By James R. Cefalo
In recent years, there have been numerous news articles about the causes and impacts of declining water levels in the Great Salt Lake. Idahoans may feel that Great Salt Lake water levels are Utah’s problem. Idaho does, however, have an interest in the Great Salt Lake, because the lake is fed by streams that arise in or flow through Idaho. This article contends that Idahoans should become familiar with the Great Salt Lake issues and monitor the actions the federal government and the State of Utah are taking to address the decline in lake levels. This article provides some basic facts about the Great Salt Lake and its relationship to the Bear River. Additionally, it describes how changes in laws, regulations, and policies related to the Great Salt Lake could affect water users in Idaho, particularly those water users located in the Bear River Basin. The State of Idaho and its water users in the Bear River Basin should carefully monitor the actions intended to restore the Great Salt Lake to ensure those actions do not negatively impact water users in Idaho.
Great Salt Lake Basics
The Great Salt Lake is a terminal lake, meaning it has no natural outlet to the ocean.[i] It is the largest saline lake in the Western Hemisphere.[ii] The major tributaries to the Great Salt Lake are the Jordan River, which collects water from rivers and streams in the mountains surrounding Salt Lake City and Provo, the Weber River, and the Bear River.[iii] Of these three rivers, the Bear River is the largest tributary, accounting for approximately 60% of the freshwater entering the lake each year.[iv]
Water levels in the Great Salt Lake have been regularly monitored since the pioneers entered the Salt Lake Valley in the mid-1800s.[v] In 1986, the lake reached a historic maximum level at an elevation of 4,211.7 feet above sea level.[vi] At that level, the surface area of the lake is over 3,300 square miles.[vii] In November 2022, the lake reached a historic low at an elevation of 4,188.6 feet above sea level, roughly 23 feet lower than the high point in 1986.[viii] At the historic low water level, the surface area of the lake is only 950 square miles.[ix] To conserve water and prevent evaporation, the State of Utah has blocked off channels to the north arm of the lake, significantly reducing the active surface area of the lake.[x]
Bear River Basics
The Bear River is an interstate stream that flows through the southeast corner of Idaho.[xi] Its headwaters are in the Uinta Mountains in Utah.[xii] The Bear River flows from Utah into Wyoming, near Evanston, then back into Utah, then back into Wyoming, then flows into Idaho just east of Montpelier.[xiii] The Bear River flows north from Montpelier to Soda Springs, then turns south and flows past the communities of Grace and Preston before flowing back into Utah north of Logan, Utah.[xiv] The river flows into the Great Salt Lake on the east side of the lake, just west of Brigham City, Utah.[xv] Although the Bear River is over 500 miles long, it empties into the Great Salt Lake just 90 miles from its headwaters.[xvi]
In Idaho, the Bear River is primarily diverted for direct irrigation use. It is also diverted to fill Bear Lake, an augmented natural lake that also serves as a storage reservoir for downstream irrigators. Water users in Wyoming and Utah also divert water from the Bear River and its tributaries, primarily for irrigation use.[xvii]
In 1958, Idaho, Utah, and Wyoming adopted the Bear River Compact to resolve disputes about water deliveries in the Bear River Basin.[xviii] The Compact was amended in 1980 to include provisions about future water development within the basin.[xix] The Amended Compact has many fascinating nuances that could entertain a water law attorney for hours. For purposes of this article, however, it is sufficient to note that Idaho participates in a federally approved interstate compact which addresses water deliveries on the Bear River during times of shortage and governs future development of water resources within the river system.
Although the Amended Compact describes a process to initiate formal administration of water rights by priority date in the Lower Division (which extends from Bear Lake to the Great Salt Lake), the states of Utah and Idaho have voluntarily administered water rights in the Lower Division without regard to the Idaho-Utah state line. In other words, water rights on the main channel of the Bear River between Bear Lake and the Great Salt Lake are currently regulated against a common priority date.
Bear River Diversions and Great Salt Lake Levels
Some advocates for restoring the Great Salt Lake contend that the recent decline in lake levels is caused by an increase in diversions by upstream farmers and ranchers, particularly in the Bear River Basin. This contention fails to consider important nuances of water use in the Bear River Basin and is often presented as an attack on irrigators.
