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Protests Flow Freely After Utah and Idaho Apply to Appropriate 400,000 Acre Feet of Water From Bear Lake

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Former Counsel
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by Graham J. Gilbert

Bear Lake straddles the Utah-Idaho border.  While it was originally an isolated, natural lake, improvements installed over a century ago connected the lake to the nearby Bear River and allowed it to be operated as a reservoir.  Outflow from Bear Lake now enters the Bear River, which flows north and west through Idaho, south into Utah, and ultimately into the Great Salt Lake.

On March 23, 2018, the Utah Division of Water Resources (UDWR) and Idaho Department of Water Resources (IDWR) filed two joint water rights applications – one in Idaho and one in Utah – to appropriate 400,000 acre feet of water in Bear Lake. The applications propose to allocate 125,000 acre feet of the appropriation to Idaho and the remaining 275,000 acre feet to Utah.  The Utah application is identified by Water Right No. 23-3972 and the Idaho application is identified by Water Right No. 11-7835.

Bear Lake is operated, in part, for flood control purposes.  Each year, prior to March 31st, water is released to make room in the lake to capture spring runoff and avoid flooding.  UDWR’s and IDWR’s applications would stop these annual flood control releases.  The 400,000 acre feet would remain in storage in the lake for release at other times during the year.

One important consequence of the applications is that Bear Lake will lose its flood control function.  To replace this function, UDWR and IDWR propose to obtain flood control easements from downstream agricultural properties.  UDWR and IDWR have not yet acquired these flood easements and the applications do not indicate how many easements will be required, or how much they may cost.

The applications propose to use the 400,000 acre feet of water for the following purposes: recreation storage; aesthetic storage; irrigation; municipal; and mitigation/augmentation uses.  The applications state that the water will be used in Bear Lake, Caribou, Oneida, and Franklin Counties in Idaho and Cache, Box Elder, Weber, Davis, and Salt Lake Counties in Utah.

The applications are separate from, and in addition to, the Bear River Water Development Project.  The Project was approved by the Bear River Development Act, which was adopted by the Utah Legislature in 1991.  The Act allows diversion of 220,000 acre feet of water from Bear Lake to serve growth along the Wasatch Front.  UDWR has already secured water rights necessary to implement the Bear River Development Project.

The applications offer few details for existing water users to evaluate.  For instance, the applications offer a wide range of potential uses and an expansive proposed place of use.  But they do not identify any specific end users for the water.  Without specific uses and places of use, it is hard to understand how the applications will influence Bear River flows, when releases from storage will occur, where rediversions will occur, and where return flows will accrue.  We can, however, make some generalizations.  Early spring flow in the Bear River will be reduced.  400,000 acre feet of water that was previously released prior to March 31st of each year will remain in storage in Bear Lake and will not flow down the Bear River to the Great Salt Lake.  Idaho’s entitlement under the applications is 125,000 acre feet.  For Utah water users, this represents an annual decrease in Bear River flows of up to 125,000 acre feet.  There are many other potential impacts of the applications, but these impacts are hard to quantify without knowing when, where, and how the water will be used.

While the applications were filed in March 2018, neither Utah nor Idaho has published notice of the applications yet.  In both states, publication of notice triggers a deadline for interested parties to file a protest.  In Utah, protests must be filed within 20 days of the last date of publication of notice.  In Idaho, protests must be filed within 10 days of the last date of publication of notice.  Both states will identify the specific protest due date once they publish notice of the applications.

While notice of the applications has yet to be published and the formal period to protest has not yet started, dozens of protests have already been filed in Utah.  The protestors include the Bear River Water Users’ Association and many individuals.  Environmental groups have also voiced concerns about the impact the applications will have on water levels in the Great Salt Lake.  In Idaho, one protest has been filed on behalf of multiple parties, including the Bear River Water User’s Association, several irrigation companies, and individuals.