The Great Salt Lake seen on February 15. A bill passed by the Utah legislature makes it easier for water to flow into the lake, but it’s not a panacea. (Scott G Winterton, Desert News)
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This article was published through the Great Salt Lake Collaborative, a solution journalism initiative that works with news, education, and media organizations to help people understand the plight of the Great Salt Lake.
Salt Lake City – “Finally.”
Lynn de Freitas, executive director of the Friends of the Great Salt Lake, was asked about a bill to be brought to the governor’s desk that would give natural lands such as Great Salt Lake City access to water rights. Two words say so.
Sovereign lands cannot have water rights, as Utah law now states, because no one entity can govern them. De Freitas explained that when the water law was originally enacted, the Great Salt Lake was “not considered a beneficial use.”
“Lakes were not on the table when water laws were created,” de Freitas said. “It was mostly 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 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.
And the department won’t be the only entity in the state allowed to manage in-stream traffic rights. HB33 expands the market for holders of water rights and Hanoi flows to basically anyone, as long as they meet the criteria.
About 14 years ago, Utah lawmakers passed an ordinance that allows the Department of Wildlife Resources and the Department of State Parks to keep water flowing downstream to protect a handful of fisheries, where previous water laws did not allow any diverted water to remain in streams. 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 unanimous passage in the Senate. Rep. Steven Lund, R-Manti, and Rep. Merrill Nelson, R-Grantville, both voted against the bill, but neither responded to requests for comment.
Beneficial Variation of 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 instead of 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 businessmen 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.”
For Laura Vernon, the Great Salt Lake coordinator for the Utah Department of Forestry, Fire and State Lands, 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 get the water to 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:
- Breeding or maintenance of wildlife management.
- Management of state parks.
- 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 engineers and the Division of State Parks, In consultation with the Department of Wildlife Resources or the Utah Department of Forestry, Fire Protection and State Lands.
In total, it takes about three to four months to approve applications, but changes to applications for in-stream flows are “largely dependent on understanding the conditions within a particular flow range,” Lewis said.
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 because it provides a legal way to bring 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 addressing other climate-driven issues, especially as water levels remain low across the state.
“Water will be needed for environmental purposes, and this bill provides a legal avenue to do so,” Lewis emphasized. “This is our opportunity to get water to 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 want people to start knocking on our doors (give us their water),” Vernon said. “But given the drought conditions and the level of concern from upstream farmers, I’m not sure that will happen this year. Maybe during the rainy season.”
Also, it’s unclear how much water HB33 will actually save. Ferry noted 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. “This is 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.”
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