Stream access group, recreationists pressing H.B. 37
February 19, 2014
The issue of stream access in Utah has historically pitted private property defenders against public access defenders. H.B. 37, a bill being proposed this year in the State Legislature, seeks to be a compromise between the two sides.
H.B. 37, sponsored by Rep. Dixon Pitcher (R-Ogden), would give members of the public access to all rivers and streams in Utah that, during ordinary high water, are capable of floating a boat or a six-foot-long, six-inch diameter log, even if such waterways cross private land.
The Utah Stream Access Coalition (USAC) supports H.B. 37, as it has been involved with two high-profile lawsuits over the past several years, one of which seeks a ruling stating that the Public Waters Access Act of 2010 violates public constitutional rights and the public trust doctrine. That lawsuit focuses on a section of the Provo River, while the other is centered on the Weber River.
In 2008, the Conatser v. Johnson decision of the Utah Supreme Court ruled that the public owns all water flowing in Utah rivers and streams and that it has an easement to use those waters by accessing them in a lawful manner (i.e. not trespassing).
In 2010, however, the Public Waters Access Act stated that the public is prohibited from even lawfully accessing waterways that cross private streambeds, unless the waterway can be fished while floating. USAC says this act, currently law in Utah, prohibits public access to 2,700 miles (43 percent) of rivers and streams in the state.
USAC board member Chris Barkey said the compromise that H.B. 37 proposes would be similar to that reached in Idaho in 1976.
"People shouldn’t have to ask permission to fish on land that the public owns," Barkey said. "[H.B. 37] is not going to diminish property values. Property owners have exclusive access to [a] waterway, but they don’t have the right to block the public from getting to that waterway."
If H.B. 37 is approved, USAC has said it will withdraw both lawsuits it is currently engaged in. Barkey stressed that the compromise will not only allow the public to use a waterway which can float a six-foot-by-six-inch log but will also recognize the boundaries to public easements.
Concerned outdoor recreationists gathered at the state Capitol last Tuesday to support H.B. 37. Barkey said the Legislature could be "heroes" for overturning a "bad law" in 2010’s H.B. 141, which prohibited recreational users from walking on a private riverbed without the landowner’s permission.
USAC points out that H.B. 37 would protect small streams on private property from public access and that landowners would have no loss of title to those streambeds open to public use. It would also leave intact their protections against liability, trespassing, vandalism and littering.
Barkey said that addressing the issue of public access of waterways is crucial, however, since public money is spent on flood mitigation, the stocking of fish, dams and culinary infrastructure, yet the public is not allowed to use those resources in many locations.
Membership in the USAC is 100 percent voluntary, Barkey said, and that the organization’s attorneys work pro bono. He added that, for the coalition, it’s "H.B. 37 or bust, or it’s more lawsuits" if the issue of stream access is not addressed.