Water has been diverted from the Bear River and its tributaries for irrigation use since the late 1800s. In Idaho, many of the water rights for irrigation use from the Bear River or its tributaries bear priority dates senior to 1900, meaning the water rights were developed prior to 1900 and have been used for irrigation since the rights were first developed. In drought years, like 2021 and 2022, because of a limited surface water supply, the only water rights from the Bear River and its tributaries receiving water through most of the summer are those rights with priority dates senior to 1900. In drought years, junior water rights (those with priority dates later than 1900) on the Bear River and its surface water tributaries have little impact on water levels in the Great Salt Lake because those water rights receive little or no water.
As part of the 1980 Amended Compact, the states of Idaho, Utah, and Wyoming agreed to track future depletions in the Bear River Basin.[xx] In April 2023, the Bear River Commission approved a report summarizing the depletions occurring in the Bear River Basin since 1976.[xxi] According to the report, since 1976, there have been only 14,410 acre-feet of additional depletions developed above Stewart Dam (located near Montpelier, Idaho) and only 11,307 acre-feet of additional depletions developed between Stewart Dam and the Great Salt Lake.[xxii] In total, the water developments occurring after 1976 only consume approximately 26,000 acre-feet of water. To put that number into perspective, at the historic low water level in November 2022, the Great Salt Lake contained approximately 4.5 million acre-feet of water.[xxiii]
The 2023 report shows there have been very minor changes to the annual depletions occurring in the Bear River Basin since 1976. In fact, in some areas of the basin, total depletions are lower today than in 1976.[xxiv] The Great Salt Lake hit its maximum recorded lake level in 1986. The total water use from the Bear River has only slightly increased since 1986, yet the lake levels have declined dramatically. What has changed? The answer is simple: snowpack, or lack thereof. Between 1982 and 1986 (the historical maximum lake level), the Bear River Basin had consecutive years of above-average snowpack. In the 10 years prior to 2023, the Bear River Basin had only one year with snowpack significantly above the average (2017), four years with near average snowpack (2014, 2016, 2019, and 2020), and five years of below average snowpack (2013, 2015, 2018, 2021, and 2022).[xxv]
To a large extent, the use of surface water in the Bear River drainage has remained steady for nearly 150 years, particularly in drought years, when junior rights are curtailed. Despite this steady historical irrigation use, the Great Salt Lake reached a maximum recorded lake level in 1986. Although water users in the Bear River Basin have some impact on lake levels, it seems unfair to solely blame those water users for the current woes of the Great Salt Lake.
Future Development in the Bear River Basin
It is important to note that the opportunities for additional water development in the Bear River Basin in Idaho are quite limited. In Idaho, the Bear River and its tributaries have been considered fully appropriated during the irrigation season since the early 1980s. In 2001, the Bear River Basin in Idaho was designated as a Ground Water Management Area (“GWMA”), pursuant to Idaho Code § 42-233b. As such, the depletions (consumptive use) associated with new ground water uses (except for small domestic and stock water uses) must be fully mitigated by commensurate reductions in consumptive use.
The Malad River originates in Idaho and flows into the Bear River in Utah. In November 2015, the Idaho Department of Water Resources issued a moratorium on new appropriations from ground water in Malad Valley. Like the Bear River GWMA, new consumptive uses of ground water in Malad Valley (except for small domestic and stock water uses) must be fully mitigated.
