Second Substitute H.B. 187

Representative Ben C. Ferry proposes the following substitute bill:

1 RECREATIONAL USE OF PUBLIC WATERS ON PRIVATE
2 PROPERTY
3 2009 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Ben C. Ferry
6 Senate Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill enacts provisions relating to the recreational use of public waters that flow
11 over privately owned beds.
12 Highlighted Provisions:
13 This bill:
14 . defines terms;
15 . clarifies a provision relating to fencing;
16 . establishes a criminal penalty for:
17 . cutting a fence; and
18 . violating a provision in a part;
19 . authorizes a person to engage in certain recreational activities in specified public
20 waters;
21 . authorizes a person in certain circumstances to touch certain private beds beneath
22 specified public waters;
23 . specifies the public waters on certain private property in which a person may engage
24 in a recreational activity;
25 . creates a Recreational Access Board;

26 . establishes membership and duties for the Recreational Access Board; and
27 . establishes procedures for applications to the Recreational Access Board.
28 Monies Appropriated in this Bill:
29 None
30 Other Special Clauses:
31 This bill coordinates with H.B. 153, Trespass Law Amendments, by modifying
32 language.
33 Utah Code Sections Affected:
34 AMENDS:
35 4-26-4, as enacted by Laws of Utah 1979, Chapter 2
36 63-34-3, as last amended by Laws of Utah 1996, Chapter 159
37 63I-1-273, as last amended by Laws of Utah 2008, Chapters 148, 311 and renumbered
38 and amended by Laws of Utah 2008, Chapter 382
39 ENACTS:
40 73-6a-101, Utah Code Annotated 1953
41 73-6a-102, Utah Code Annotated 1953
42 73-6a-201, Utah Code Annotated 1953
43 73-6a-202, Utah Code Annotated 1953
44 73-6a-203, Utah Code Annotated 1953
45 73-6a-301, Utah Code Annotated 1953
46 73-6a-302, Utah Code Annotated 1953
47 73-6a-303, Utah Code Annotated 1953
48 73-6a-304, Utah Code Annotated 1953
49 73-6a-401, Utah Code Annotated 1953
50 73-6a-402, Utah Code Annotated 1953
51
52 Be it enacted by the Legislature of the state of Utah:
53 Section 1. Section 4-26-4 is amended to read:
54 4-26-4. Failure to close entrance to enclosure -- Class "C" misdemeanor --
55 Damages.
56 [Any person who willfully]

57 (1) A person is guilty of a class C misdemeanor if the person willfully:
58 (a) throws down a fence; or
59 (b) (i) opens bars or gates into any enclosure [other than] that is not:
60 (A) the person's own enclosure; or [into any]
61 (B) an enclosure jointly owned or occupied by [such] the person and others[,]; and
62 (ii) leaves [it] the enclosure open [is guilty of a class "C" misdemeanor, and is].
63 (2) A person is guilty of a class B misdemeanor if the person willfully cuts a fence.
64 (3) A person who performs an act described is this section is also liable in damage for
65 any injury sustained by any person as a result of [such an] the act.
66 Section 2. Section 63-34-3 is amended to read:
67 63-34-3. Department of Natural Resources created -- Boards, councils, and
68 divisions within department.
69 (1) There is created within state government the Department of Natural Resources.
70 (2) The Department of Natural Resources comprises the following boards, councils,
71 and divisions:
72 (a) Board of Water Resources;
73 (b) Forestry, Fire and State Lands Advisory Council;
74 (c) Board of Oil, Gas and Mining;
75 (d) Board of Parks and Recreation;
76 (e) Wildlife Board;
77 (f) Riverway Enhancement Advisory Council;
78 (g) Board of the Utah Geological Survey;
79 (h) Water Development Coordinating Council;
80 (i) Division of Water Rights;
81 (j) Division of Water Resources;
82 (k) Division of Forestry, Fire and State Lands;
83 (l) Division of Oil, Gas and Mining;
84 (m) Division of Parks and Recreation;
85 (n) Division of Wildlife Resources; [and]
86 (o) Utah Geological Survey[.]; and
87 (p) Recreational Access Board, created in Section 73-6a-301 .

