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WATERSHED ISSUESUtah QUALITY GROWTH COMMISSIONSeptember 9, 2016571504690745Willow Heights, part of Salt Lake City’s 31,000 acres of forest in the Wasatch Canyons. This parcel was purchased in part with funds provided by the Utah Quality Growth Commission through the LeRay McAllister Critical Land Conservation Program.00Willow Heights, part of Salt Lake City’s 31,000 acres of forest in the Wasatch Canyons. This parcel was purchased in part with funds provided by the Utah Quality Growth Commission through the LeRay McAllister Critical Land Conservation Program.Why Look At Water? State Statute (11-38-202 Utah Code) empowers the Utah Quality Growth Commission to make recommendations to the State Legislature and the Governor on Growth Management issues. In a State like Utah, water is a major growth factor. Utah is growing. Our population will double in the next 40 years. Water is the lifeblood for Utah’s economy and quality of life. Without water, this growth is impossible. Because we are growing so fast, we must become better stewards of our limited water resources. For this reason, The Commission recently undertook an effort to evaluate how the watersheds in Utah are managed and in particular, the granting and application of Extra Territorial Jurisdiction by the state to Cities of the First Class (A City whose population exceeds 100,000) and other issues . The Commission focused their efforts on Salt Lake City’s watershed, because Salt Lake City was the first city in the state to be granted extra territorial jurisdiction. Salt Lake City has been an active watershed manager for over 150 years. In addition, Salt Lake City’s watershed and water distribution cover some of the most populated and used land in the state. From time to time, even long standing policies and practices warrant review. Authority granted by the state must protect the public health, welfare, safety, recreation and economic growth of the state and be science based. The application of this Extra Territorial authority by a city must not be arbitrary. The Commission believes this review of Extra Territorial Jurisdiction and related issues is critical and timely. The Commission anticipates that there will be those who view its efforts with suspicion, but, we hope that our work will shed some light on how our watersheds, water rights, and pollution control efforts are currently being managed. We also hope that some of the lessons learned by this effort will be shared with, and utilized by, other water managers and policymakers throughout the state.Extra-Territorial JurisdictionSection 10-8-15 of the Utah Code grants to cities the right to exercise extra territorial jurisdiction over the land along streams in which they have rights for drinking water for 300 feet on either side of the stream, and for 15 miles from the point of diversion (a total of 1100 acres) in order to protect the water from pollution, to reduce treatment costs and to protect public health. However, the same section grants to Cities of the First Class (those with 100,000 population or more) the right to regulate the entire watershed, ridgeline to ridgeline. Many of the Salt Lake County watersheds are regulated by Salt Lake City under this authority. Salt Lake City has water rights in many areas of the state. Salt Lake City’s water sources, in Salt Lake County, come from six canyons with ridge line to ridgeline jurisdiction covering more than 192 Square miles of Salt Lake County most of which are outside of Salt Lake City’s municipal boundaries.In Utah, we have five cities of the First Class. These are Salt Lake City, West Valley City, West Jordan, Sandy and Provo. While 239 cities exercise the standard Extra Territorial Jurisdiction--300 feet on each side of their streams or water sources (1,100 acre watershed jurisdiction)--for pollution control, these five Cities of the First Class have watershed jurisdiction from ridge line to ridge line. We now have several Cities of the First Class, and the potential exists for more cities begin regulating watersheds as Salt Lake City does now. In fact, Salt Lake City, and Sandy both regulate Little Cottonwood Canyon using this authority.Below, is a chart showing the current Cities of the First Class along with other Utah Cities that will reach this threshold soon. Cities in italics below are cities of the first class.Largest Cities in UtahCityPopulationSalt Lake City190884West Valley City134495Provo114801West Jordan110781Orem91781Sandy*91148Ogden84361St. George72231South Jordan62781Millcreek incorporate 201762500 est.*Sandy became a city of the first class in 1999 before its population dropped.Salt Lake City, West Valley City, Provo, and West Jordan are currently over 100,000 in population and are Cities of the First Class. Sandy City reached this milestone in 1999 and was granted this classification. Their population has since declined, but Sandy still retains its first class designation. Currently, Salt Lake City and Sandy are the only cities using this authority to govern the watersheds that supply their water. Salt Lake City’s watershed Area includes all the area in Little Cottonwood Canyon that is covered by Sandy City’s watershed area, so the management in Little Cottonwood Canyon is shared.Things have changed since this authority was first granted1—At Statehood, Salt Lake City made up 69% of the population of Salt Lake County. That percentage rose to 73% in 1920. This was about the same time that the special extra territorial jurisdiction for cities of the first class was included in state law, and Salt Lake City became the only city of the first class. In