Utah has taken similar steps to restrict future development in the Bear River Basin in Utah. Because of concerns about Great Salt Lake levels, on November 3, 2022, Governor Cox of Utah issued Proclamation No. 2022-01, suspending the appropriation of the surplus and unappropriated water of the Great Salt Lake and its tributaries, including the Bear River.[xxvi] The proclamation does not have a specific term or sunset provision but does call for the State Engineer to prepare a report evaluating whether the proclamation should remain in effect.[xxvii]
The federal government is also acting on Great Salt Lake concerns. In December 2022, President Biden signed the Saline Lake Ecosystems in the Great Basin States Program Act of 2022, which authorizes the United States Geological Society (“USGS”) to create a program “to assess and monitor the hydrology of saline lake ecosystems in the Great Basin,” including the Great Salt Lake.[xxviii] The USGS will work with Tribal, Federal, and State agencies, nonprofit organizations, universities, and local stakeholders to prepare a report describing specific actions needed to improve data collection for the assessment of saline lakes in the West.[xxix] The act allocates $25 million over five years to complete the report and implement the assessment and monitoring programs.[xxx] Of note, the act states that it shall have no effect on existing water rights, interstate compacts, or the management and operation of Bear Lake.[xxxi]
“Saved Water” for the Great Salt Lake
On March 14, 2023, Governor Cox of Utah signed S.B. 277, which significantly revised Utah’s laws related to water conservation. S.B. 277 creates an “agricultural water optimization” program, which allows Utah irrigators to apply for grants to install water conservation infrastructure. The statute identifies the water conserved through these infrastructure projects as “saved water.” In addition, S.B. 277 describes a process by which a water user in Utah can file a change application (transfer application) to designate a portion of their water right as “saved water.” The saved water can then be sold or leased to others and possibly sold or leased to the State of Utah to increase water levels in the Great Salt Lake.[xxxii] Moving saved water to a new location or dedicating the saved water to a new use raises concerns about injury to other water users and enlargement of use. The following hypothetical illustrates these concerns.
Assume Farmer Stewart diverts water from Canyon Creek. Also assume Stewart’s existing irrigation system is fairly inefficient – open ditches and flood irrigation. Although Stewart diverts 10 cubic feet per second (cfs) of water, his crops only consume about 60% (6 cfs) of the water. The remaining 40% (4 cfs) returns to Canyon Creek, either on the surface or subsurface, and is used to satisfy downstream water rights. Assume Stewart now installs pipelines and a drip irrigation system to become more efficient. Stewart’s crops continue to consume about 6 cfs, but now Stewart only diverts 6 cfs because his system is so efficient. The remaining (undiverted) 4 cfs is “saved water.” If the 4 cfs is simply left in the creek, it could still be used to satisfy downstream water rights. If, on the other hand, Stewart is allowed to sell or lease the 4 cfs to another water user or dedicate the 4 cfs to lake recovery, the 4 cfs is no longer available to satisfy downstream water rights. To satisfy downstream water rights (that used to rely on the 4 cfs of return flow from Stewart), upstream junior water rights (possibly junior water rights in other states) would have to be curtailed to replace the 4 cfs of saved water sold or leased by Stewart.
In Idaho, a water user may convey all or a portion of a water right to another person. Idaho Code § 42-222(1) states that this type of conveyance can be approved, provided the change does not injure other water rights or result in an enlargement of use under the original right. To protect against injury and enlargement, when a water user proposes to change the nature of use of a water right, such as from irrigation to municipal use, the State of Idaho limits the new use to the consumptive portion of the water right to be changed. Statutes governing change applications in Utah contain similar protections against injury and enlargement.[xxxiii]
It is unclear whether S.B. 277 revises Utah’s protections against injury and enlargement for change applications involving saved water. S.B. 277 distinguishes between “depletion reduction,” which means a “net decrease in water consumed,” and “diversion reduction,” which means a “decrease in the net diversion amount from that allowed under a water right.”[xxxiv] In one section, S.B. 277 suggests that water users will only be able to convert depletion reductions from irrigation use to “saved water.”[xxxv] In other areas, however, S.B. 277 states that “saved water” is comprised of depletion reductions and diversion reductions.[xxxvi] This is a critical question. If “saved water” includes diversion reductions and can now be dedicated to fully consumptive uses, like Great Salt Lake restoration, there could be significant injury and enlargement impacts for upstream water users, including water users in Idaho.
The Great Salt Lake is a unique and valuable ecosystem and Utah’s efforts to restore and preserve the lake are commendable. These restoration and preservation efforts, however, cannot come at the expense of water rights or water users in Idaho. Over the coming years, as Utah begins to apply S.B. 277, Idahoans must pay close attention to how the water conservation program is implemented to ensure that changes involving “saved water” do not shift impacts to water users in Idaho.