88 Section 3. Section 63I-1-273 is amended to read:
89 63I-1-273. Repeal dates, Title 73.
90 (1) Title 73, Chapter 27, State Water Development Commission, is repealed December
91 31, 2018.
92 (2) The instream flow water right for trout habitat established in Subsection 73-3-30 (3)
93 is repealed December 31, 2018.
94 (3) Title 73, Chapter 6a, Part 3, Recreational Access Board, is repealed July 1, 2015.
95 Section 4. Section 73-6a-101 is enacted to read:
96 CHAPTER 6a. RECREATIONAL USE OF PUBLIC WATER
97 Part 1. General Provisions
98 73-6a-101. Title.
99 This chapter is known as "Recreational Use of Public Water."
100 Section 5. Section 73-6a-102 is enacted to read:
101 73-6a-102. Definitions.
102 As used in this chapter:
103 (1) "Bed" means an area that is:
104 (a) adjacent within five feet of a water body; and
105 (b) beneath the ordinary high water mark.
106 (2) "Board" means the Recreational Access Board created in Section 73-6a-301 .
107 (3) "Indian land" means land that is:
108 (a) held in trust by the United States for an Indian tribe or a member of an Indian tribe;
109 or
110 (b) owned by an Indian or Indian tribe and is subject to restrictions against alienation.
111 (4) "Indian tribe" means any Indian tribe, band, nation, pueblo, or other organized
112 group or community that is recognized as eligible for the special programs and services
113 provided by the United States to Indians because of their status as Indians.
114 (5) "Navigable water body" means a natural watercourse that is useful for commerce in
115 the water body's ordinary condition in the customary modes of trade and travel as of January 4,
116 1896.
117 (6) "Ordinary high water mark" means the line that a water body impresses on the soil:
118 (a) by covering the soil long enough to ordinarily deprive the soil of terrestrial

119 vegetation; and
120 (b) at the level where the water body would normally stand during the high water
121 period when the water body is not affected by a flood or drought.
122 (7) "Permission" is as defined in Section 23-20-14 .
123 (8) "Private bed" means the bed of a water body that is not a navigable water body.
124 (9) "Private water" means water that a person, with a valid right to use the water, has
125 reduced to actual, physical possession and exclusive control by placing the water in a
126 receptacle for storage or conveyance.
127 (10) "Property to which access is restricted" means real property:
128 (a) that is cultivated land, as defined in Section 23-20-14 ;
129 (b) that is:
130 (i) properly posted, as defined in Section 23-20-14 ; or
131 (ii) posted as described in Subsection 76-6-206 (2)(b)(iii);
132 (c) that is fenced or enclosed as described in Subsection 76-6-206 (2)(b)(ii); or
133 (d) that the owner or a person authorized to act on the owner's behalf has requested a
134 person to leave as provided by:
135 (i) Section 23-20-14 ; or
136 (ii) Subsection 76-6-206 (2)(b)(i).
137 (11) (a) "Public water" means water:
138 (i) described in Section 73-1-1 ; and
139 (ii) flowing on the surface:
140 (A) within a natural channel; or
141 (B) ponded in a natural lake or reservoir on a natural channel.
142 (b) "Public water" does not include private water.
143 (12) "Recreational activity" means an activity that is:
144 (a) lawful;
145 (b) engaged in:
146 (i) for a recreational purpose; or
147 (ii) a commercial purpose if a person is guiding or outfitting another person who is
148 engaging in an activity listed in Subsection (12)(c) for a recreational purpose; and
149 (c) one of the following:

150 (i) fishing;
151 (ii) swimming; or
152 (iii) floating on a vessel.
153 (13) (a) "Single family dwelling" means a structure constructed and customarily
154 occupied by one or more persons for the principle use as a single unit of residential housing.
155 (b) "Single family dwelling" does not include a:
156 (i) mobile home;
157 (ii) trailer;
158 (iii) duplex;
159 (iv) multi-unit apartment building;
160 (v) commercial structure;
161 (vi) outbuilding;
162 (vii) barn;
163 (viii) shed; or
164 (ix) structure with a purpose similar to the structures listed in Subsections (13)(b)(i)
165 through (viii), regardless of human occupancy.
166 (14) "Vessel" means a watercraft capable of floating and transporting a person on the
167 surface of the water, including a:
168 (a) boat;
169 (b) raft;
170 (c) canoe; or
171 (d) kayak.
172 Section 6. Section 73-6a-201 is enacted to read:
173 Part 2. Recreational Use of Private Beds
174 73-6a-201. Recreational use of public waters over private beds.
175 (1) Except as provided by Subsection (2), a person who touches a private bed is subject
176 to liability for trespass under:
177 (a) Section 23-20-14 ;
178 (b) Section 76-6-206 ; and
179 (c) a civil action for a claim arising out of touching the private bed.
180 (2) A person may engage in a recreational activity to the extent there is enough water to

181 support the recreational activity:
182 (a) on or within a public water:
183 (i) listed in Section 73-6a-202 ; and
184 (ii) located on or adjacent to property to which access is restricted; and
185 (b) by incidentally touching the bed of a public water described in Subsection (2)(a).
186 (3) While engaging in a recreational activity as authorized by Subsection (2), a person
187 may leave the bed if:
188 (a) the person has permission to leave the bed; or
189 (b) (i) an obstruction materially interferes with the recreational activity; and
190 (ii) the person walks or portages around the obstruction in the most direct and least
191 obtrusive manner to re-enter the public water at the nearest safe point above or below the
192 obstruction.
193 (4) Except as provided by Subsection (3), a person engaging in a recreational activity
194 as authorized by Subsection (2), may only enter or exit the surface or bed of a public water:
195 (a) on public property as authorized by the entity with jurisdiction over the use of the
196 public property;
197 (b) on private property that is not property to which access is restricted; or
198 (c) on private property if an easement or other lawful access is obtained.
199 (5) A person may not engage in a recreational activity authorized by Subsection (2) if
200 the recreational activity:
201 (a) destroys, damages, removes, or alters real or personal property, including a:
202 (i) fence, as provided in Section 4-26-4 ;
203 (ii) structure;
204 (iii) diversion works;
205 (iv) vegetation;
206 (v) soil; or
207 (vi) rock;
208 (b) alters or obstructs water flows;
209 (c) involves construction or maintenance of a structure on the bed; or
210 (d) is undertaken on:
211 (i) horseback;

212 (ii) a motor vehicle, as defined in Section 41-6a-102 ; or
213 (iii) an off-highway vehicle, as defined in Section 41-22-2 .
214 Section 7. Section 73-6a-202 is enacted to read:
215 73-6a-202. Public waters available for recreational use.
216 As authorized by Section 73-6a-201 , a person may engage in a recreational activity on
217 or in the following public waters, except where the public water flows over Indian land:
218 (1) Bear River from the Idaho state line in Cache County to the Great Salt Lake in Box
219 Elder County;
220 (2) Little Bear River from the outlet of Porcupine Reservoir downstream to Highway
221 30;
222 (3) Logan River from Highway 30 upstream to the United States Forest Service
223 boundary line in Logan Canyon;
224 (4) Price River from the confluence with the White River and Lower Fish Creek
225 downstream to the State Road 10 bridge;
226 (5) Jordan River from Utah Lake to the Great Salt Lake;
227 (6) Duchesne River from the Highway 40 bridge in Myton upstream to the United
228 States Forest Service boundary line the North Fork and West Fork of the Duchesne River;
229 (7) Strawberry River from the confluence with the Duchesne River upstream to the
230 Strawberry Reservoir dam;
231 (8) Sevier River from the confluence with Asay Creek south of the Highway 89 bridge
232 downstream to Yuba Reservoir;
233 (9) Weber River from the confluence with the Gardners Fork in Summit County near
234 the United States National Forest Service Road 138 downstream to the confluence with the
235 Ogden River;
236 (10) Bear River from the Wyoming state line east of Woodruff downstream to the
237 Wyoming state line northeast of Sage Creek Junction;
238 (11) Bear River from the Wyoming state line upstream to the confluence with the East
239 Fork of the Bear River;
240 (12) Provo River from Utah Lake upstream to the Soapstone Guard Station off State
241 Road 150 in Wasatch County;
242 (13) Ogden River from the Pineview Reservoir dam to the Great Salt Lake;

243 (14) South Fork of the Ogden River from Pineview Reservoir upstream to the Causey
244 Reservoir dam;
245 (15) Lower Sevier River from the Yuba dam downstream to Sevier Lake;
246 (16) White River from the Colorado state line in Uintah County downstream to the
247 confluence with the Green River;
248 (17) Blacksmith Fork River from the State Road 165 bridge upstream to Lions Hollow;
249 (18) Logan River from the Red Banks Campground to the Idaho state line;
250 (19) Currant Creek from the confluence with the Strawberry River upstream to United
251 States Forest Service boundary line;
252 (20) Lake Fork River upstream from the Highway 87 bridge to United States Forest
253 Service boundary line;
254 (21) Diamond Fork from the confluence with Spanish Fork River upstream to United
255 States Forest Service boundary line;
256 (22) East Fork of the Sevier River from the Garfield County and Kane County line to
257 the confluence with the Sevier River;
258 (23) East Canyon Creek from the confluence with the Weber River upstream to the
259 Interstate 80 bridge;
260 (24) Lost Creek from the Lost Creek Reservoir dam downstream to the confluence
261 with the Weber River;
262 (25) Thistle Creek from the confluence with Spanish Fork River upstream to the
263 confluence with Nebo Creek;
264 (26) Beaver River from Minersville Reservoir downstream to the State Road 130
265 bridge in Minersville;
266 (27) Spanish Fork River from Utah Lake to the confluence with Thistle Creek at the
267 Thistle mudslide dam;
268 (28) Fremont River from the State Road 24 bridge East of Loa to Capitol Reef National
269 Park;
270 (29) Huntington Creek from the United States Forest Service boundary line in
271 Huntington Canyon downstream to the State Road 10 bridge; and
272 (30) Lower Fish Creek from Scofield Dam to the confluence with the White River.
273 Section 8. Section 73-6a-203 is enacted to read:

274 73-6a-203. Penalty.
275 A person who violates this part is guilty of a class B misdemeanor.
276 Section 9. Section 73-6a-301 is enacted to read:
277 Part 3. Recreational Access Board
278 73-6a-301. Recreational Access Board -- Creation -- Membership.
279 (1) There is created within the Department of Natural Resources the Recreational
280 Access Board consisting of nine members appointed by the governor with the consent of the
281 Senate.
282 (2) The board shall consist of:
283 (a) one member of the general public; and
284 (b) members nominated by the following interests:
285 (i) one individual from among nominees of the Department of Agriculture and Food;
286 (ii) one individual from among nominees of an organization that promotes the
287 agricultural industry;
288 (iii) one individual from among nominees of an organization that promotes private real
289 property interests;
290 (iv) one individual from among nominees of the Division of Wildlife Resources;
291 (v) one individual who promotes floating on a vessel from among nominees of the
292 Division of Parks and Recreation;
293 (vi) one individual from among nominees of an organization that promotes sport
294 fishing;
295 (vii) one individual from among nominees of an organization that promotes
296 conservation districts; and
297 (viii) one individual from among nominees of an organization that promotes the
298 industry of outfitting a person to fish or float on a vessel.
299 (3) (a) Each nominating entity shall nominate at least two, but no more than four,
300 individuals to the governor for the applicable position or vacancy that occurs on the board.
301 (b) The candidates nominated under Subsection (2) and the members appointed by the
302 governor may not be:
303 (i) an employee of the nominating entity; or
304 (ii) a member of the Legislature.

