# Water Bill__Draft #3



## F/V Gulf Ventur (Oct 8, 2007)

New Draft from Rep. Fowlke is out. I'll update some changes after the meeting at the Capitol today.

How can I attach the PDF??? 
I get this error---_The extension pdf is not allowed._ & _The extension wpd is not allowed._

you can download it from here -- http://www.utahonthefly.com/forums/showpost.php?p=244154&postcount=1


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## Nor-tah (Dec 16, 2007)

Cool Bry, I like it!! Are we the only state to try this access stamp if it passes? Kinda cool! Its super cheap at 1.3 cents per day.


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## F/V Gulf Ventur (Oct 8, 2007)

I believe the access stamp will be removed this afternoon, as funds have been found to take care of this issue.... There is a meeting going on right now (at work or I'd be there) so we will see what happens.

So far, it looks OK... I do not like any language that was in the illegal HB 187 bill.


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## Nor-tah (Dec 16, 2007)

Good stuff. You guys have had crazy success with the donations. I still need to throw in a few bucks. I'm at school but will soon.


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## Dodger (Oct 20, 2009)

F/V Gulf Ventur said:


> I believe the access stamp will be removed this afternoon, as funds have been found to take care of this issue.... There is a meeting going on right now (at work or I'd be there) so we will see what happens.
> 
> So far, it looks OK... I do not like any language that was in the illegal HB 187 bill.


Good news. I hate all the stamp nonsense.

I also don't trust politicians with money. It starts with a $5 stamp and then it becomes a cash cow for the legislature. Then the money for a public access stamp starts going to putting extra salt on roads in the winter.


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## F/V Gulf Ventur (Oct 8, 2007)

Nor-tah said:


> Good stuff. You guys have had crazy success with the donations. I still need to throw in a few bucks. I'm at school but will soon.


Yes and no... we have reached the half-way mark, which is so awesome!!

BUT the downside is..... the donations have come from the few, not the mass - TU/Stonefly society, William Joseph (fishing company) and a few select very giving individuals. So we are really trying to rally all 400,000 of the angling troops. Not sure if the kayak guys or the waterfowl dudes will join into help here, but we are hopeful!.... as we are ALL fighting for ALL water users for a common sense compromise.

Thanks!!!!...send whatcha can, any amount really helps...$5, 10, 25 bucks.


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## F/V Gulf Ventur (Oct 8, 2007)

Dodger said:


> F/V Gulf Ventur said:
> 
> 
> > I believe the access stamp will be removed this afternoon, as funds have been found to take care of this issue.... There is a meeting going on right now (at work or I'd be there) so we will see what happens.
> ...


Good point and I do agree... I'll keep ya posted.


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## FishMogul (Sep 8, 2007)

F/V Gulf Ventur said:


> [quote="Nor-tah":2vdqvb49]Good stuff. You guys have had crazy success with the donations. I still need to throw in a few bucks. I'm at school but will soon.


Yes and no... we have reached the half-way mark, which is so awesome!!

BUT the downside is..... the donations have come from the few, not the mass - TU/Stonefly society, William Joseph (fishing company) and a few select very giving individuals. So we are really trying to rally all 400,000 of the angling troops. Not sure if the kayak guys or the waterfowl dudes will join into help here, but we are hopeful!.... as we are ALL fighting for ALL water users for a common sense compromise.

Thanks!!!!...send whatcha can, any amount really helps...$5, 10, 25 bucks.[/quote:2vdqvb49]

Bryan is there a deadline for when the money is needed to be raised? or possibly a date they would like to have it by?


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## F/V Gulf Ventur (Oct 8, 2007)

Deadline is before the end of the up-coming session.


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## F/V Gulf Ventur (Oct 8, 2007)

*some changes to draft #3 as of 5:30pm 11/12*

- license increase is out
- no stamp
- will need a permit to access public water over private bed... its a educational course. You will need to have the 'permit' on your person.

a few other things have been changed as well, I will post them as they come in.


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## Dodger (Oct 20, 2009)

Does the permit apply solely to those crossings that are over public land? For example, only those people that are crossing public land are required to have the permit?


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## F/V Gulf Ventur (Oct 8, 2007)

Dodger said:


> Does the permit apply solely to those crossings that are over public land? For example, only those people that are crossing public land are required to have the permit?


