Posted on August 22, 2022
In a blistering announcement Wednesday, Utah state land managers said that important elements of the proposed Lake Utah The dredging project is not constitutional because the privatization of the lakebed, which is considered “sovereign land”, would take away from the duty of the state to manage such land in a “public trust”.
Jamie Barnes, Utah, speaking before an interim legislative committee Department of Natural Resources‘ State Land Director, said by the proposal Lake Restoration Solutions (LRS) raises “material and substantive legal issues” and that its island-building plan could harm the interests of the state.
The Utah company has claimed for the past five years that its plan to excavate one billion cubic yards Lake bottom sedimentation will result in many public benefits – as well as the creation of up to 20,000 acres of developable real estate. The company says the lake will increase water supply, improve water quality, increase recreational opportunities, and restore navigability and wildlife habitat.
But during that time, the LRS has not yet accumulated scientific data supporting those claims, Barnes told the Natural Resources, Agriculture and Environment Interim Committee.
The company is proposing to spend $6.5 billion on its Utah Lakes Restoration Project (ULRP), and in return, the state will give it some artificial islands to sell as “shovel-ready” real estate. The stated goal is to recover a 150-square-mile lake that after a century of neglect has become a eutrophic soup filled with invasive creatures.
LRS’ promotional materials describe build-out scenarios with approximately 170,000 residential and 27,450 commercial units – essentially enough to support a city of half a million people. In pitches for potential funds, including the Federal Environmental Protection Agency, the company refers to the state as a “partner.”
It’s an odd role for a government player allowed to oversee one of the largest dredging projects ever undertaken.
Now state officials are alerting lawmakers about their serious reservations about the legality of the project’s key feature: the “settlement” of the lake bed.
“The proposal is unconstitutional and not legally correct,” Barnes said. “I understand this is a matter of first impression, but this project presents a risk to the state of Utah. There is the potential for permanent loss of sovereign land to the private entity. The sovereign land is due to the state on a fiduciary duty basis. risk, [is] A permissible infringement on public access to a State property.”
Under long-standing legal precedent, the beds of navigable waterways are inherently public and must be managed in “public trust” in perpetuity. This generally means that they must always be available for public access or serve a public purpose. Barnes’ declaration shows that the island subdivisions are not buildable.
The LRS has argued its proposal squares with the public trust for the benefits of deepening the lake 7 feet and using the spoils to create new dry land. Indeed, the proposal received support from the Utah Governor’s Office of Economic Opportunity and every member of the state’s congressional delegation.
“The project will result in a deep, clear lake, dotted with islands for recreation, conservation and world-class waterfront living, which will isolate nutrient-laden sediments and protect the natural ecosystem of the lake and its waters. will allow the restoration of health.” The delegation jointly wrote to the EPA on May 21, 2021 in support of the LRS’s request for hundreds of millions in public funding.
“More than 30 billion gallons of water conservation savings could be produced through reduced evaporation and removal of miles of invasive plant species,” the letter continued. “ULRP proposes to implement a comprehensive plan to restore Lake Utah and provide economically and environmentally responsible development to fund extensive restoration investments on Lake Utah.”
This may be all well and desirable, but is it constitutional? At the request of the DNR, the company submitted a legal memorandum explaining its rationale behind the proposed disposal of sovereign land.
“The submitted memorandum has been subjected to a comprehensive legal review of [Utah] The Attorney General’s Office, who is our legal advisor,” Barnes said. “I have been advised by our legal counsel that there are material and substantive legal issues with the proposal submitted by Lake Restoration Solutions and it is to the State of Utah and the Public Trust. is harmful.”
Barnes said work by the DNR and federal agencies to fix the long-suffering lake’s ecological problems is working and deserves continued support.
“There’s a misconception that Lake Utah is deteriorating,” she said. “My Division” [of Forestry, Fire and State Lands] Management is currently taking action to improve the quality of Lake Utah. Over time we have seen improvements in Lake Utah. , We need to look at all options to enhance the quality of Lake Utah and make it a functioning ecosystem. It is important that we start taking proactive measures on the lake and not be reactive.”
Although the DNR’s position now appears to doom the project, Barnes insists that his agency is not making any recommendations at this time.
Barnes’ announcement was met with the silence of the committee, whose members have been staunch supporters of digging up the lake and pushed for a 2018 law that accelerated the proposal. Co-chair Representative Keven Stratton, an Orem Republican who has become skeptical about the dredging of the lake, moved on to the next item on the committee’s busy agenda with only a brief remark.
“I agree it’s a big job. And I’ll just say that the effort is to be the best version of it, looking at Lake Utah,” he said. “It’s an option among others.”
After the hearing, Barnes declined to discuss the attorney general’s opinion with a reporter, citing client-attorney privilege. He also refused to release the legal memorandum of LRS.
LRS officials did not immediately respond to requests for comment and submitted a memorandum to state officials. In the meantime, the project is moving forward to LRS, which announced Wednesday US Army Corps of Engineers Selected Anchor QEA Services As a third party contractor to perform environmental analysis.