James R. Cefalo is the Eastern Regional Manager for the Idaho Department of Water Resources (“IDWR”). He received a bachelor’s degree in civil in environmental engineering from the University of Utah and a J.D. from the University of Colorado. James was born and raised in Brigham City, Utah, which lies just east of the Bear River Migratory Bird Refuge. The opinions expressed in this article are the author’s and are not the opinions or positions of IDWR or the State of Idaho.
[i] Wayne Wurtsbaugh, Craig Miller, Sarah Null, Peter Wilcock, Maura Hahnenberger, Frank Howe, Impacts of Water Development on Great Salt Lake and the Wasatch Front, Watershed Sciences Faculty Publications (Feb. 24, 2015).
[ii] Great Salt Lake, Utah Division of Water Resources,https://water.utah.gov/great-salt-lake/.
[iii] Wurtsbaugh, supra note 1, at 1.
[v] Great Salt Lake, supra note 1.
[x] Great Salt Lake, supra note 1; Utah Exec. Order 2023-02 (Feb. 23, 2023) (ordering the Utah Division of Forestry, Fire, and State Lands to raise the berm around the causeway bridge, which spans the channel connecting the North Arm of the Great Salt Lake to the main body of the lake, to 4,192 feet above sea level); see also Ben Winslow, Water now spilling over emergency causeway berm in the Great Salt Lake, Fox 13 News, https://www.sltrib.com/news/2023/05/03/water-now-spilling-over-emergency/ (reporting that water was spilling over the emergency berm in May 2023 because of increased lake levels).
[xi] https://bearrivercommission.org/docs/Bear%20River%20Basin%20Map-goodscan.pdf (diagram of Bear River Basin prepared by the Bear River Commission).
[xvi] The Bear River, Wyoming State Water Plan, Wyoming Water Development Office, https://waterplan.state.wy.us/BAG/bear/briefbook/bcompact.html.
[xvii] Id. (Between Idaho, Utah, and Wyoming, over 500,000 acres are irrigated from the Bear River and its tributaries).
[xviii] The Bear River Commission, an entity created through the Bear River Compact, prepared an excellent report of the disputes and negotiations leading up to the ratification of the 1958 Compact and the 1980 Amended Compact. The report, written by Wallace N. Jibson and titled “History of the Bear River Compact,” can be found on the commission’s website: https://bearrivercommission.org/docs/History%20of%20Bear%20River%20Compact.pdf.
[xix] I.C. § 42-3402, Article V.
[xx] I.C. § 42-3402, Article V(C).
[xxi] 2019 Depletions Update (April 18, 2023) at 2. The 2019 Depletions Update is a report prepared by the Technical Advisory Committee for the Bear River Commission and does not identify authors by name. It was adopted by the commission at its annual meeting on April 18, 2023.
[xxii] Id. An acre-foot of water is a measurement of volume, one foot deep covering one acre, and is equal to 325,850 gallons of water.
[xxiii] See Robert L. Baskin, Calculation of Area and Volume for the South Part of the Great Salt Lake, United States Geological Survey (2005), https://pubs.usgs.gov/of/2005/1327/PDF/OFR2005-1327.pdf.
[xxiv] 2019 Depletions Update (April 18, 2023) at 2 (Utah’s depletions downstream of the Idaho-Utah state line are 5,336 acre-feet less today than in 1976).
[xxv] https://www.nrcs.usda.gov/Internet/WCIS/AWS_PLOTS/basinCharts/POR/WTEQ/assocHUCut_8/bear.html (displaying annual snowpack data collected by the U.S. Natural Resources Conservation Service).
[xxvi] Utah Proclamation 2022-01, Utah Code § 73-61 (Nov. 3, 2022). The proclamation restrictions do not apply to non-consumptive uses or appropriations of small amounts of water. Id.
[xxviii] Pub. L. No. 117-318, 136 Stat. 4421 (2002).
[xxxii] Amy Joi O-Donoghue, Shift in Utah Water Law could be “Game changer’ for the Great Salt Lake, Deseret News (March 7, 2023).
[xxxiii] Utah Code § 73-3-3(1)(e).
[xxxiv] Utah Code § 73-10g-203.5(7) and (8).
[xxxv] Utah Code § 73-10g-208(1)(a).
[xxxvi] Utah Code §§ 73-10g-203.5(10), 73-10g-208(2).