addition, Salt Lake City had the largest and most sophisticated government in the state. It made sense for Salt Lake City to manage the watersheds at this time. No one else was equipped to do it.2—Salt Lake County has grown, and, by 2015, Salt Lake City was only 17.6% of the population of Salt Lake County. Other governments, such as the State of Utah and Salt Lake County, are far larger than Salt Lake City Government. These governments are already involved in planning for, and regulating the watersheds. Salt Lake County produces a very good countywide watershed plan that has been updated twice since Salt Lake City last updated its plan. The County Health Department has pollution control regulations that apply in the watersheds, and Salt Lake County provides planning and zoning for these canyons. Many of these zones include regulations designed to protect the watershed and limit development in sensitive areas. The State of Utah enforces federal law in the canyons. They apply the provisions of the Clean Water Act and the Safe Drinking Water Act, both federal laws, and monitor the water quality to ensure that our drinking water is safe. County and State Residents are disenfranchised by the extra-territorial jurisdiction1—Salt Lake City Council is elected by only 17.5% of the County Population, but writes ordinances that apply to a total of 16 percent of county land outside city boundaries. These lands are used by millions of county residents and visitors every year. None of these county residents have a vote or voice in how these watershed lands are managed. Salt Lake City's watershed jurisdiction is some 4 million acres, sprawling over multiple counties. In addition, 112,880 acres are actively patrolled by watershed rangers who work with police to enforce the ordinances as well as providing education to people using the watershed. Many county residents receive either a lecture or a ticket for unknowingly violating an ordinance that they did not know about and cannot change.2—The potential for Salt Lake City and others to expand the ridgeline to ridgeline management could disenfranchise many more Utahns. For example, a farmer in Wasatch County could potentially face regulation from Salt Lake City as well as other First Class Cities. Each could potentially assert watershed jurisdiction over his farmland, and he would have no vote or voice in those regulations.No scientific justification has been advanced for increasing the watershed jurisdiction beyond the standard municipal jurisdiction of 300 feet on either side of the creek for 15 miles or 1100 acres.1—A city of 99,999 is little different from a city of 100,000 yet the city of 100,000 can regulate 192 square miles, or more, as Salt Lake City does, while the city of 99,999 can only regulate 1100 acres. Nowhere does Salt Lake City explain the health based scientific reasons why the additional ridgeline to ridgeline jurisdiction is required.2—Public Health regulation—which this is by statute—should have a scientific basis for the regulation, none is ever offered by Salt Lake City for regulations like requiring full body wetsuits for canoeists, or prohibiting wading in streams.3—The single most effective pollution control measure implemented in the canyons was installing a sewer line. There is ample scientific evidence showing decreased water pollution after the line was installed. Water quality is essentially the same now as it was after the line was installed. There is little evidence that prohibiting wading in canyon streams, or requiring full body wetsuits for canoeists has a measurable effect on water quality.4—Salt Lake City has not provided any data to show that its watershed regulations keep the cost treating the water down. In fact, these regulations may increase the cost of treatment. For example, It costs Salt Lake City $300 to produce an acre-foot of treated water from canyon water that is three times cleaner than water from the Provo River. Yet, Jordan Valley Water Conservancy District treats Provo River Water for $50 an acre foot. Salt Lake City has the authority to regulate the watersheds wherever they own water rights according the Director of the Division of Public Utilities and information obtained from GRAMA Requests, sworn legal depositions and other sources. Currently only the watershed in Salt Lake County is regulated. That totals 192 square miles or 122,880 acres which is only a fraction of land covered by Salt Lake City’s Water Rights.1— According to the Division of Water Rights, Salt Lake City has water rights on water sources in Salt Lake County, Utah County, Wasatch County, a portion of Juab County, a portion of Duchesne County and a portion of Summit County. This area is about 4 million acres or about 6,000 square miles. Currently, Salt Lake City regulates 192 square miles in Salt Lake County out of their 6,000 square miles of watershed jurisdiction; but Salt Lake City could enforce their ridge line to ridge line authority on all these properties in the future.2—Current regulations eliminate all livestock in the watershed. If this type of Salt Lake County Style regulation is imposed in all of these areas it could devastate local agriculture producers.3— The Division of Water Rights confirmed that it is a fair statement to say that a portion of Summit, a portion of Juab, a portion of Duchesne and Wasatch, Utah and Salt Lake Counties are a source for Salt Lake City’s water. The Chart that appears below shows the portion of each county constituting Salt Lake City’s watershed, the acres impacted, the square miles impacted, and the population of the County.Portion of Summit (1/3)WasatchUtahSalt LakePortion of Juab(1/5th)*Duchesne(1/5th)401,000 