Developers proposing to dredge Utah Lake have filed a new lawsuit, this time demanding the Utah Department of Natural Resources reinstate their rejected application to raise artificial islands on the lake.
A politically connected Utah company called Lake Restoration Solutions is now turning to the courts to force state officials to review their $6 billion project, which would scrape a billion cubic yards of sediments off the lakebed and shape the spoils into new land. The stated aim is to restore the ailing lake’s ecological health, but the proposal has been met with intense skepticism from the day it was unveiled five years ago before the Utah Legislature.
In October, DNR’s Division of Forestry, Fire and State Lands issued a 22-page decision, concluding the project would not be in Utah’s best interests. Privatizing 16,000 acres of lakebed for real estate development would violate the state’s obligations to manage the lakebed in the public trust, according to the agency’s legal analysis.
That decision was based on “a misguided and legally incorrect understanding” of the public trust doctrine, according to the suit filed Wednesday in Provo’s 4th District Court, and contradicted the Legislature’s “clear and and express directives.”
The suit asserts the state’s move has caused the company “material financial harm” and disrupted its ties with the lenders and the investment community.
“Unless the division’s improper actions are remedied by the executive director, these relationships will deteriorate, and the restoration of Utah Lake will lack the billions in funding contemplated by the act,” the suit states, referencing the 2018 Utah Lake Restoration Act. “The project is the architype [sic] of project contemplated by the act, and the division should not impede the fulfillment of the Legislature’s intent that a private company receive ‘state land in and around Utah Lake as compensation for the comprehensive restoration of Utah Lake.’”
Dueling lawsuits
Lake Restoration Solutions is already suing a Brigham Young University scientist in hopes of recovering $3 million in damages arising from his allegedly defamatory criticisms of the project. Ecology professor Ben Abbott is now advancing a countersuit, accusing the company of abusing the judicial process to silence legitimate debate. These cases are pending in Salt Lake City’s 3rd District Court.
Underlying the litigation is the company’s unproven assertions that deepening the shallow Utah Lake by 7 feet and sequestering contaminated sediments in artificial islands would fix the lake’s water quality problems and dramatically boost its storage capacity.
Abbott and other critics in Utah’s scientific and water management communities have dismissed such assertions as fantasy, saying a dredging operation of such magnitude would wreak ecological havoc and detract from ongoing efforts to restore Utah’s largest freshwater lake.
(Christopher Cherrington | The Salt Lake Tribune)
In response to the company’s initial proposal in 2018, the Legislature passed HB272, directing DNR to consider giving the lakebed to private developers in exchange for restoration work that would accomplish 13 goals, including improvements to the lake’s water quality, water supply function, navigability and recreational access.
Later that year, the Division of Forestry, Fire and State Lands accepted the company’s application, but its review was hampered by a lack of documents supporting the company’s assertions. Then, last year, the company submitted a much more detailed proposal to the U.S. Army Corps of Engineers, which began preparing an environmental impact statement as required of major dredging projects affecting “waters of the United States.”
This plan detailed a phased construction of an 18,000-acre network of artificial islands, offshore from Vineyard, the fast-growing city on the lake’s northeast shore.
The latest suit says company officials met regularly with DNR officials to share information, brainstorm and review plans. Early on, the company and the state agency had a strong working relationship, the suit states, but it later bowed to pressure from project “detractors” to stymie it.
“LRS invested millions of dollars into scientific research, engineering and design,” the suit adds, “to better understand the problems facing Utah Lake, develop potential solutions, and inform both the [state] application and the corps permit application,”
Through the years, however, the company failed to demonstrate that the project would accomplish its aims, according to the Army Corps and DNR, prompting both agencies to suspend their reviews.
Did state’s rejection ignore the whole law?
The company petitioned DNR Executive Director Joel Ferry last fall to overrule the decision of Forestry, Fire and State Lands Director Jamie Barnes rejecting the application. Ferry declined, saying Barnes’ move was appropriate and based on applicable law.
“The proposed enhancement cannot appropriately compensate current and future generations for the permanent impairment to the land and water remaining and the permanent deprivation of thousands of acres of state sovereign land,” Ferry wrote in his Dec. 12 order. “The division correctly determined the application must be canceled.”
In making this call, DNR disregarded its own regulations, the suit contends. Under Utah law, the agency is obligated to analyze the application under the many factors spelled out in HB272. Its decision “myopically focused” on only one factor having do with management.
“Instead of analyzing the application under the statutorily established public trust factors, the division created its own unwritten public trust rules based on its own mistaken interpretation of Utah public trust law,” the suit says. “The division is not free to substitute its own view and interpretations in place of those of the state Legislature.”
The project, the company argues, would result in many changes in the lake that will advance the public trust.
“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. The islands will also create miles of publicly accessible shoreline for public recreation including fishing,” the suit says. “Dredging will also deepen the lake, thus allowing larger vessels to navigate the waters and carry out commerce thereon.”
It’s hard to dispute that, but, skeptics counter, would dredging ease the lake’s harmful algal blooms, reduce the level of contaminants in the water, restore native vegetation, rid the lake of invasive species, protect existing water rights, improve wildlife habitat and increase the lake’s storage capacity? After five years, not much has been released to the public showing artificial islands would accomplish those benefits.
Follow @brianmaffly