The First Draft
On October 12th Representative Lorie Fowlke (of Orem) released a first draft of possible legislation regarding the easement recognized in Conatser v. Johnson, the landmark decision by the Utah Supreme Court recognizing a public easement to utilize water by the touching of privately owned stream beds. A meeting was held the following day with all stakeholders present to discuss the bill. Representative Fowlke acknowledged that this was only an attempt to put the collective thoughts on paper, and it’s only a starting point working towards what will hopefully be a quality streambed bill this legislative session.
Some of the major issues discussed were that hunting was excluded as a legal recreational activity under the easement. The language was sticky and many unexpected consequences could result. It will definitely be re-worked, but hunting is still at danger of being excluded.
Portage was also discussed at length. This draft of the bill allows for man-made obstacles to be portaged, but not natural obstacles. This raised a question for boaters who encounter a fallen tree that was not there the day before; going back upstream isn’t an option. The history of portage, being designed for natural obstacles was also raised, but Representative Fowlke raised concerns with that. She stated she liked the idea of taking the river as you find it as a compromise with portage.
There was also proposed a mandatory $5 public access stamp for anyone who purchases a fishing or combination license to help offset costs associated with portage, and public access in general (IE- enforcement, public education, etc). The DWR expressed concerns over the increase of costs for all, when only a small percentage will access these specific waters. The DWR will be doing a survey with anglers to find out the public feeling. Is it fair for a $1 increase for all anglers or should the small percentage of anglers who will utilize this easement have to foot the cost at a much larger price tag? It’s certainly something to think about.
The meeting ended with the debate about what the streambed should be. Landowners are asking for it to be wet boot. And if not wet boot, wet boot plus 5 feet from the water. Anglers and others are asking for the area within the ordinary high water mark. This definition is consistent with other western states that have tackled this easement issue. And it’s also easier to enforce than any of the other definitions. This is the best definition for all involved.
There is a tour scheduled for next week with representatives, anglers, landowners, and the DWR to see first hand the issues involved in this legislation. We’re hoping to show how cooperative easements have worked in many places already around the state. We’re hoping this hands on experience will do good things for this legislation, as many of the representatives have not seen any of the places they are being asked to discuss.
Overall it was a good start to the bill. A lot of language was taken from Ben Ferry’s bill HB 187 last year. That was problematic for many, as that bill was just plain and simply a bad bill. We are hopeful that we can get away from using that as a template, and just start new. A sub-committee was formed and future meetings will be held to continue shaping this important legislation prior to the 2010 legislative session.
Draft PDF –>Fowlke Access Bill