Only apply to "public water over private beds"... make sense? I know all this language is a bit confusing. Let me know and I will try to clarify.

So, take the Upper Provo, most of it is "public water over private beds", you'd need the permit.


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## F/V Gulf Ventur (Oct 8, 2007)

*From Chris Barkey.....*

I wish I had voice recognition software for this but here it goes....todays events chronologically.

Jeff and I met with BRFAC at 10 this morning and we got a committment of 20K and a TU match of 2K to apply strictly to this stream access issue, ie. ladders, stiles, signage, maintenance, etc. I brought this message to the meeting and they all liked the commitment.

@ 2 today the sub-committee met and there were drastic changes.

The DWR survey showed what was expected, not enough support from anglers to warrant an increase. The losses of license sales creates a bigger loss in revenue than gain because of the increase and potential losses of matching federal funds. The language in paragraphs
23-19-17, 23-19-21, 23-19-21.1 are no longer in the language. I will wait until we get a full report from their outsourced analysis to go into DWR numbers in detail. Southwick is the group doing the analytics and when they get them back we are supposed to get the full report so I won't bore you with #'s.

Those above parts of the draft will be replaced with a provision for a user permit. This entails education, printing and carrying on your person when recreating. It is not just for anglers, kayakers, birders, waterfowl hunters, etc will all be required to take it or risk an infraction. There is no cost other than time spent. Bryan and I brought this idea straight to Ben Ferry last year and got blown off like the Prairie wind. He had no interest in it. Today Marty Bushman brought it up and everyone liked the idea. There was no one that spoke against it.
We started on the definitions next.
*
page 4*
1 "Bed" means an area within the ordinary high water mark of a public water. (replaced beneath) Farm Bureau really wants wet boot and is threatening to fight the bill over this but Rep. Fowlke delivered a clear message..that we shouldn't waste any more time over this then, I'm sure the anglers will live with Conatser. She said, "I will not do the dog and pony show up there this year like what happened last year." "I want to take this bill to the Natural Resource Committee with a consensus or I won't do it." Sterling committed to going to Farm Bur. delegates at their meeting next week and seeing where they stand but as of now he says it is a deal breaker.

3 loittering-a&b gone. line (f) on page 8 is also gone. Landowners didn't like it even though they wanted it 2 months ago. There is a reason for this but it is about their strategy. Sly! but I did call them on it and got no responce of value.

6 private bed- will have some pronoun changes and some re arrangement, but they didn't say what.

7 Private water - gone
*
page 5*
8 added private before property at the beginning
9 (a)public water
ii changed to flowing or collecting on the surface of land
B ponded removed and replaced with or in a ....
b Public water does not include canals, irrigation ditches,
*
page 6*
ii ingress eggress- gone including A/B below
73-6a-201 will have various clean up on making language consistent with definition changes.
73-6a-202 will be about the permit not penalty

The 2 main hot topics were the OHWM and then late the portage over man made obstructions, Farm Bur again decided to not agree with ladders out side the OHWM, with a lot of dialogue the topic became redundant and I would have to say some people (FB)are arguing for the sake of doing it. It's either that or they just don't get it. Jeff is going to set up a meet with FB higher ups.

Chris Parker promised an updated draft by next Friday and we are not meeting again until Dec. 4th.

I had to leave at 5:20, to pick up boy but Jeff said it soon ended. I had enough for the day.
If anything else comes to me I will put it here. Any questions please ask.
Reply With Quote


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## Catherder (Aug 2, 2008)

First off, Good work Bryan and Chris! Thanks for all that you have done.

A few random comments;



F/V Gulf Ventur said:


> - will need a permit to access public water over private bed... its a educational course. You will need to have the 'permit' on your person.


I like this! The subject material will cover the rules governing access and use of "public water over private beds". Users will need to know the rules to pass the test and then use these areas. I would think that landowners would like this as it would confer some level of protection to them from users ignorantly committing violations.



F/V Gulf Ventur said:


> Jeff and I met with BRFAC at 10 this morning and we got a committment of 20K and a TU match of 2K to apply strictly to this stream access issue, ie. ladders, stiles, signage, maintenance, etc. I brought this message to the meeting and they all liked the commitment.


Money well spent. excellent!