acres626.5 acres771,840 acres1,206 sq miles1,372,160 acres2,144 sq miles516,480 acres807 sq miles435,968 acres681 sq miles416,768 acres651 sq miles36324 People23530 People516564 People 1029655 People10348 People18607 PeopleThis totals 1,635,028 people who could be impacted by Salt Lake City watershed regulation, more than half the population of the State. According to Salt Lake City, all of these areas are potentially subject to city regulation under the grant of extra territorial jurisdiction.No updated plans or ordinances since 1999Salt Lake City Residents have not had a chance to comment directly on the Watershed Ordinance or Watershed plan for at least 15 years.1—The City Watershed Plan has not been updated since 1999, and the watershed ordinance since 2001. It is difficult to manage to a plan, if the plan, and the ordinances that implement it, are so far out of date2—While other studies by Envision Utah, Salt Lake County, Mountain Accord etc., have looked at watershed issues, no formal public hearings have been conducted by Salt Lake City in almost a generation. 3—It is difficult to manage a watershed if you do not have the latest science, and a recent plan to manage to.Salt Lake City Holds Massive Water RightsSalt Lake City did not dispute controlling the rights to over 500,000 acre feet of water, but their use is only 50,000 acre feet. Salt Lake City also sells 25,000 acre feet for about $25 million to other users via surplus water contracts. Additionally, Salt Lake City did not dispute these surplus water contracts do not provide a permanent source of water to their municipal customers.1—425,000 acre feet of water rights are not being used at the present time.2—Additionally, Salt Lake City water district has applications pending to appropriate an additional 110,000 acre-feet of water plus 9000 acre-feet by its subsidiary.3—500,000 acre feet of water is far more than would ever be required by the residents of the service area for the next 40 years. The State Legislature has allowed cities to acquire rights to meet the 40 year demand, but not to hoard water beyond that.4—Salt Lake City cites the Utah Constitutional prohibition of cities selling water rights as the reason why they hold so much water. But, is this interpretation correct? Utah Code 73-1-3 governs all water – “Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state.” The plain language of this statute means any water a city cannot beneficially use within 40 years reverts back to the state. Where water is granted to a city by water demand representations which are in error, then the water granted in error is not sold for a wind fall, but reverts back to the State for re-apportionment. This is not a matter of the State confiscating from a municipality, but merely taking back what was granted via over-appropriation. While Commission members are not water law attorneys, we believe this issue is not as cut and dried as Salt Lake City would have us believe.5—Town of Alta, Park City, Wasatch County (Jordanelle Special Service District), Cottonwood Heights, Holladay and others get at least some of their water from these terminable water contracts which are not permanent, Salt Lake City can terminate these contracts at will. In fact, when push came to shove, for legal advantage in Shrontz v SLC and Alta, Salt Lake City did cancel a surplus water contract. (For more information see the chart below)6— The disclosure that homes and businesses lack a permanent water supply will dramatically impact the Real Estate industry. Currently, the true nature of the terminable water source is not disclosed to the Buyer, Lender, and Title Company. It is highly unlikely that loans will be available for structures that do not have a permanent water source. Once sellers, realtors, title, mortgage and others fully understand this issue, they are obligated to disclose the temporary water. 7—Water hoarding gives older cities an economic advantage. (such as Facebook water issue in West Jordan) Water hoarding also negatively affects housing prices, especially for low and moderate income home buyers.Despite Surplus Water being available, Salt Lake City refuses to sell water to anyone in Big or Little Cottonwood Canyons. This prohibition on new water connections has been in place since 1991. However, in the Mountain Accord Process, Salt Lake City agreed to, arbitrarily; make an exception to allow expansion at four Ski Resorts. If it goes forward as planned, this expansion would be the largest development in these canyons in decades.1—Private landowners who want to build a home on an otherwise buildable lot are prevented from developing these lots because Salt Lake City will not sell water to them.2—When private parties try to move other water up the canyon using the State’s change application process, they get sued, and when the state engineer grants their change application request, he gets sued. 3—Alta resort gets some water from its mid-mountain restaurant from water running from an old mine tunnel. Salt Lake City will not permit Alta Resort to drill a well near the mouth of the tunnel to get better, cleaner water. Rather, Alta must install an expensive water filtration system to make this water usable in the restaurant.4—Salt Lake City has allowed ski resorts to get extra water for snowmaking because they view that as a water storage option, but other users cannot get water from the city.5—This prohibition coupled with aggressive litigation against many canyon landowners, has prevented any new development in the canyons. While some will argue that preventing development in the canyons is a good thing, abusive litigation and the arbitrary application of the water ordinance is not the best approach to accomplish this goal.Salt Lake City Water EmpireSalt Lake City’s used and unused water holdings are so massive that Salt Lake City has effective control of much of Utah’s water.1—Salt Lake City Public Utilities is a $3.7 Billion Public Utility2—Salt Lake City Controls the Metropolitan Water District. 