The Utah Lake dredging proponents are not going away without a fight.
Lake Restoration Solutions LLC filed papers last month with the Utah Department of Natural Resources asking its executive director Joel Ferry to overrule an Oct. 27 decision rejecting the so-called Utah Lake Restoration Project. The company claims the DNR’s Division of Forestry, Fire and State Lands (FFSL) misconstrued the public trust doctrine and violated state law when it deemed the proposal unworthy of consideration.
In their official response, state officials said it would be a waste of time to continue assessing something that “obviously” runs afoul of the Utah Constitution’s proscriptions for “sovereign lands.”
“Petitioners [Lake Restoration Solutions, or LRS] are effectively asking the Division to approve all land exchanges, even if they are obviously illegal and/or unconstitutional,” FFSL director Jamie Barnes wrote in her Dec. 1 response. “Even without any direct statutory authorization or fiduciary responsibility, it would be against public policy to require executive branch agencies to approve obviously illegal or unconstitutional proposals.”
It is now up to Ferry to decide the matter, which appears to be headed to an eventual court fight.
For the past five years, the Utah company has been pursuing an ambitious plan to scoop nearly a billion cubic yards of nutrient-laden sediments from the bed of Utah’s namesake lake and sculpt them into a network of artificial islands which would be available for residential and commercial real estate and public recreation.
Under the project, LRS would gain title to 16,000 acres of former lakebed — land that must be managed by law in the public trust — to sell to developers.
A 2018 bill passed by the Legislature directed DNR to evaluate LRS’s proposed land exchange against 13 criteria aimed at improving the lake’s ecological health, recreational access, water storage and other benefits. (A former Republican lawmaker from Box Elder County, Ferry was not a member of the Legislature when the law was passed.)
From the outset, the project has faced withering criticism from Utah’s scientific community and water managers who believe such a project would result in more harm than good. LRS filed a defamation suit against a leading critic. Ben Abbott, a Brigham Young University ecology professor, is now countersuing the LRS, which is scrambling to thwart public disclosure of evidence filed in the case.
Then this fall, the Army Corps of Engineers and FFSL both terminated their reviews of the $6 billion project, effectively killing the proposal in a move widely celebrated by environmentalists who argued it detracted from legitimate efforts to address the lake’s problems.
FFSL concluded the project would violate the public trust doctrine by privatizing land that is constitutionally obligated to remain available for public access and public purposes, such as hunting and fishing.
But in an unsigned petition submitted to Ferry on Nov. 22, LRS executives alleged FFSL thumbed its nose at its legislative mandate under the 2018 law and acted “arbitrary, capricious and contrary to law.”
The petition claims only the Legislature or governor is authorized to assess the project’s legality and accused FFSL of trying to create new law. The company argues the division’s job should be limited to promulgating standards, criteria and thresholds for assessing whether the dredging project would meet the requirements of the 2018 law.
“Despite lacking any statutory authority, the Division has masqueraded as a judge and final arbiter of whether the [LRS] Application and Project is constitutional,” the petition states.
In places, the petition reads like the precursor to a lawsuit, claiming the FFSL’s rejection has caused the company “material financial harm” and sabotaged its relationships with the lenders executives have lined up to finance the project.
Dredging squares with the public trust “because the Project will enhance the public’s use and enjoyment of the property, help the public navigate Utah Lake, improve commerce thereon, preserve the valuable and scarce water resources, and increase fishing opportunities,” it states. “The islands will be strategically shaped and positioned to promote the flow of water throughout the lake and protect boats and other craft from strong winds.”
Because the islands created by the dredged material would help the public better enjoy the remaining 70,000 acres of lake, giving this land to LRS is consistent with the public trust, the petition argues.
“Since the Division accepted the Application in 2018, LRS has invested millions of dollars into scientific research, engineering, and design to better understand the problems facing Utah Lake, develop potential solutions, and inform both the Application and the Corps Permit Application,” it states.
These islands would also create miles of publicly accessible shoreline. And the resulting deeper water would allow larger vessels to explore the lake and improve water quality, reduce evaporation, prevent algal blooms, remove invasive fish and plants and restore native fish, the document contends.
Whatever information LRS’s investment produced, the Army Corps found it lacking, according to its Sept. 22 letter to LRS explaining its decision to terminate the environmental review. According to FFSL and the Army Corps, LRS failed to provide evidence that the stated benefits would be achieved through dredging.
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