2nd Sub.
H.B.
187
RECREATIONAL USE OF PUBLIC WATERS ON PRIVATE PROPERTY
house floor
Amendments
Amendment 4 March 3, 2009 2:42 pm
Representative Lorie D. Fowlke
proposes the following amendments:
1. Page
1, Lines 19 through 20
:
19
. authorizes a person to engage in certain recreational activities in
{
specified
}
public
20
waters;
and
2. Page
1, Line 22 through Page 2, Line 27
:
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.
}
3. Page
2, Lines 36 through 37
:
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
}
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(1) Title 73, Chapter 27, State Water Development Commission, is repealed December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is repealed December 31, 2018.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(3) Title 73, Chapter 6a, Part 3, Recreational Access Board, is repealed July 1, 2015.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
}
2
.
Section
73-6a-101
is enacted to read:
7. Page
4, Line 100
:
100
Section
{
5
}
3
.
Section
73-6a-102
is enacted to read:
8. Page
4, Lines 103 through 117
:
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)
}
(2)
"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)
}
(3)
"Ordinary high water mark" means the line that a water body impresses on the soil:
9. Page
5, Lines 122 through 124
:
122
{
(7)
}
(4)
"Permission" is as defined in Section
23-20-14
.
123
{
(8)
}
(5)
"Private bed" means the bed of a water body that is not a navigable water body.
124
{
(9)
}
(6)
"Private water" means water that a person, with a valid right to use the water, has
10. Page
5, Line 127
:
127
{
(10)
}
(7)
"Property to which access is restricted" means real property:
11. Page
5, Line 137
:
137
{
(11)
}
(8)
(a) "Public water" means water:
12. Page
5, Line 143
:
143
{
(12)
}
(9)
"Recreational activity" means an activity that is:
13. Page
5, Line 148
:
148
engaging in an activity listed in Subsection
{
(12)
}
(9)
(c) for a recreational purpose; and
14. Page
6, Lines 153 through 166
:
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)
}
(10)
"Vessel" means a watercraft capable of floating and transporting a person on the
15. Page
6, Line 172
:
172
Section
{
6
}
(4)
.
Section
73-6a-201
is enacted to read:
16. Page
7, Lines 182 through 184
:
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
17. Page
8, Line 214 through Page 9, Line 273
:
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
}
(5)
.
Section
73-6a-203
is enacted to read:
18. Page
10, Line 276 through Page 14, Line 419
:
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
}
(6)
.
Section
73-6a- {
401
}
301
is enacted to read:
418
Part
{
4
}
3
. Miscellaneous
419
73-6a-
{
401
}
301
. Applicability of the chapter.
19. Page
14, Lines 424 through 425
:
424
Section
{
14
}
(7)
.
Section
73-6a- {
402
}
302
is enacted to read: