H.B. 290

1

RECREATIONAL USE OF PRIVATELY OWNED
2 STREAM BEDS
3 2010 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: R. Curt Webb
6 Senate Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill recognizes public recreational use of privately owned beds below public
11 waters.
12 Highlighted Provisions:
13 This bill:
14 . defines terms;
15 . allows public recreational use of private beds in connection with recreational
16 activities using public waters;
17 . addresses the scope of the public's right to use private beds;
18 . prohibits certain conduct in connection with the use of a private bed;
19 . provides a criminal penalty for a violation of provisions concerning public
20 recreational use of a private bed; and
21 . provides liability protections for the owner of a private bed.
22 Monies Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 None
26 Utah Code Sections Affected:
27 ENACTS:

28 73-6a-101, Utah Code Annotated 1953
29 73-6a-102, Utah Code Annotated 1953
30 73-6a-201, Utah Code Annotated 1953
31 73-6a-202, Utah Code Annotated 1953
32 73-6a-301, Utah Code Annotated 1953
33 73-6a-302, Utah Code Annotated 1953
34
35 Be it enacted by the Legislature of the state of Utah:
36 Section 1. Section 73-6a-101 is enacted to read:
37 CHAPTER 6a. RECREATIONAL USE OF PUBLIC WATER
38 Part 1. General Provisions
39 73-6a-101. Title.
40 This chapter is known as "Recreational Use of Public Water."
41 Section 2. Section 73-6a-102 is enacted to read:
42 73-6a-102. Definitions.
43 As used in this chapter:
44 (1) "Permission" is as defined in Section 23-20-14 .
45 (2) "Private bed" means a privately owned bed below a public water in the area actually
46 wetted by the public water.
47 (3) "Property to which access is restricted" means real property:
48 (a) that is cultivated land, as defined in Section 23-20-14 ;
49 (b) that is:
50 (i) properly posted, as defined in Section 23-20-14 ;
51 (ii) posted as described in Subsection 76-6-206 (2)(b)(iii); or
52 (iii) posted as described in Subsection 76-6-206.3 (2)(c);
53 (c) that is fenced or enclosed as described in:
54 (i) Subsection 76-6-206 (2)(b)(ii); or
55 (ii) Subsection 76-6-206.3 (2)(b); and
56 (d) that the owner or a person authorized to act on the owner's behalf has requested a
57 person to leave as provided by:
58 (i) Section 23-20-14 ;

59 (ii) Subsection 76-6-206 (2)(b)(i); or
60 (iii) Subsection 76-6-206.3 (2)(a).
61 (4) (a) "Public water" means water:
62 (i) described in Section 73-1-1 ; and
63 (ii) flowing on the surface:
64 (A) within a natural or realigned channel; or
65 (B) ponded in a natural lake, pond, or reservoir on a natural or realigned channel.
66 (b) "Public water" does not include:
67 (i) water flowing or collecting on private property in a manmade:
68 (A) irrigation canal;
69 (B) irrigation ditch; or
70 (C) impoundment or reservoir constructed outside of a natural or realigned channel; or
71 (ii) water in a public or private aquaculture facility, private fish pond, or fee fishing
72 facility.
73 (5) "Recreational activity" means an activity requiring the use of the water that is:
74 (a) lawful;
75 (b) engaged in for a recreational purpose; and
76 (c) consistent with the amount of water actually present at the time the activity occurs.
77 Section 3. Section 73-6a-201 is enacted to read:
78 Part 2. Recreational Use of Private Beds
79 73-6a-201. Recreational use of public waters over private beds.
80 (1) Except as provided by Subsections (2) and (7), a person who touches a private bed
81 without permission is subject to liability for trespass under:
82 (a) Section 23-20-14 ;
83 (b) Section 76-6-206 ;
84 (c) Section 76-6-206.3 ; and
85 (d) a civil action for a claim arising out of touching the private bed.
86 (2) A person engaged in a recreational activity in a public water that contains water at
87 the time of the recreational activity:
88 (a) may touch a private bed below the public water; and
89 (b) may not touch a public or private bed located in a public or private aquaculture

90 facility, private fish pond, or fee fishing facility.
91 (3) While engaging in a recreational activity as authorized by Subsection (2), a person
92 may enter private property from the area described in Subsection (2) only if:
93 (a) the person has permission to enter the private property; or
94 (b) (i) a manmade obstruction materially interferes with the recreational activity; and
95 (ii) the person walks or portages on private property around the manmade obstruction
96 in the most direct and least obtrusive manner to re-enter the public water at the nearest safe
97 point above or below the manmade obstruction.
98 (4) The owner of a private bed may place a fence across the public water.
99 (5) Except as provided by Subsection (3), a person engaging in a recreational activity
100 on a public water over a private bed, may only enter or exit the public water:
101 (a) on public property, including highway rights-of-way, other public water, or other
102 public property, unless prohibited by the entity with jurisdiction over the use of the public
103 property; or
104 (b) on private property with permission.
105 (6) A person may not engage in a recreational activity on a public water if the
106 recreational activity:
107 (a) destroys, damages, removes, or alters real or personal property, including:
108 (i) a fence, as provided in Section 4-26-4 ;
109 (ii) a structure;
110 (iii) a diversion works; or
111 (iv) vegetation, soil, or rock other than incidental to ordinary use;
112 (b) alters or obstructs water flows;
113 (c) involves construction or maintenance of a structure on the bed;
114 (d) is undertaken on:
115 (i) horseback;
116 (ii) a motor vehicle, as defined in Section 41-6a-102 ;
117 (iii) an off-highway vehicle, as defined in Section 41-22-2 ; or
118 (iv) a non-motorized wheeled vehicle; or
119 (e) occurs on a public water containing a natural obstacle that would require the person
120 to walk or portage over private property to avoid the natural obstacle if:

121 (i) the private property is property to which access is restricted; or
122 (ii) the person does not have permission to walk or portage over the private property.
123 (7) (a) Notwithstanding the access described in Subsection (2), nothing in this chapter
124 prohibits a person from acquiring or restricting access to a greater or lesser extent than
125 provided for in Subsection (2) under another provision of law.
126 (b) Notwithstanding Subsection (7)(a), the public has no right to an easement for
127 recreational activity on a private bed solely on the basis of the public's ownership of the public
128 waters.
129 Section 4. Section 73-6a-202 is enacted to read:
130 73-6a-202. Penalty.
131 A person who violates this part is guilty of a class B misdemeanor.
132 Section 5. Section 73-6a-301 is enacted to read:
133 Part 3. Miscellaneous
134 73-6a-301. Applicability of the chapter.
135 The provisions of this chapter do not affect:
136 (1) the title or ownership of the surface waters, beds, or portage routes of public water;
137 (2) sovereign lands, as defined in Section 65A-1-1 ; or
138 (3) the rights recognized in Section 23-21-4 .
139 Section 6. Section 73-6a-302 is enacted to read:
140 73-6a-302. Landowner liability.
141 An owner with a private bed that is subject to the authorization recognized in this
142 chapter has the liability protection afforded by Title 57, Chapter 14, Limitation of Landowner
143 Liability - Public Recreation.




Legislative Review Note
as of 2-2-10 8:28 AM

Office of Legislative Research and General Counsel