Tour of water with Legislature

Chris brings us another update from the field.

We met at the Sinclair in Wanship around 2PM.

Attendees -
Representatives-Ferry, Fowlke & spouse, Draxler, Allen & spouse & Powell
DWR-Walt Donaldson, Robin Thomas, Clint ??? (Started DWR walk in access program)
Farm Bureau-Sterling Brown
TU-Bob Diblee
URC-Gwen & Bob Springmeyer
Kayakers-Jeff Salt & Rep. Allen (her son is Kayaker)
Landowners-Michael Cornu & Mr Grow from the Weber between Rockport and Brown’s Canyon
Anglers-Cary & I (Chris Barkey)

We left at 2:15 to head over to the Weber east of Wanship to show access ladders and bridge access.

The DWR handed out literature on varying walk in access programs from the CUP, DWR WIA, Rehabilitation access, etc. They spoke at length regarding the compensation and the benefits. We started on a tailwater that was more an irrigation ditch to distinguish that “ordinary high water mark” vs. freestone, like the upper Weber or Provo.
Mr. Cornu asked if we would allow the group the time to stop at a residence in Brown’s Canyon and we obliged for the sake of compromise. Mr. Grow and Mr. Cornu had compelling stories regarding private property rights but nothing that helped define the “easement” itself. If anything the stop helped our case in regards to the needs of enforcement being enhanced. We encouraged the landowners to have people cited for trespass but that couldn’t happen effectively until the easement was defined. The DWR defended the ability to educate anglers on the easement and we re-enforced that with the education citations would provide.

With limited time we hurried to the vehicles and headed over to the Upper Provo. We parked roadside and had to walk to the “highway right of way” easement issue. We were able to identify locations that would be accessible to the public and answer further questions about “ordinary high water mark” vs. “wet boot”.
Farm Bureau kept asking how we could say “ordinary high water mark” was what the previous laws “streambed” verbiage meant when they believe it is the “water”. My only reply is they used the words “stream bed” not “water”, they do mean something entirely different. My best guess is they would have used the word “water” if it was water they meant…does that make any sense??

With many questions answered the DWR had to scoot but Rep. Fowlke still wanted to see the Victory Ranch issue. We were again able to show the access issue, the portage of “natural obstructions” and how they change and the “ordinary high water mark”, in a clear and concise manner.

We didn’t get to show much in the way of manmade obstructions like fences but the issue is on their minds and the portage is necessary.
We had multiple dialogues from lots of voices on the issue of funding to accomplish the tasks that would be necessary with this legislation. The DWR is taking this issue seriously and I believe the kayakers are starting to watch it very closely, so there should be some great topics in the near future.

I did ask Rep. Fowlke to seriously consider just defining the easement itself and worry about the funding issues separately or in other words APPROPRIATE appropriately. Overall I think the process helped and there are some opportunities ahead of us all.
Many photographs were shot by Rep. Fowlke’s husband, I hope he shares them with me so I can post them here and you can see how good I looked in my gear.

-          Chris Barkey

MEETING UPDATE – 10/31…..Notes from Chris Barkey

re: recreational us of water over beds

There was a new draft presented in print but not it’s not available for the web yet.

Marty Bushman addressed concerns of the DWR regarding the fee issue and about funding. Jim Karpowitz stated a survey has been sent out to 40K anglers and they would like all language regarding funding excluded until they receive those results. The question is in regards to a $1.00 license increase I believe. I did mention that the funding may already exist in regards to the Gov. appointed Blue Ribbon Advisory Council. The avg. costs from Montana/Idaho showed at near $200.00 per project I would say the dollars needed measured around 40k to complete, based on 2000 projects. The BRAC has spoken often on the record about being able to throw money at these projects and, maybe,  here is their chance. It is going to get looked into.

The other topic was the actual user paying a fee but there seemed to be difficulty in thoughts on how to capture kayakers, birders, etc. with a fee and the fact it may not be necessary. Add all that to the DWR WIA program and other funded access areas and walla.

The issue of wet boot was still a hot topic for landowners but the new definition of bed was beneath ordinary high water mark. There will be no navigability definition and the definition of private bed will be changed to reflect existing code if I understood them correctly. There will also be no definition of a vessel. They still try to define public/private water, but there was not much discussion on those topics due to time. But I will address them at the next meeting.

With “Bed” being defined I personally see no reason to define public or private water being that private water is not in question. It is what is captured by shares. Whether that be for irrigation or home use I don’t think is a question.

The definition of recreational activity was another fun topic. There was an addition from the last draft about ingress and egress with a 5′ limit from the water. I believe it will not be in the next draft being unnecessary and in direct conflict with the definition of a “Bed”.

The hunting issue was a big topic in the sense of where water fowlers are divided….Public hunting vs. Private hunt clubs.

That is about the gist, there is another meeting scheduled and there will be another draft so I will do my best to update you as soon as I can.

- Chris Barkey

The First Draft

On October 12^th 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