Thursday, November 5, 2009

New Stream Access Bill

A few days ago, I received the first draft of a bill regarding recreational access to streams that could be introduced in the 2010 legislative session. This bill is being sponsored by Representative Lorie Fowlke (R-Orem). The bill is a "starting point for discussion" and will likely see some changes prior to being introduced in the 2010 legislative session, but I wanted to provide a brief summary of the bill as it currently stands.

In July 2008, the Utah Supreme Court issued its decision in Conatser v. Johnson. The court held that members of the public may enter a stream at a public access point and follow the stream through private land to float, hunt, fish, swim, or do any other recreational activity that utilizes the water without committing trespass.

In the 2009 legislative session, Representative Ben Ferry (R-Corinne) introduced House Bill 187. Under the bill, the public would be allowed to engage in recreational activities in rivers that cross private property only if the rivers are designated “public waters." The bill contained an initial list of "public waters" that could be amended by a recreational access board. The bill faced some stiff opposition, and was ultimately defeated in the House.

Since the 2009 session, Representative Fowlke has been working with many of the interested parties to craft a new bill. Here are some "highlights" of the bill:

-Persons engaged in recreational activities are permitted to touch a private bed under public waters (natural streams, rivers, lakes, etc.). Unlike the 2009 bill, this bill does not limit access to only larger rivers and streams. There is a limitation, however, that the recreational activity must be "consistent with the amount of water actually present at the time the activity occurs."

-The "bed" of a stream is defined as the area that is beneath the ordinary high water mark and within five feet of the water body. Thus, under the bill, a fisherman does not have to have "wet feet" to avoid trespassing. Some landowners do not like this definition, and want to see the defintion of "bed" changed to be only the part of the bed that is actually covered by water.

-A person may enter private land to portage around manmade obstructions (e.g., fences), but may not enter private land to portage around natural obstacles (e.g., boulders).

-Hunting is specifically excluded as a recreational activity.

-Each person who purchases a fishing license must purchase a $5.00 public access stamp. The money obtained will be used to stock fish, enforce public access laws, educate the public about public access laws, and construct fence ladders and other improvements to fences across public waters. The public access stamp requirement is already raising some protest, and could be removed from the bill.

Overall, Representative Fowlke's bill is a vast improvement from the 2009 bill, but may still face opposition and may see many changes prior to and during the 2010 legislative session.

If you would like to view the draft bill, it is availabe here.

No comments: