Great Salt Lake and the law: Great Salt Lake Project wades through murky policy questions and legislation

Mar 02, 2024 | Stegner Center

by Brian Maffly

This article originally appeared in At the U.

Professor Brigham Daniels, left, and Associate Professor Beth Parker lead the Great Salt Lake Project
Professor Brigham Daniels, left, and adjunct Associate Professor Beth Parker lead the Great Salt Lake Project.

In response to the relentless decline of Utah’s Great Salt Lake, several University of Utah legal scholars have launched a campaign to advise the public and policymakers on ways to avert the lake’s ecological collapse, along with a slew of economic and environmental consequences.

With an eye toward policy guidance and legal reforms, the S.J. Quinney College of Law’s Wallace Stegner Center unveiled the Great Salt Lake Project (or GSL Project) last month at the opening of the Utah Legislature’s 2024 session, which is drawing to a close this week.

Led by law professor Brigham Daniels, the team posted weekly updates during the session and will host a wrap-up on March 21 at the law school.

The threats to the lake stem largely from upstream diversions to provide water for agriculture and growing cities. These impacts have been exacerbated by climate change and two decades of drought.

While no single solution will rescue the lake, the most cost-effective and efficient strategies involve stemming these diversions and allowing more water to run into the lake, according to a report co-authored by Daniels, the GSL Project director, and Stegner colleague Beth Parker.

“Great Salt Lake is in danger, and so too is our quality of life. To change the lake’s future, Utah must reduce its collective water consumption,” reads the paper’s opening paragraph. “Effecting change at the scale needed to save the lake is a formidable challenge. However, resisting change is not an option. If we fail to save the lake, we fail ourselves, our families, and the future of the place we call home.”

What the legislature is considering

With a few days left in the legislative session, several bills and appropriations affecting the lake await final action.

To track this legislation, Daniels and Parker established the Great Salt Lake Policy Accelerator with a group of law students, posting weekly updates during the session. Their final post can be viewed here.

Topping the list of bills on the team’s watch list is a measure that would establish a comprehensive regulatory scheme for mining companies that deploy evaporation ponds near the lake. Under current law, extractive industries have no limit on the water they can take out. HB453 would replace this “free-for-all” with a regulatory framework similar to what other water users have to abide by, according to Daniels.

“The Legislature must pass this bill to ensure that any water saved for the lake ends up benefitting the lake instead of a mining operation,” the legislative update states. HB453 passed the House and is awaiting action in the Senate.

A non-binding resolution, HJR27 would provide a comprehensive list of the 77 municipalities within Great Salt Lake’s watershed that have yet to address water conservation in their municipal plans. The proposed resolution calls on these municipalities to act.

“While in many ways a water conservation ‘naughty list,’ the list also provides targets for low-hanging fruit for municipal water conservation efforts,” the team wrote in a recent legislative update.

Also on the team’s priority list is HB401, which would restrict the municipal irrigation season to May 1 to Sept. 30, eliminating unnecessary watering in late spring and early fall. While this bill would greatly benefit the lake, it never received a committee hearing and has no chance of passing.

The team highlighted three proposed appropriations to fund projects that would help ensure conserved water reaches the lake and remains there.  One would pay for the infrastructure needed to measure this water and another would step up the removal of phragmites, an invasive reed proliferating along the lake shore that sucks up vast amounts of water, yet provides little in the way of habitat.

A key appropriation would fund a pilot supporting a practice called split-season leasing, where farmers forgo watering alfalfa at the height of summer in exchange for lease payments.

“You can cut alfalfa multiple times during a season. When it’s hardest to grow alfalfa is the heat of the summer. It’s also the time of year when you use the most water,” Daniels said.  “What if we could save half the water but still get three-fourths of the crop?”

The session’s most important bill regarding Great Salt Lake passed with little opposition. Awaiting Gov. Spencer Cox’s signature is SB18, which would change the water-rights law to favor delivering water to Great Salt Lake, first by granting reprieves on forfeiture of water rights associated with nonuse. The bill also would define the measurement of “saved water” from irrigation-efficiency improvements and restrict protests to cases where changes demonstrably impact another appropriator’s water rights.

The College of Law’s Great Salt Lake Project is distinct from the Great Salt Lake Strike Team, which is comprised of researchers from the U, Utah State University and state agencies. The strike team provides the best available science to lawmakers, whereas the GSL Project is strictly policy-focused.

A word of warning to the state of Utah

Its inaugural report—the first in a series to be released this year—explores the legal minefield associated with the lake’s ongoing degradation, which not only threatens ecological catastrophe but could also result in various legal repercussions for the state of Utah, according to the white paper coauthored with Parker and legal scholar Karrigan Bork of the University of California, Davis. Further declines could lead to costly lawsuits against the state and federal interventions, the report said.

The report examines the obligations placed on the state by the Clean Air Act, the Public Trust Doctrine and the Endangered Species Act.

Chronically low water levels could imperil the survival of many animal species that rely on the terminal lake for habitat and unleash harmful dust plumes from exposed lakebeds. Millions of migratory birds are protected under international migratory bird treaties and the Federal Migratory Bird Treaty Act.

“The continued decline of the lake does not merely impact the plight of one or two local bird species, but rather the numerous migratory bird species around the lake,” the report stated. “This implicates both national and international interests, and extends concerns far beyond local boundaries.”

Should migratory birds, such as the Wilson’s phalarope, get listed as an endangered or threatened species, Utah might lose its management oversight of these birds to federal authorities.

“This could result in the reallocation of water necessary to protect the lake. The state and private actors could find themselves subject to a wide range of civil and even criminal penalties,” the report said. “Federal regulation and or remedies imposed by federal courts could limit Utah’s ability to dictate the strategy employed to save the Great Salt Lake.”

Meanwhile, the exposed lakebed, which is permeated with toxic chemicals in places, presents a threat to human health. Airborne dust could put Salt Lake City’s airshed in violation of Clean Air Act standards, resulting in possible restrictions on industry, construction and even agriculture.

“If Utah isn’t willing to make these necessary changes, the federal government could determine how to address this air pollution problem,” the report continued. “Utah is at a pivotal moment. The state has the opportunity to limit extensive legal risks associated with the ailing Great Salt Lake, but to do so requires quick decisive action to change the lake’s future.”