305 (4) (a) Except as required by Subsection (4)(b), the governor shall appoint a member to
306 a three-year term.
307 (b) Notwithstanding the requirements of Subsection (4)(a), the governor shall, at the
308 time of appointment, adjust the length of terms to ensure that the terms of board members are
309 staggered so at least three members are appointed each year.
310 (c) If a vacancy occurs, the nominating entity shall submit a list of nominees as
311 provided in Subsection (3) to the governor and the governor shall appoint a replacement for the
312 unexpired term.
313 (d) A board member may serve two terms unless the governor determines an additional
314 term is necessary due to exceptional circumstances.
315 (5) (a) The board shall elect a chair and vice chair from its membership.
316 (b) Five members of the board shall constitute a quorum.
317 (c) A vote of the majority of the quorum at a meeting is necessary to take action on
318 behalf of the board.
319 (d) The executive director of the Department of Natural Resources or the executive
320 director's designee shall act as secretary to the board but is not a voting member of the board.
321 (6) (a) The board shall hold a sufficient number of meetings each year to expeditiously
322 conduct its business.
323 (b) A meeting may be called by the chair upon five days notice to the board members.
324 (c) A meeting may be held at the Salt Lake City office of the Department of Natural
325 Resources or elsewhere in the state as determined by the board.
326 (7) (a) (i) A member who is not a government employee may not receive compensation
327 or benefits for the member's service, but may receive per diem and expenses incurred in the
328 performance of the member's official duties at the rates established by the Division of Finance
329 under Sections 63A-3-106 and 63A-3-107 .
330 (ii) A member may decline to receive per diem and expenses for the member's service.
331 (b) (i) A state government officer and employee member who does not receive salary,
332 per diem, or expenses from the agency the member represents for the member's service may
333 receive per diem and expenses incurred in the performance of the member's official duties at
334 the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
335 (ii) A state government officer and employee member may decline to receive per diem

336 and expenses for the member's service.
337 (8) The governor may remove at any time a member for:
338 (a) official misconduct; or
339 (b) habitual or willful neglect of duty.
340 Section 10. Section 73-6a-302 is enacted to read:
341 73-6a-302. Recreational Access Board -- Authority -- Responsibility.
342 (1) The board shall determine if an application submitted under Section 73-6a-304
343 satisfies the criteria listed in Section 73-6a-303 .
344 (2) Based on the determination under Subsection (1), the board may recommend the
345 Legislature include or exclude a public water in the list provided in Section 73-6a-202 .
346 Section 11. Section 73-6a-303 is enacted to read:
347 73-6a-303. Criteria for a recommendation by the Recreational Access
348 Board.
349 (1) Upon application, the board may recommend the Legislature include a public water
350 in the list provided in Section 73-6a-202 if the public water:
351 (a) has a year-round water depth and flow capable of providing an opportunity to
352 engage in a recreational activity;
353 (b) (i) has historically provided and continues to provide significant opportunity for a
354 recreational activity for the public; or
355 (ii) (A) was closed to public access after May 12, 1989, by the owner of the property on
356 which the public water is located; and
357 (B) (I) was open to public access for at least 20 years prior to the closure described in
358 Subsection (1)(b)(ii)(A); and
359 (II) was freely, notoriously, and continuously used by the public:
360 (Aa) without permission of the owner of the property on which the public water is
361 located; and
362 (Bb) to an extent and under circumstances that the owner of the property on which the
363 public water is located would reasonably recognize the need to protect vulnerable property
364 rights;
365 (c) is of a nature that extending the authorization provided by this chapter will not
366 unreasonably impair the bed owner's property rights; and

367 (d) does not meet the description in Subsection (2)(b).
368 (2) Upon application, the board may recommend the Legislature remove a public water
369 or a segment of a public water from the list provided in Section 73-6a-202 if:
370 (a) the public water does not meet the criteria described in Subsection (1); or
371 (b) as of May 12, 2009:
372 (i) the public water is within the incorporated limits of a municipality;
373 (ii) legal public access, other than provided by this chapter, is not available on:
374 (A) the public water's surface;
375 (B) the public water's bed; or
376 (C) between the public water's bed and the single family dwellings described in this
377 Subsection (2);
378 (iii) four or more single family dwellings are located within a 150-yard segment of the
379 public water; and
380 (iv) each of the single family dwellings in Subsection (2)(b)(iii) is located 100 feet or
381 less from the bed.
382 Section 12. Section 73-6a-304 is enacted to read:
383 73-6a-304. Application and procedures.
384 (1) (a) A person may submit a written, signed application with the recreational access
385 application fee to the board petitioning to either include or exclude one public water segment
386 on or from the list provided in Section 73-6a-202 .
387 (b) The application shall contain the following information:
388 (i) the applicant's name, address, and phone number;
389 (ii) a detailed description of the one public water segment that is the subject of the
390 application, including the sections, township, and range where the public water is located;
391 (iii) a clear and concise statement identifying the relief sought;
392 (iv) an explanation of the facts and circumstances justifying the relief sought based on
393 the criteria provided in Section 73-6a-303 ; and
394 (v) the name and current address of each person or entity owning real property abutting
395 or underlying the segment of the public water that is the subject of the application.
396 (2) The recreational access application fee shall consist of:
397 (a) the fee set by the Department of Natural Resources under Section 63-34-5 ; and