F/V Gulf Ventur said:


> The DWR survey showed what was expected, not enough support from anglers to warrant an increase. The losses of license sales creates a bigger loss in revenue than gain because of the increase and potential losses of matching federal funds. The language in paragraphs
> 23-19-17, 23-19-21, 23-19-21.1 are no longer in the language. I will wait until we get a full report from their outsourced analysis to go into DWR numbers in detail. Southwick is the group doing the analytics and when they get them back we are supposed to get the full report so I won't bore you with #'s.


No surprise here, although I do feel support for a small fee applied only to users could fly if we are truly out of funds for "Conatser" projects. As we have discussed previously, the Blue Ribbon funds likely can be enough. That anglers would resist $10 and $50 levies, possibly applied to every angler, is a no brainer IMO.



F/V Gulf Ventur said:


> It is not just for anglers, kayakers, birders, waterfowl hunters, etc will all be required to take it or risk an infraction. There is no cost other than time spent.


Very good that all users, not just anglers will be required to take the test.



F/V Gulf Ventur said:


> page 4[/b]
> 1 "Bed" means an area within the ordinary high water mark of a public water. (replaced beneath) Farm Bureau really wants wet boot and is threatening to fight the bill over this but Rep. Fowlke delivered a clear message..that we shouldn't waste any more time over this then, I'm sure the anglers will live with Conatser. She said, "I will not do the dog and pony show up there this year like what happened last year." "I want to take this bill to the Natural Resource Committee with a consensus or I won't do it." Sterling committed to going to Farm Bur. delegates at their meeting next week and seeing where they stand but as of now he says it is a deal breaker.


Great. This is the definition we are hoping for that will be the easiest to understand and enforce. I struggle to see why the Farm bureau would be so opposed to OHWM. Posturing??



F/V Gulf Ventur said:


> page 5[/b]
> 8 added private before property at the beginning
> 9 (a)public water
> ii changed to flowing or collecting on the surface of land
> ...


I have no problem with this.



F/V Gulf Ventur said:


> The 2 main hot topics were the OHWM and then late the portage over man made obstructions, Farm Bur again decided to not agree with ladders out side the OHWM, with a lot of dialogue the topic became redundant and I would have to say some people (FB)are arguing for the sake of doing it. It's either that or they just don't get it. Jeff is going to set up a meet with FB higher ups.


Obviously, there is a ways to go, but each succeeding version seems more fair and concise. It also seems to me that the objections raised by the opposition seem more weak with each iteration of the bill.


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## wyoming2utah (Sep 12, 2007)

What about portage around obstacles that are NOT man made? For example, if the area between the ordinary high water mark is impassable can you leave the high water mark to go around an obstacle?


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## Nor-tah (Dec 16, 2007)

I really like the online course thing. That will instil some responsibility.


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## fishsnoop (Apr 3, 2009)

wyoming2utah said:


> What about portage around obstacles that are NOT man made? For example, if the area between the ordinary high water mark is impassable can you leave the high water mark to go around an obstacle?


No. If it is unposted then yes but if it is properly posted you can not.


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## Dodger (Oct 20, 2009)

I admit that I did not read everything with a fine toothed comb, but I understood this new permit to be something that you needed to gain access to the water, not something that you would need to be on the water.

I understand the thought, but this is a little revolutionary to license people to be in publicly owned area. It would be more conventional to license people to ingress and egress over certain private access points.

Also, my understanding of property rights in Utah leads me to understand that everything below the high water lines is the property of the State. If that is the case, then why do you need a license to be on public property?

Also, what happens if you gain access to a body of water in an area owned by the state and then use the water to get to an area of a stream, for example, that borders private property? If the state owns the stream, and you entered the stream through public property, why is a license necessary to move to another part of the public property?

Correct me if I'm wrong, but so long as you stay in the water, haven't you always been able to stay inside the high water lines to move anywhere along the water? If so, then why the new license? What is the public getting out of this deal except more hassle in getting a license?

I applaud the efforts to increase access and I think it is a great thing to license people to access bodies of water across private lands. Landowners deserve that. But, I don't see the point in licensing people to be on public property.

Am I missing something?


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## F/V Gulf Ventur (Oct 8, 2007)

Dodger said:


> I admit that I did not read everything with a fine toothed comb, but I understood this new permit to be something that you needed to gain access to the water, not something that you would need to be on the water.


