Stream access fight will not be resolved by Legislature
March 4, 2014
A bill that would have resolved the fight between private property owners and those seeking to access public waterways for recreation is seemingly dead in the State Legislature. The bill’s main advocate, the Utah Stream Access Coalition (USAC), said it will be forced to turn to litigation to resolve issues related to stream access.
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.
USAC board member Chris Barkey said he was informed by House Majority Whip Gregory Hughes (R-Draper) that H.B. 37 would essentially not advance beyond the House Rules Committee. Barkey said he was told the bill would not advance because of ongoing USAC litigation, but he said, in his personal opinion, that it would not be heard because it’s an election year.
USAC 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.
Barkey said USAC had been trying to offer a compromise between those wishing to access public waterways (for which tax dollars are used to fund flood mitigation as well as the stocking of fish, dams and culinary water infrastructure) and private property defenders.
"We’re past the point of trying to offer compromise," Barkey said. "I’m done wasting time with the members of the Legislature and myself. Our attorneys will do an admirable job in the courts."
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USAC President Kris Olson said it is "disappointing" that H.B. 37 will not advance and added that any long-lasting solution to stream access will have to come from the Legislature eventually.
"What H.B. 37 sought to do is end this fight. We looked at successful models in states nearby. Idaho has had this law on the books since 1976 and it’s only been contested once," Olson said.
In 2010, 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.
That act nullified a Conatser v. Johnson decision of the Utah Supreme Court, which 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).
Olson stressed that the stream access fight will continue, and that USAC has support from many facets of the outdoor industry community and its membership is growing. Barkey said it is "humbling to watch how 15 rural legislators can control an entire [political] body."
"It’s freedom, it’s sustenance, it’s pleasure, it’s peace of mind, it’s quiet time, it’s recreation with your children, it’s the love of nature, it’s hearing the songbird, it’s watching the snakes, it’s watching the bugs get eaten by the fish, it’s all a big cycle of great time with your family and your friends, and they’re taking it away," Barkey said.