This year, the Legislature has the opportunity to accomplish two different goals with one bill: correct a past wrong and put an issue to bed that has been festering for decades. HB37, sponsored by Rep, Dixon Pitcher, is, hopefully, the last time that stream access and recreational water use will occupy the legislative agenda.
First, a little history. In 2008 the Utah Supreme Court in Conatser v Brown ruled that the public had the right to engage in recreational activities that utilize water. This ruling specifically addressed stream access for people floating down a river or wading in the stream bed. This ruling complemented an earlier one in which it was stipulated that private landowners of a lake could not block public use of water if there was a public access point to the lake. In aggregate, the court affirmed that the public has the right to use the surface and content of state waters for recreational activities.
In 2010 HB141 was passed. This bill defied the court ruling and stripped the public of the access to public waters flowing over private land (access to public waters flowing over public lands remained unchanged). This law is currently under legal challenge.
In advocating passage, HB141 supporters generated a number of false arguments, claiming, for example, that Conatser allowed anglers to hike up the smallest dribbles of water on private land. They also implied trespass rules had changed and that anglers could hike over private fields and cut private fences to gain access to rivers.
They claimed that Conatser was an unjust taking of private land rights when instead it was simply an acknowledgement that the public had, in the past, been unjustly deprived of access.
This year HB37 is proposed as a compromise bill between legislative activists seeking to deprive Utah citizens of their recreational access to Utah public waters and Utah citizens (anglers, kayakers, rafters, bird watchers, etc) who are fighting for access.
HB37 states that rivers that are suitable for public recreational access must be large enough to accomplish that goal, defined by the question: Are they large enough to float a log six feet in length and six inches in diameter? Streams that cannot float such a timber remain off limits for public access since they are too small for recreation purposes. This simple definition has been used since 1976 to define Idaho stream use, a law that has generated little controversy.
Let us be clear what HB37 does not allow. It does not allow anyone access to a public water by trespassing over private land. Access to a river must be at a point of public domain such as a state road bridge over the river. HB37 does not allow an angler to wander up into private land from a stream: access is limited to the natural stream corridor. Landowners can run a fence across a stream but must do so as to not create an unreasonably dangerous condition, and must allow for use of a gate, ladder or other means to portage around the fence.
Public access does not include entry into private land via irrigation canals, ditches, or any impoundment outside of the natural stream channel.
HB37 puts in law what was the practical application of Conatser. The Conatser ruling was never meant to open a free-for-all raid of private lands. The sole interest of anglers and kayakers was and remains simply the recreational access to public waters. HB37 is a simple and straightforward solution to this issue and one that I hope the Utah Legislature will support.
John H. Weis is a member of the Utah Stream Access Coalition and a resident of Salt Lake County.
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