Water Rights for the Great Salt Lake: Is it the Impossible Dream?

Abstract: The Great Salt Lake is many things: It is a terminal lake. It’s an environmental jewel providing habitat to migrating birds and significant wet lands—nature’s best filter for preserving water quality. It supports significant economic activity. It provides various recreational opportunities, and it is a contributor to poor respiratory health when lake levels are low. Although basin-wide water supplies have not significantly changed since pioneer settlement times, upstream diversions under appropriated water rights have increased and those diversions have lowered the lake’s elevation by 11 feet. This decline will continue with our growing population and the increasing demands a doubling of our population will have on the available water supply.

Appropriated water rights are a preferential right of use granted or permitted of a state-owned resource. And while the appropriated right gives a degree of exclusivity in the possession and priority of use, it is a vested but conditional property right that has always been subject to the assertion of broader federal and state interests, where necessary, to protect the broader needs of society. These broader public interests have been expressed in the public trust doctrine and the public welfare aspect of state appropriation laws. The public trust doctrine is grounded in federal common law, whereas the public welfare/interest standard is a state common law principle. Either or both doctrines can be asserted by governmental and private interests, where necessary, to protect the public’s interest, and their assertion can displace or modify the so-called vested appropriated water right.

There are other avenues to creating a water supply for the Great Salt Lake that are less draconian than the public trust doctrine, that could be employed through voluntary market based transactions on either a temporary or longer-term arrangement. Certain changes to our water laws and policies will be required to make these options more feasible.

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