Joel Ferry, will expand the definition of beneficial use and who can apply for and hold Hanoi water rights.
If the Governor signs HB33, the Utah Department of Forestry, Fire and State Lands (FFSL) will have the opportunity to purchase water leases and water rights (when they become available) to bring water to the Great Salt Lake and keep it there.
FFSL will not be the only entity in the state that is allowed to manage rights to traffic within the stream. HB33 expands the market for holders of water rights and Hanoi flows to basically anyone, as long as they meet the criteria.
It wasn’t until about 14 years ago that Utah lawmakers passed an ordinance that allowed the Department of Wildlife Resources (DWR) and the Department of State Parks (DSP) to keep water flowing downstream to protect small fisheries. In this case, farmers are allowed to rent their water to maintain schools of fish of both species, but they are rarely used.
Last month, Ferry stood in front of the Utah State Capitol and confidently told his colleagues that HB33 would be “one of the most important water legislation we’ll see during our time at the Capitol.”
Lawmakers appeared to take note of the bill’s importance, as it received two “no” votes in the House and unanimously in the Senate. Rep. Steven Lund, R-Manti, and Rep. Merrill Nelson, R-Granstville, both voted against the bill, but neither responded to requests for comment.
Beneficial change for beneficial use
Emily Lewis, a Utah water attorney and adjunct professor at the University of Utah School of Law, fully agreed with Ferry, calling HB33 “a very positive legal change.”
The biggest change the bill offers is a change to the “use or lose” rules for water rights holders. Under current water laws, those with rights or shares are forced to use all the water allotted to them each year, or risk exporting it to the state.
However, HB33 offers water owners a third option: renting out unused water, rather than wasting it or confiscating it to the state, creating an “innovative way we allow water rights holders to have additional options to use their water,” Ferry said.
Ferry explained the bill using the example of a wheat farmer. If wheat farmers know it’s going to be a dry year, trying to harvest the crop could take a financial toll. Instead, the farmer can lease the water he uses to grow his wheat to Great Salt Lake City or other buyers for up to 10 years. This way, farmers can maintain autonomy and can decide to keep water in the river without losing their rights and making money.
“As farmers and ranchers, we are merchants at our core, and our water rights are an asset,” Ferry, a full-time farmer, told the House. “We want to make informed decisions with our water. This allows me to have a more diverse portfolio and I can use my water for the highest and best use based on my decisions.”
Laura Vernon, FFSL’s Great Salt Lake City coordinator, believes the incentive to rent out unused water is a plus.
“If our upstream users don’t use their water, they shouldn’t be penalized,” Vernon said. “Instead, they should be motivated to let the water flow into the lake.”
How to protect water
Getting the right to Utah’s most important dwindling resource isn’t easy.
Utah lawmakers allocated $40 million to the Great Salt Lake Trust during the 2022 legislative session. The trust will be managed by various stakeholders with the aim of bringing water to the Great Salt Lake, including purchasing water leases and the right to keep water flowing in streams to help fill the lake.
Water rights are often expensive and subject to an extensive application process. Because the act is in effect under the current water appropriation structure, applications for flows within the river will receive existing water rights, not new water rights, as new water rights pools are largely non-existent, Lewis said.
Once the in-stream application is submitted, the real work begins. Before a streaming app can be approved, it must pass a series of tests.
Water lawyer Lewis said flow change applications in rivers must be associated with three favorable conditions of use:
1. Breeding or maintenance of wildlife management.
2. Management of State Parks.
3. Reasonable protection or improvement of the natural aquatic environment.
The in-stream flow applicant must then go through a public hearing where people can object to the change application, the state engineer will determine whether the application change would harm existing water rights holders, and the application must receive final approval from the state engineer with the DSP, DWR or FFSL negotiation.
In total, it takes about three to four months for applications to be approved, Lewis said, but requests for changes to in-stream flows “depend a lot on understanding the conditions within a particular flow range.”
Lewis wants to see the change application slide past her desk the moment the bill is signed.
“Now some of the more restrictive elements have been removed,” she said, “I think you’re going to see a lot of people trying to apply for these change applications to support existing agreements that have struggled to find a foundation, or to facilitate new ones. Activity.”
Is this enough to save the Great Salt Lake?
The most concise answer is no. However, Lewis admits this is a big problem in keeping the lagoon afloat.
“This law alone won’t save the Great Salt Lake, but it’s a very important step in the right direction, as it provides a legal way to introduce water into the lake,” Lewis noted.
Without HB33, Great Salt Lake City would have to find an alternative solution to bring water to the declining state of the same name. Lewis said the bill also opens the door to tackling other climate-driven issues, especially as water levels remain low across the state.
“Water will be required for environmental purposes, and this bill provides a legal avenue to do so,” Lewis stressed. “This is our opportunity to get water to the areas that need it.”
It is important to note that taking water to the Great Salt Lake via the Hanoi flow relies on the holder to lease out their existing water rights. As water becomes a scarce resource, it hangs in the balance if holders are willing to give up their rights.
“I hope people start knocking on our door [to give us their water right],” said FFSL’s Vernon. “But given the drought conditions and the level of concern from upstream farmers, I’m not sure that will happen this year. Maybe in a wet year. “
Also, it’s unclear how much water HB33 will actually save. Ferry pointed out that the purpose of the bill is not to conserve water. This is to give water rights holders the option to do so.
Rather, the bill is a “tool to facilitate dialogue,” Ferry said. “It’s the key to unlocking conservation practices,” removing the threat of people losing their water rights if they don’t use all their water every year.
“We’re going to be able,” Ferry said, “to start offsetting and reversing the effects we’ve seen from the Great Salt Lake drought.”
Still, Vernon hopes water rights holders will be able to take advantage of HB33.
“We will be ready to implement the plan,” she said, “and can hold those rights.”