7 of 9 Seats on the board are appointed by Salt Lake City.3—Salt Lake City and Sandy, partners in Metro District, control the Provo River Water Users Association which controls Deer Creek Reservoir. 8 of 11 seats on Association board are appointed by Salt Lake City or Sandy.4—Salt Lake City is a major shareholder in East Jordan Irrigation Company5—Salt Lake City appoints the Chair of the Board of Canal Presidents which controls level of Utah Lake.6—Both Salt Lake City and Sandy have seats on the Board of the Central Utah Water Conservancy District, plus one of the water attorney’s that Salt Lake City has on retainer has also represented CUP for 54 years.7—Salt Lake City bought out the Butler Ditch and the Cahoon and Maxfield Irrigation Company8—Salt Lake City owns the Forest Dale Water Company9—Salt Lake City Employee acts as the Little Cottonwood Creek CommissionerThe chart below shows the areas that Salt Lake City serves water to. Paper water refers to water supplied by a revocable surplus water contract. Pipe refers to water supplied by infrastructure owned by Salt Lake City. These areas have a permanent water source.Cottonwood HeightsPaper and pipeMillcreek CityPaper and pipeTown of AltaPaper water onlyPark CityPaper water only (up to $300,000 per year)Wasatch County (JSSD Water Co)Paper water only (up to $400,000 per year)Service Area #3 SnowbirdPaper water onlySilver Fork Pipeline CorporationPaper water onlyForest Home CompanyPaper water onlyBig Cottonwood Pine tree Water CompanyPaper water onlyLady of the Lake AssociationPaper water onlyEvergreen Summer Homes AssociationPaper water onlyBrighton LDS CampPaper water onlyForest Glen Plat “B” & “C”Paper water onlyMt. Haven Owners AssociationPaper water onlyMill D Summer Homes AssociationPaper water onlyForest Glen “A” Water AssociationPaper water onlyUS Forest ServicePaper water onlySilver Lake EstatesPaper water onlyPorter Fork Summer HomesPaper water onlySilver Lake CompanyPaper water onlyCanyon water contracts to private partiesPaper water onlyMetro SLC & Sandy water contactsPaper water onlyAlta Ski ResortPaper water onlyBrighton Ski ResortPaper water onlySolitude Ski ResortPaper water only As mentioned above, Salt Lake City has bought out and closed several water companies. It has also sued others to prevent independent actions by these companies. A list of these companies appears below.Bulter Ditch CompanyClosed by SLCBrown and SanfordClosed by SLCMaxfield/Cahoon Water CompanyClosed by SLCBig Ditch Irrigation CompanySued by SLCLower Canal, Lower Canal’s attorney is the same used by Salt Lake CitySued by SLCSilver Fork PipelineSued by SLCBoundary Springs Water Users AssociationSued by SLCPayson CitySued by SLCEnvironmental Conservation and DegradationSalt Lake City takes pride in protecting the environment, as we all do. In a recent presentation, Salt Lake City officials reminded those present of the need to keep our water clean so that we can limit the cost of treatment. Salt Lake City has also acquired nearly 31,000 acres of forest land to prevent development. However, while Salt Lake City has much to be proud of, there are environmental concerns.1—Salt Lake City does not have a full time forester to manage and monitor the health of its forest holdings, or to assist the Forest Service and others in monitoring the health of the greater watershed.2—Salt Lake City bills itself as the watershed manager, however, they do little active management such as removing invasive weeds, or dead and down trees. The Cottonwood Canyons Foundation, funded mostly by the Ski Resorts with a small contribution from Salt Lake City, does most such projects. The foundation works with the resorts, the forest service, and the state DNR to do forest health and watershed enhancement projects.3—Water Quality in the canyon streams which are used for drinking water is generally good, but several heavy metals are present. Zinc, Copper, and recently Cadmium have been detected in the water. Zinc and Copper are not toxic to humans, and are mostly a threat to fish and other aquatic life, however, Cadmium is a dangerous poison, and the 2016 Draft Report from the Utah Division of Water Quality notes that this is a threat to aquatic life, but it also notes a human health advisory as Cadmium is poisonous at any level. In most cases, the contamination of these metals is low. Salt Lake City and DEQ have identified the sources. Remediation should begin as soon as possible.4—Salt Lake City discharges billions of Gallons of Utah Lake Water into Big and Little Cottonwood Creeks, as well as Parley’s Creek, each year. This water is fit for irrigation, but contains algae, as well as being a conduit to introduce Phragmites and other invasive species into the ecosystems below the treatment plants. This can have negative impacts on small animals, fish and other aquatic life as well as being dangerous for pets and humans if they are exposed to the water.5—Because Salt Lake City controls the water sources in these streams even below the water treatment plants, their impact and control extends far beyond the areas formally in their watershed areas. They impact the health, and vitality of all these streams below the treatment plants, as well as above. ................
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