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February 18, 2010

Utah Water Guardians

Info taken from Utah Water Guardians website.

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Vote No H.B. 141


Vote Yes H.B. 80


House Bill 141 (Rep. Kay McIff) seeks to overturn the Utah Supreme Court’s ruling(Conatser 2008) which recognized the public’s right to access the streambeds of public waters on private property for lawful recreational activities. The state’s constitution declares, “The waters of the state are owned by the public.” This principle was codified by the Legislature over 100 years ago in the state’s water code which reads, “All waters in the state whether above or under the ground are hereby declared to be the property of the public.” For decades, the Utah Supreme Court has upheld this principle ruling that, “Title to Utah’s waters belongs to the public who are equal owners of the waters flowing in natural channels.” In 2008, the Utah Supreme Court ruled that the public cannot exercise its right to full enjoyment of public waters without having access to streambeds – meaning the state’s streams are open to the public for legal recreational use.

Key Provisions of H.B. 141

  • Abolishes Supreme Court’s ruling that a public easement exists to access streambeds for recreational purposes.
  • Denies public access to public streams on private property except by permission or after quiet title action for floating, fishing or hunting waterfowl as provided by state law, but not within 100 yards of any dwelling.
  • Except by permission or quiet title, a person accessing a streambed on private property is trespassing.
  • Quiet Title: In order to access a streambed on private property, a person must file a lawsuit against the landowner claiming that a prescriptive easement exists. The bill requires that the stream on private property must have been open to public recreational use for at least 10 consecutive years after September 22, 1972 and that the use must have been (a) continuous, (b) open and notorious, (c) adverse [contrary to the landowner’s interest] and (d) without interruption. If quiet title is obtained, recreational users can access the streambed and private property 3 feet above the bank. The quiet title action standards outlined in H.B. 141 make it very difficult, if not impossible, to obtain a quiet title.
  • Contains several declarations of policy, all designed to protect the bill against judicial intervention.

House Bill 80 (Rep. Lorie Fowlke) upholds the Utah Supreme Court’s ruling(Conatser 2008). In the spirit of cooperation, Rep. Fowlke held a series of public meetings that included landowners, farmers, ranchers, fishermen, rafters, kayakers and hunters to develop a compromise bill that addressed the concerns of all parties involved.

Key Provisions of H.B. 80

  • Upholds Supreme Court’s ruling: public has an easement to access streambeds for lawful recreational purposes.
  • Access is limited to the bed below the ordinary high water mark. Access does not extend above this mark if the stream is in flood stage. Access also requires sufficient water for the recreational activity. (Not enough water to fish or float, no access.) If the ordinary high water mark is not discernable, then access is limited to “wet feet.” Access also requires completion of a Division of Wildlife Resources program and certificate of access permit in order to use access.
  • Access is restricted to entry from public property or public water (unless prohibited by the public property owner) or with the permission of a land owner.
  • Portage: Anglers may exit the stream onto private property in the most direct and least intrusive path around a manmade obstacle for fishing. Floaters may exit the stream onto private property in the most direct and least intrusive path around both manmade and natural obstructions.
  • Fencing is allowed across streams unless done to prohibit recreational users. Fencing can’t be done to unreasonably endanger the public. If landowners fence along a public road or access point, they are required to provide a gate or fence ladder to allow public access to the stream.
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