The Great Salt Lake is Disappearing. So, Utah Banned the Rights of Nature.

A guest essay by Will Falk

For 11,000 years, The Great Salt Lake and its wetlands have provided habitat for hundreds of species. Today, nearly 350 bird species—totaling more than 10 million migratory birds—depend on this ecosystem for food like brine flies and brine shrimp.

In the mid-1800s, agriculture began reducing the Great Sale Lake’s water levels. Today, 74% of this water loss comes from irrigating for alfalfa and other crops, mineral extraction (nine percent), and lawns and decorative plants (another nine percent). Reduced mountain runoff and increased evaporation from climate change account for the remaining recorded water loss. (Utah houses dozens of data centers, and at least one covers 1.5 million square feet. Data centers guzzle water to keep their computers cool—and yet data about their water consumption in Utah is not readily available.)  

The Lake has lost 60% of its surface area and 73% of its water. It measures nineteen feet below healthy water levels. As its surface area shrinks, toxic dust (previously trapped on the lakebed) is exposed, causing significant air pollution. As water flows into the Lake dwindle, salinity increases, harming brine fly and brine shrimp populations.

Since 2020, drying of the Lake has increased. Annually, the Lake averages a deficit of 1.2 million acre-feet of water. Simply put, we take more from the Lake than is replenished. Researchers predict that if this rate of loss continues, The Great Salt Lake will disappear in five years.

Utah’s legislative efforts to sustain the Lake

Utah’s State Legislature has ostensibly passed laws to address the Great Salt Lake’s accelerating water loss. 2022 House Bill (HB) 410 created a $40 million trust “to implement projects…that retain or enhance water flows to sustain the Great Salt Lake; to improve water quality and quantity; and to engage agricultural producers, local landowners, local planning authorities and others to support the Great Salt Lake.”

HB 242 requires secondary water providers to install meters by 2030.

Neither law forces cuts in consumption—while researchers assert that to reverse its decline, “the Lake needs an additional million acre-feet (of water) per year.”

Indeed, saving the Great Salt Lake requires water consumers to cut their consumption immediately and drastically. Utah’s water laws, based on the “Doctrine of Prior Appropriation,” fall 90% short. Legally, the first person who uses the water “beneficially” holds the right to use it over subsequent users. The law also states that a water rights holder loses her rights when she fails to put the water to “beneficial use.” Historically, “beneficial use” has meant diversion and irrigation. Typically, conserving water is considered wasteful, and leads to forfeiture of water rights.

In 2022, Utah passed HB 33, “Instream Water Flow Amendments.” This law expanded the definition of “beneficial use” to include leasing water rights to organizations that return water to the Lake; but HB33 does not mandate conservation. It is highly unlikely that enough water rights holders will allow water to flow back to the lake so that its good health is restored. For 150+ years, water rights holders have adhered to a “use-it-or-lose it” mindset. To survive, the region’s agricultural businesses will continue to prioritize profits…and consume water.

Utah law also treats the Great Salt Lake as property, not a living ecosystem with inherent rights to exist and evolve naturally. Property-owners hold rights to consume and destroy their property. Property itself possesses no rights.

Grassroots efforts to save our Great Salt Lake

While traditional cultures have always viewed the natural world and other-than-human creatures as kin, not property, legally, rights-of-nature is a new concept. As Elisabeth Robson writes, “only in a society separated from nature does ‘Rights-of-Nature’ make sense.” Enacting rights-of-nature would transform western legal systems to reflect traditional cultures’ wisdom—which safeguarded ecosystems until the Industrial Age.

Rights-of-nature laws would grant nature’s defenders the ability to challenge in court conduct that harms nature. Utah citizens could sue the Great Salt Lake’s offenders with claims that irrigation, diversion, and pollution violate its rights. They could ask courts to ban these activities, to protect the Lake, and to order those responsible for harm to pay for the Lake’s regeneration.

