Legislature punted on water rights

One of the most challenging non-budgetary issues addressed by the 2009 Legislature was attempting to define recreation rights in public water located on private land.

Legislative action is necessitated by two decisions of the Utah Supreme Court. The first decision in 1982 involved a natural lake on private land but assessed by a public road. The lake had been stocked with trout by the state. A new landowner attempted to close the public access. The court held that the public had a recreation easement to "float" a leisure craft on a "body of water" and to "participate in any lawful activity when utilizing that water." The facts of the case made the decision largely unobjectionable.

The second decision, Conatser v. Johnson, involved access to the Weber River and was issued in July of 2008. It focused on the Court's prior use of the word "utilizing," concluding that this single word elevated all recreation activity, including hunting and fishing, to coequal status with the right of floating rather than being incidental thereto.

It was a bold stroke constituting a major expansion of the public easement. If it were at all foreseeable, it was not based upon the court's language from the earlier decision, but rather upon mounting public pressure for recreational access to rivers and streams.

Both court decisions place reliance upon the statutory recognition that "all waters of the state, whether above or under the ground, are hereby declared to be the property of the public." UCA Section 73-1-1. However, neither decision recognizes nor discusses the long-established legal principle that the declaration of "public ownership" is not synonymous with, nor does it constitute a determination of who has the "right of use" or the extent of such use. As with public land, use of public waters has long been the subject of state regulation. In the regulatory schemes governing public land and water, public ownership has not been equated with an unfettered right to access or use.

Central to Utah water law is the concept that rights of use grow out of and are dependant upon actual use: "Beneficial use shall be the measure and limit of all rights to the use of water in the state." UCA Section 73-1-3. It is a concept born of and intertwined with history of use and the relationship to all other users. It necessarily accommodates private property rights in both land and water.