398 (b) the actual cost of notification required by Subsection (3)(a).
399 (3) (a) Upon receipt of an application, the board shall notify by certified mail:
400 (i) each county or municipality in which the segment of the public water is located; and
401 (ii) each person owning real property abutting or underlying the segment of the public
402 water that is the subject of the application.
403 (b) The notice required by Subsection (3)(a) shall state that:
404 (i) the board has received an application; and
405 (ii) the recipient may file with the board a written response within 30 days of receipt of
406 the notice.
407 (c) The board shall schedule a meeting no sooner than 45 days following mailing of the
408 last notice required by this section where the board:
409 (i) shall allow the applicant to orally present facts and arguments to the board in
410 support of the application;
411 (ii) may accept and consider public comment at the meeting in support or opposition to
412 the application;
413 (iii) shall discuss and consider the responses submitted by a person described in
414 Subsection (3)(a); and
415 (iv) shall enter a decision consistent with the requirements of this chapter either to
416 grant, deny, or grant in part the relief requested in the application.
417 Section 13. Section 73-6a-401 is enacted to read:
418 Part 4. Miscellaneous
419 73-6a-401. Applicability of the chapter.
420 The provisions of this chapter do not affect:
421 (1) the title or ownership of the surface waters, beds, or portage routes of public water;
422 (2) sovereign lands, as defined in Section 65A-1-1 ; or
423 (3) the rights recognized in Section 23-21-4 .
424 Section 14. Section 73-6a-402 is enacted to read:
425 73-6a-402. Landowner liability.
426 An owner with a private bed that is subject to the authorization recognized in this
427 chapter has the liability protection afforded by Title 57, Chapter 14, Limitation of Landowner
428 Liability - Public Recreation.

429 Section 15. Coordinating H.B. 187 with H.B. 153 -- Modifying language.
430 If this H.B. 187 and H.B. 153, Trespass Law Amendments, both pass, it is the intent of
431 the Legislature that, in preparing the Utah Code database for publication, the Office of
432 Legislative Research and General Counsel shall modify:
433 (1) Subsection 73-6a-102 (10)(b) to read:
434 "(b) that is:
435 (i) properly posted, as defined in Section 23-20-14 ; or
436 (ii) posted as described in:
437 (A) Subsection 76-6-206 (2)(b)(iii); or
438 (B) Subsection 76-6-206.3 (2)(c);";
439 (2) Subsection 73-6a-102 (10)(c) to read:
440 "(c) that is fenced or enclosed as described in:
441 (i) Subsection 76-6-206 (2)(b)(ii); or
442 (ii) Subsection 76-6-206.3 (2)(b); or";
443 (3) Subsection 73-6a-102 (10)(d) to read:
444 "(d) that the owner or a person authorized to act on the owner's behalf has requested a
445 person to leave as provided by:
446 (i) Section 23-20-14 ;
447 (ii) Subsection 76-6-206 (2)(b)(i); or
448 (iii) Subsection 76-6-206.3 (2)(a)."; and
449 (4) Subsection 73-6a-201 (1) to read:
450 "(1) Except as provided by Subsection (2), a person who touches a private bed is
451 subject to liability for trespass under:
452 (a) Section 23-20-14 ;
453 (b) Section 76-6-206 ;
454 (c) Section 76-6-206.3 ; and
455 (d) a civil action for a claim arising out of touching the private bed.".