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For a century, state law has granted Utah's largest cities authority over land use in the watersheds they tap for water.
Salt Lake City had learned the hard way that grazing and building should be tightly regulated in nearby canyons to avoid contaminating the water it pipes into residents' homes, after excrement accumulating in City Creek Canyon triggered a typhoid outbreak in the 1940s.
That old statute is now in the crosshairs after Central Wasatch canyons landowners, unhappy with Salt Lake City's authority to block development on their private property, enlisted a little-known state agency to persuade the Legislature to re-evaluate Utah cities' "extraterritorial jurisdiction" the power that has protected drinking water sources for generations.
"Any law that is 100 years old ought to be looked at. People living in Salt Lake County need to understand what this really means to them," said John Bennett, the staff director of the Quality Growth Commission (QGC) who is now spearheading a "conversation" over Salt Lake City's jurisdiction.
The city represents 17 percent of Salt Lake County's population, Bennett said, yet it holds power to impose pollution-control ordinances over 185 mostly uninhabited square miles in the mountainous reaches rising to the east of Utah's urban core.
"If you don't live in Salt Lake City you can't influence what happens in the canyons because of the city's extraterritorial jurisdiction," he said. "They have pushed their jurisdiction as far as they can."
The debate is the latest front in a long-running battle between landowners in Big and Little Cottonwood Canyons and Utah's largest city.
At issue is the fate of old mining claims in the two busiest drainages managed by the Uinta-Wasatch-Cache National Forest, crowded with recreational visitors year round. These mine claims, now in private hands, total about 8,700 of acres held by a few dozen owners who can't develop because Salt Lake City holds rights to nearly all water in the canyons.
State lawmakers have told Bennett's agency to offer guidance on reforming the statute, although no final recommendations are expected in time to inform legislation in the upcoming session, which opens Monday. But at a contentious hearing before the QGC board last Thursday, Bennett aired draft recommendations and took testimony from landowners and others denouncing Salt Lake City's policies as overreaching, arbitrary and ineffectual for actually safeguarding water supplies.
City officials and conservationists contend Bennett is distorting the facts and has allowed his agency to be co-opted by water speculators and developers who stand to make a killing on the canyons' sky-high real estate values. Should the city loose its authority to enforce stream setbacks and other ordinances in Little and Big Cottonwood canyons, critics say, undeveloped private parcels could be worth millions as possible sites for luxury cabins in lovely alpine settings like Cardiff Fork and Albion Basin.
"When there is that kind of economic disparity of values, the vultures of development want to swoop in search of profit regardless of impact to watershed," said conservationist Pat Shea, a lawyer representing Friends of Alta.
He pointed out that national forests were established a century ago in the Wasatch to ensure a reliable supply of pure water for the growing cities between Provo and Ogden.
"That basic need hasn't changed. The rationalization for extraterritorial jurisdiction if anything remains stronger now than it did 100 years ago," said Shea, who likened Bennett's role to a "wolf in sheep's clothing."
The old statute grants cities whose populations exceed 100,000 the authority to enact pollution-controlling ordinances that blanket their watersheds from ridgeline to ridgeline. Smaller cities are limited to regulating just 300 feet on either side of a stream for 15 miles above the point of diversion.
In a recent op-ed, mayors Jackie Biskupski of Salt Lake City and Tom Dolan of Sandy vowed to fight "efforts that would limit our ability to steward this precious resource" and called the inquiry launched by Bennett "one-sided."
"Our hard line grew out of experience," wrote the mayors, referring to the typhoid outbreak. That crisis closed the canyon until 1962 yet it has since become a popular destination for hiking, picnicking and cycling as long as the dog stays home.
"Thankfully," the mayors wrote, "our collective communities have heeded these lessons on water quality disasters, and have prioritized the protection of our watersheds to avoid risk . . . As a result, our drinking water is clean, and we have avoided public health disasters and economic impacts from water contamination that have so profoundly affected other communities."
"Because municipal water suppliers are responsible to the public to meet safe drinking water standards," Dolan and Biskupski wrote, "it makes sense our cities have authority to manage watersheds."
Salt Lake City officials are now questioning the involvement of the QGC, set up by statute in 1999 primarily to administer the LeRay McAllister Critical Land Conservation Fund. That state fund has helped conserve 110,000 acres by leveraging $20 million to purchase land and easements. But the Legislature has starved it of cash for years and now the commission is pursuing another mission: developing recommendations to policy makers on growth questions.
Bennett said he is offended that critics allege the commission's inquiry will lead to the ruin of the Cottonwood watersheds, when he says his goal has been conservation.
A sure way to conserve private lands and eliminate conflict, Bennett said, is for the city to buy the land, yet the city has refused to negotiate with these owners fairly,
Cyle Buxton, whose family owns the old Howell mine in Cardiff Fork, said the city approached him about buying the property but he told them it wasn't for sale. They offered $700 an acre.
"That's a slap in the face," Buxton told the Tribune. "They said the land is worthless without water. Well, water is worthless without land."
Among the draft recommendations Bennett offered Thursday was establishing a process that would enable those willing to sell to get out of the canyon.
But according to Laura Briefer, head of Salt Lake City Public Utilities, the city desires to purchase from willing sellers, but it is legally obligated to pay no more than fair market value.
Briefer said she didn't know enough to comment on the alleged low-ball offer to Buxton, but she noted his family understood the situation when it acquired the Cardiff land in the 1990s.
"If Cyle buys land without a water purveyor and knowing my watershed ordinance doesn't allow him to build, it's like he is asking us to change the rules so his investment gains value," Briefer said.
Over the years, the city has acquired some 32,000 acres of private land in the Cottonwoods and other canyons it taps.
Bennett has plenty of defenders, especially among groups that support property rights, who accuse the city of trying to squelch a much-needed public discussion.
"All we have been asked to do is shine a light on it so we can get a better understanding," said Randy Parker of the Utah Farm Bureau. "It is troubling to see push back from the powers that be."
Briefer countered that the commission's proceedings have lacked transparency.
"We were never asked to consult as a partner in the conversation," she said. "We are in the awkward position to defend against misinformation."
Briefer said the city has asked lawmakers to move the inquiry to the Executive Water Task Force or Utah Water Development Commission, legislative bodies she said have better expertise and resources for addressing water issues.