In 2023, a grassroots group, Save Our Great Salt Lake, drafted a resolution for the rights of Great Salt Lake. It declares that the Great Salt Lake is “a living entity, possessing fundamental rights”—including “the right to continued existence, the right to a water level sufficient to maintain ecosystem health, the right to sustain natural biodiversity, and the right to support a healthy balanced ecosystem.”

The rights listed in Save Our Great Salt Lake’s resolution are similar to “legal persons’” rights. Under American law, human individuals and corporations are legal persons with constitutional rights; and they can hold water rights. If anyone attempts to revoke those water rights (a corporation’s property), a corporation can invoke the 5th Amendment’s prohibition on seizure of property.

Granting legal personhood to the Great Salt Lake would conflict with water rights holders’ rights to consume and harm the Great Salt Lake. If an individual or group sued over water holders’ rights, the judge would quickly dismiss the case and possibly sanction petitioners for wasting the court’s and the corporations’ time. (In 2017, when I joined a lawsuit against Colorado’s Attorney General for violating the Colorado River’s rights, the judge threatened our group with sanctions. Rather than risk losing his license to practice law, our lead attorney withdrew the case.)

Efforts to protect Lake Erie

In August, 2014, at the peak of summer heat, an algae bloom in Lake Erie turned off water taps in Toledo, Ohio for four days. Over the next several years, residents gathered signatures and got the Lake Erie Bill of Rights (LEBOR) on the ballot.

In 2019, 61% of voters voted in favor of LEBOR.

Ohio’s legislators responded with House Bill 166, which declares that “No person, on behalf of or representing nature or an ecosystem, shall bring an action in any Ohio court.” Effectively, the state of Ohio banned rights-of-nature.

In 2021, a federal court also struck LEBOR down.

Lake Erie will likely experience another algae bloom. Since 2014, more of its fish have died every year. More mammals—including dogs—have died from drinking or swimming in Lake Erie’s water. 

Banning rights-of-nature

In March 2024, to protect property owners’ rights, Utah’s State Legislature enacted and Governor Spencer Cox signed into law House Bill 249. It states: “a governmental entity may not grant legal personhood to, nor recognize legal personhood in…a body of water, land…a plant” or “a nonhuman animal.” Essentially, HB 249 makes rights-of-nature illegal in Utah. Of course, Utah corporations remain legal persons.

Florida’s legislature has also banned rights-of-nature.

What next?

The actions taken by the Utah, Ohio and Florida legislatures are entirely predictable. We can’t expect those who profit from destroying the natural world to stand idly by while rights-of-nature threaten their profits.

Given these realities, protecting the Great Salt Lake—which, again, has only five years left at current rates of consumption—requires advocates to acknowledge that neither courts nor legislatures will protect it. Rather than waste time and energy in court, could advocates enforce nature’s rights themselves?

I’m inspired by the 100,000 Serbians who protest the British-Australian company Rio Tinto’s plan to mine lithium for “green transition” energy and electric vehicle batteries. The journal Nature claims that the mine would pollute water and endanger public health. Rio Tinto’s Chief Scientist, Nigel Steward and other researchers who conducted the company’s environmental impact assessments have demanded that the journal retract this paper. Meanwhile, after Serbian protesters took to the streets and blocked railways, President Aleksandar Vucic said that mining will not proceed until environmentalists’ concerns are satisfied.  

Biophilic lawyer and writer Will Falk works to advance the rights of nature with the Community Environmental Legal Defense Fund (CELDF). See his participation at Truth Reckoning & Right Relationship: Potential & Pitfalls with Rights of Nature, conducted by the Community Environmental Legal Defense Fund. Follow his work at willfalk.org.  

Stories by Katie Singer that feature Will Falk’s work:

What choices do we have when a corporation wants to do business?

How corporations can “take” endangered species…legally: a tutorial from environmental lawyer Will Falk

When Land I Love Holds Lithium: Max Wilbert on Thacker Pass, Nevada