Dear Representative or Senator:
As a citizen of the Great State of Utah, a Voter and a Sailor, I make one simple request of you: Take 20-30 minutes of your valuable time considering this and other emails you have received, and the supporting information referenced, to educate yourself on the importance of the Great Salt Lake, its surrounding environment and your legislative obligations, under law, to manage and protect the Great Salt Lake.
Under State and Federal law, the governing doctrine is that of Sovereign Lands. The state recognizes this according to the following from the Division of Fire, Forestry & State Lands website:
http://www.ffsl.utah.gov/index.php/state-lands
State Lands
The State of Utah recognizes and declares that the beds of navigable waters within the state are owned by the state and are among the basic resources of the state, and that there exists, and has existed since statehood, a public trust over and upon the beds of these waters. It is also recognized that the public health, interest, safety, and welfare require that all uses on, beneath or above the beds of navigable lakes and streams of the state be regulated, so that the protection of navigation, fish and wildlife habitat, aquatic beauty, public recreation, and water quality will be given due consideration and balanced against the navigational or economic necessity or justification for, or benefit to be derived from, any proposed use.
The Equal Footing Doctrine serves as the basis for Utah’s claim to fee title ownership of sovereign lands (more widely known as submerged lands). The Equal Footing Doctrine is a principle of Constitutional law that requires that states admitted to the Union after 1789 be admitted as equals to the Original Thirteen Colonies in terms of power, rights, and sovereignty including sovereign rights over submerged lands. The Utah Enabling Act, enacted by the U.S. Congress on July 16, 1894, officially declared Utah as a state “to be admitted to the Union on an equal footing with the original States.”
The Utah State Legislature has designated the Division of Forestry, Fire & State Lands as the executive authority for the management of sovereign lands, and the state's mineral estates on lands other than school and institutional trust lands. Sovereign lands are defined by the Utah State Legislature as “those lands lying below the ordinary high water mark of navigable bodies of water at the date of statehood and owned by the state by virtue of its sovereignty.” (Emphasis added)
The State of Utah manages the following as sovereign lands:
NOTE: The historic ordinary high water mark for the Great Salt Lake is 4200 Ft. Elevation.
Current Elevation: 4,193.9 Ft. Elevation. (Approaching a 167 year record 4191.35 low level)
Utah Lake
Great Salt Lake
Bear Lake (Utah portion)
Jordan River
Green River (portions)
Colorado River (portions)
Bear River (portions)
Statute: Title 65A. Forestry, Fire, and State Lands
Administrative Rule: Title R652. Natural Resources; Forestry, Fire & State Lands
See also: http://www.ffsl.utah.gov/index.php/state-lands/great-salt-lake
The Federal government has jurisdiction over all navigable waters as defined below. Hence, under the Equal Footing Doctrine granted to Utah with Statehood, the state is obligated to preserve the navigability of its Sovereign Lands. The Federal government specifically defines “navigable waters”, identifies the Great Salt Lake and references two United States Supreme Court cases involving the State of Utah wherein “navigable waters” is more specifically defined as follows:
Waters that Qualify as Waters of the United States
Under Section (a)(1) of the Agencies’ Regulations
The Environmental Protection Agency (EPA) and United States Army Corps of
Engineers (Corps) “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States” guidance (Rapanos guidance) affirms that EPA and the Corps will continue to assert jurisdiction over “[a]ll waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.” 33 C.F.R. § 328.3(a)(1); 40 C.F.R. § 230.3(s)(1). The guidance also states that, for purposes of the guidance, these “(a)(1) waters” are the “traditional navigable waters.” These (a)(1) waters include all of the “navigable waters of the United States,” defined in 33 C.F.R. Part 329 and by numerous decisions of the federal courts, plus all other waters that are navigable-in-fact (e.g., the Great Salt Lake, UT and Lake Minnetonka, MN).
Holt State Bank, 270 U.S. at 56.
5. By the federal rule, streams or lakes which are navigable in fact are navigable in law; they are navigable in fact when used, or susceptible of use, in their natural and ordinary condition, as highways of commerce over which trade and travel are or may be conducted in the customary modes on water, and navigability does not depend on the particular mode of such actual or possible use -- whether by steamboats, sailing vessels, or flatboats -- nor on the absence of occasional difficulties in navigation, but upon whether the stream, in its natural and ordinary condition, affords a channel for useful commerce. P. 270 U. S. 56. (Emphasis added)
In U. S. v. Utah, 283 U.S. 64, (1931) and U.S. v. Appalachian Elec. Power Co,
311 U.S. 377 (1940), the Supreme Court held that so long as a water is susceptible to use as a highway of commerce, it is navigable-in-fact, even if the water has never been used for any commercial purpose. U.S. v. Utah, at 81-83 (“The question of that susceptibility in the ordinary condition of the rivers, rather than of the mere manner or extent of actual use, is the crucial question.”); U.S. v. Appalachian Elec. Power Co., 311 U.S. 377, 416 (1940) (“Nor is lack of commercial traffic a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation.”).
In 1971, in Utah v. United States, 403 U.S. 9 (1971), the Supreme Court held that
the Great Salt Lake, an intrastate water body, was navigable under federal law even though it “is not part of a navigable interstate or international commercial highway.” Id. at 10. In doing so, the Supreme Court stated that the fact that the Lake was used for hauling of animals by ranchers rather than for the transportation of “water-borne freight” was an “irrelevant detail.” Id. at 11. “The lake was used as a highway and that is the “gist of the federal test.” Ibid.1
I am a native of Utah and have sailed on the Great Salt Lake for over 25 years. As past Commodore of the Great Salt Lake Yacht Club (organized in 1877, predating Statehood), I represented the Club in support of the Coalition to Keep the Lake Great, opposing expanded mineral extraction, and giving input to the Comprehensive Management Plan (Great Salt Lake Comprehensive Management and Mineral Leasing Plans) commissioned by the state for the management of the Lake and its uses. Tens of thousands of dollars were spent developing the Plan by the state and countless man-hours invested to establish how important the GSL is economically, environmentally, commercially, recreationally and ascetically to the State of Utah.
Now, it is time to take actions in response to the legal obligations of the state, Federal Constitutional requirements and the Comprehensive Management Plan, commissioned by the state, and do the right thing. Begin with appropriating enough money to dredge the GSL Marina, providing navigable access to the deeper waters of the Lake. Right now navigation in the GSL Marina is severely restricted. If not dredged this year navigation from the Marina into the Lake will be impossible for all but the shallowest draft (less than 3FT) boats, I along with 50 to 100 others will be forced to pull our boats from the marina, store them, sell them or move them out of state.
The Great Salt Lake is the namesake of our capitol, Salt Lake City; it is a huge tourist attractions and an economic powerhouse in the state. Failure to maintain navigable water access in the GSL Marina will result in a ghost town for a marina, costing the state hundreds of thousands of dollars in lost slip rental income and creating a tarnished view in tourists’ minds when they visit the only major State Park Marina on the Lake and see 300+ slips and only a hand full of small boats. What will be the economic impact to the state from that bad impression? Failure to maintain the navigable waters of the Lake would also expose the state to potential legal problems under the Sovereign Lands Doctrine. The state has entered into contracts renting slips to boat owners with the implied purpose of having navigable access to the greater Lake for sailing and boating. Failure to maintain navigable access may constitute a breach of that contract.
Thank you for your time and I look forward to your favorable actions to appropriate funding for dredging the Great Salt Lake Marina immediately.
With respect,
Gerald W. Harwood