Both, only if it applies to previously "private" waters or in other words, public water over private stream beds.



Dodger said:


> Also, my understanding of property rights in Utah leads me to understand that everything below the high water lines is the property of the State. If that is the case, then why do you need a license to be on public property?


Kinda.... only applies to public water over private stream beds.



Dodger said:


> Also, what happens if you gain access to a body of water in an area owned by the state and then use the water to get to an area of a stream, for example, that borders private property? If the state owns the stream, and you entered the stream through public property, why is a license necessary to move to another part of the public property?


You would need the permit if you entered from a public bed to a private bed, all water is State water... public.



Dodger said:


> Correct me if I'm wrong, but so long as you stay in the water, haven't you always been able to stay inside the high water lines to move anywhere along the water? If so, then why the new license? What is the public getting out of this deal except more hassle in getting a license?


Yes.... new permit is to be proactive since the USC ruling. There was a lot of talk last year about the new freedoms we were finally granted. In order to show the state and private property owners that the people are taking this serious and in order to avoid this fight every year (it will be ever year if we can't agree) education needs top take place. There have been way too many trespass sightings this summer, this needs to stop, so education is key IMHO. Granted many private property owners are looking and waiting to call the local police and instigating these problems BUT anglers are also uneducated about the law.



Dodger said:


> I applaud the efforts to increase access and I think it is a great thing to license people to access bodies of water across private lands. Landowners deserve that. But, I don't see the point in licensing people to be on public property.
> 
> Am I missing something?


Your not missing anything. I understand your concerns and thoughts. We are just trying to set the record straight and avoid future water fights.

Remember, we don't need a new Bill as we already hold the cards. But there are a few important issues that need to be addressed....Portage and easement.

Right now, man-made obstacles are allowed to portage around. Natural obstacles are off limits. Kayakers SHOULD have an issue with this but have yet to voice any concerns, not sure why.

Feel free to PM me your number and I will call you and answer any questions or concerns you have. We really take public thoughts seriously and are more than happy to talk.

Thanks again for the dialog!

Bryan


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## Dodger (Oct 20, 2009)

Bryan,

Thanks for your response. I need to look at this a little closer. Do you have easy access to the USC decision that you cited? I think I need to read that before I go any farther.


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## F/V Gulf Ventur (Oct 8, 2007)

Here a link to the Utah Supreme Court Conatser ruling:

http://www.utcourts.gov/opinions/supopin/Conatser071808.pdf

More facts -->http://utahwaterguardians.org/?page_id=21

Let me know if you have any questions.


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## Catherder (Aug 2, 2008)

Dodger said:


> Also, my understanding of property rights in Utah leads me to understand that everything below the high water lines is the property of the State. If that is the case, then why do you need a license to be on public property?


Actually, the stream beds in question are property of the landowner and not the state. The water belongs to the state. However, the state has an easement that allows access to the streambed, similar to the easement that exists on a home to allow public use of a sidewalk. hence, the term you may have read in these discussions, "public water over a private bed" to describe these posted properties.

From the Conatser Supreme Court decision.

¶30 We hold that the scope of the easement provides the public the right to float, hunt, fish, and participate in all lawful activities that utilize the water. We further hold that the public has the right to touch privately owned beds of state waters in ways incidental to all recreational rights provided for in the easement, so long as they do so reasonably and cause no unnecessary injury to the landowner.

FWIW, water law involving many lakes and reservoirs holds that the State owns the land up to the high water mark. (There may be some exceptions.)


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## Dodger (Oct 20, 2009)

Bryan, thanks for the link.

That's exactly what I was wondering. 

Ownership of the stream bed is retained by the landowner although the state has a public easement to use the land between high water marks.

So, I don't really mind a license to cross private land and use water. A license is basically a paper contract showing that you have an understanding of the relevant law to justify your access to the water via easement without interfering with landowner rights.

So I feel a little more up to speed now.

I do see portage as a problem. Bottom line is that if there is no portage for any obstacle (natural or man-made), it will result either in trespassing or damage to the obstacle. (In my head I see people installing zip lines and rope ladders in stream beds.) 

Who's on what side of the portage issue?


