American Whitewater

Utah Navigability Report

Summary

In Utah, the public owns the water and has the right to use any surface water for which legal access exists. The public has the right to use the surface water for recreation, including boating. Currently, Utah law is silent on whether streambeds of non-navigable waters can be used or touched by boaters.

State Test of Navigability

Utah law has not adopted a state test of navigability. The streambeds of navigable waters under the federal title test are held in trust for the public by the state.1) However, all waters of the state are the property of the public, including water in non-navigable streams that do not pass the federal tests of navigability. The public's right to use the water is subject only to the existing rights of appropriators to the beneficial use of the water.2) This provides the public with rights to recreate on streams that do not pass the federal tests of navigability, i.e., non-navigable waters.

Extent of Public Rights in Navigable and Non-Navigable Rivers

Although navigability is the standard used to determine title to water beds, it does not establish the extent of Utah's interests in the waters of the state.3) The state regulates the water as trustee for the benefit of the people.4) This is exemplified in state policy, which recognizes a public interest in the use of the state waters for recreational purposes by requiring that recreational uses be considered by the State Engineer before he approves an application for appropriation5) or permits the relocation of a stream.6)

A corollary to the rule that all waters of the state are the property of the public is the rule that where there is public access to a body of water, there is a public easement over the water, regardless of who owns the water, and the public is not trespassing when upon such waters.7) The public easement includes the right to use the water to float leisure craft, hunt, fish, and participate in any lawful activity when utilizing the water.8) But the public easement is not well defined, and the Utah Supreme Court has expressly not answered the question of whether the easement includes use of the streambed.9) Thus, although the Utah Supreme Court seems to be following Wyoming's generous rule of permitting incidental contact, Utah law remains unclear as to whether a boater, floating down a stream whose beds are privately owned, is trespassing if his paddle strikes a rock in the streambed.

Perhaps Utah will be inclined to follow the rule in neighboring Wyoming, another appropriation state, but the answer cannot be predicted with any accuracy. One strong argument in favor of allowing incidental use of privately-owned streambeds is that the public owns the water and, therefore, has a stronger right than that provided by a navigational servitude. Not allowing incidental use of the streambed would render the public's ownership of water less valuable. The right of portage in non-navigable rivers is an open question in Utah as well.

Miscellaneous

Entry upon property that is posted, fenced, or after personal communication that the property is private is a trespass infraction.10)

1) Utah Div. of State lands v. United States, 482 U.S. 193 (1987).
2) J.J.N.P Co. v. Division of Wildlife Resources, 655 P.2d 1133, 1136 (Utah 1982).
3) United States v. State of Utah, 283 U.S. 64 (1931
4) Id. Public ownership of water is founded on principle that water, a scarce and essential resource in this area of the country, is indispensable to the welfare of all people and the state must therefore assume responsibility of allocating use of water. See also Tanner v. Bacon, 103 Utah 494, 516, 136 P.2d 957, 966-967 (1943).
5) Utah Code 73-3-8(1)(e).
6) Utah Code 73-3-29(4)(a)(ii).
7) J.J.N.P Co., 665 P.2d at 1137.
8) Id. at 1136. See also Day v. Armstrong, Wyo., 362 P.2d 137 (1961); Southern Idaho Fish and Game Association v. Picabo Livestock, Inc., 96 Idaho 360, 528 P.2d 1295 (1974). See also Colman v. Utah State Land Bd., 795 P.2d 622 (1990).
9) Id. at 1137.
10) Utah Stat. § 76-6-206 (1997).
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