Micah Safsten: Proper incentives will save the Great Salt Lake, not the Public Trust Doctrine

Water conservation should be encouraged, not enforced, by the state.

Any parent of a teenager can tell you about the futility of implementing unduly burdensome rules. At some point, trying to control precisely how your kid behaves at any given moment will end up having the reverse effect.

But that’s true across the board, not just for teenagers: Too many rules will make a rebel out of anyone. And if Utah policymakers are not careful, this is precisely what will happen over water conservation efforts for the Great Salt Lake. Rather than mandating water conservation from above, we should be incentivizing it.

This misguided approach was recently recommended by an editorial in these pages, touting the principles of the “public trust” legal doctrine as a way to save the Great Salt Lake. In law, public trust doctrine is the principle that a given natural resource belongs to the public and therefore can and should be regulated by government in the public’s best interest. Like the strict parent, adherents of public trust doctrine presume to know both what is in the public’s best interest, and how to implement it.

Public trust doctrine fails to incentivize conservation. Rather, it severs the responsibility for conservation away from water users and transfers it to a bumbling state bureaucracy that works against individual interests. Under public trust, the interest of water users is put into direct conflict with conservation.

To hold that natural resources are owned equally by everyone is to assert that they have less value than they would otherwise. If a farmer owns a share for the use of Bear River water, he owns an asset that can be used, sold or leased. If the Legislature were to lay a claim on the use of that water, it would diminish the economic value of that asset. The result? Water would be even more underpriced than it already is. And water that’s underpriced is also overused, as wasting those which costs little is of little consequence.

Conversely, if water has a high price-point, leasing water rights or keeping it in a water bank makes more sense. It also makes sense to implement technology that will limit the amount of water necessary to grow crops, or choose more drought resistant crops to begin with. If we are going to prevent the complete desiccation of the Great Salt Lake, we must value the water that flows into it.

Defenders of public trust will, no doubt, object here, saying that water’s highest value is as a part of nature, not as an asset that can be traded for a bitcoin or share in Amazon stock. That’s true for anyone who’s not a farmer. Indeed, conservation is simple for people whose water needs essentially end at our plumbing fixtures and sprinkler systems.

For those who need large amounts of water to earn a living, however, conservation is far less abstract. It is a cost-benefit analysis, one that has real life consequences. We can turn up the heat on agriculture to conserve water, and we should, but a zero-sum game where the Great Salt Lake wins and farmers lose is unnecessary, unjustified and ineffective.

If legislation is going to spur water conservation, it will come by aligning the competing interests water users have, not by making them compete even more. The allowance of water banking, for example, has the potential to make water conservation profitable. Allowing for the leasing of water rights, and the creation of a trust that will lease these in-stream flows also shows a great deal of promise. Policymakers should also look at ways to make water a more valuable asset, so that users can be more careful and rights-holders more willing to lease for conservation.

Public trust doctrine does precisely the opposite of this. It makes conservation a chore, one that water users will be loath to carry out. Parents know that incentivizing good behavior is better than mandating it. While the government is not a parent, and water users are not children, the principle is no different if we see the government as a steward of the public good.

Let’s not make Utahns choose between their personal interests and the Great Salt Lake, especially when we don’t have to.

Micah Safsten

Micah Safsten works as communications and outreach coordinator at the Utah Water Research Laboratory. He is also a contributor for Young Voices, where he writes about natural resources policy and water in the west. His views do not necessarily represent those of his employer.