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## fishsnoop (Apr 3, 2009)

http://www.utcourts.gov/courts/sup/stre ... ?mon=20084

Here is another good one to listen. Listening is key.


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## F/V Gulf Ventur (Oct 8, 2007)

Dodger said:


> That's exactly what I was wondering.
> Ownership of the stream bed is retained by the landowner although the state has a public easement to use the land between high water marks.


yes, now the question is... what is the easement? and what is the high water mark?
Water users are pushing for "ordinary high water mark"... farm bureau wants "wet boot". I have to assume they are think this is an "angling Bill", when its actually, in fact, a "water-user Bill".

Say a boater/tuber goes down, how are they supposed follow a 'wet boot' ruling?



Dodger said:


> So, I don't really mind a license to cross private land and use water. A license is basically a paper contract showing that you have an understanding of the relevant law to justify your access to the water via easement without interfering with landowner rights.


That's the idea for sure.... if you hold a permit, you took the class, know the ethics and are held accountable for your actions.



Dodger said:


> I do see portage as a problem. Bottom line is that if there is no portage for any obstacle (natural or man-made), it will result either in trespassing or damage to the obstacle. (In my head I see people installing zip lines and rope ladders in stream beds.)
> 
> Who's on what side of the portage issue?


Yes, that is the problem!.....kayaker comes to an impassable "natural obstacle".... two choices, walk back up stream, OR get a ticket... and/or possible injury.

Very good question! Water users are pushing for any portage at this point, still working out kinks it sounds like.

I do wonder where the kayakers voice is, this really effects them!


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## Dodger (Oct 20, 2009)

"Wet boot" is never going to work. It is as simple as that. And if the legislature goes for an easement with varying size, it only invites litigation. Not only is "high water" a a better defined boundary, it gives access to the entire stream bed - which is the goal, as I understand it. Not to mention the problems with rafters/kayakers/floaters/tubers. If it is wet boot, they are trespassing by bumping into the river bank! That is completely unacceptable.

Furthermore, when you balance the public's right to use against the landowner's right to exclude, clearly the scales weigh for the public. The landowner suffers no additional harm or inconvenience in his property right with a "high water" rule than already exists by an easement to the stream. The public's easement is practically worthless without a "high water rule" at least because the public will be turned into a trespasser each time it bumps the sides of the stream. 

Portage also has to be provided for. Zip lines and rope ladders are not acceptable in the streams. The legislature shouldn't be encouraging them.


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## Nueces (Jul 22, 2008)

*Re: Water Bill__Draft #(personal injury)*

I am just catching in on the tail end here, but did pick up the FB wants wet boot vs high water. I speculate they are worried about liability??? :?:

I agree they should be worried about liability. So instead of punishing the masses that enjoy the outdoors and 99.999999% of the people vs one jack that slips on mud and gets hurt then wants SOMEONE to pay - ultimately the target could be the land owners???

Why not just nip it in the bud and place STONG language that NO ONE will be held responsible for someone getting hurt. That could open a can of worms that someone could set a bear trap or something else and not be responsible.

There are too many legal attacks going against people for someone else not being accountable, so they are looking to be a victim. Maybe a long ramble, but the wet boot isn't very good because there are going to be deeper holes that will be hard to get around or too much current in other spots.

Just my $.02 worth.


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## F/V Gulf Ventur (Oct 8, 2007)

*Re: Water Bill__Draft #(personal injury)*



Nueces said:


> I am just catching in on the tail end here, but did pick up the FB wants wet boot vs high water. I speculate they are worried about liability??? :?:


I believe its more of a privacy issue.... Chris (snoop) know more about this that I, so perhaps we can get him to chime in.



Nueces said:


> wet boot isn't very good because there are going to be deeper holes that will be hard to get around or too much current in other spots.


Very true.

BUT, if you have a deep hole or too much current that you cannot get around, and the "OHWM" is 'bank-to-bank" then your out of luck.... either swim or turn around.

This leads back to portage... man-made vs. natural.


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## fishsnoop (Apr 3, 2009)

The liability issue is resolved. It is clearly written the landowners are not liable. 
The issue of privacy is an issue with developed areas like the Weber above Rockport and urban stretches of streams but the dominant conversation about wet boot vs ohwm from Farm Bureau is an unproductive conversation at this point. We are working on getting some clarity out of them when we have the next meeting.


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