Recreational access in state waters on private land

The Utah Supreme Court issued an opinion on July 18, 2008 (Conatser v. Johnson, 2008 UT 48) recognizing that the public has a recreational easement to walk the privately owned bed of state waters while engaging in lawful recreational activities that utilize the water. In doing so, the court reaffirmed its 1982 ruling in J.J.N.P. Co. v. Utah, 655 P.2d 1133 (Utah 1982) that the public has a right to use the surface of state waters for recreational purposes.

It is important to understand the scope and limitations of the easement recognized in the Conatser decision. The DWR is providing the following information to clarify what the easement allows and what it does not we do not intend it as legal advice or a definitive legal analysis. The following opinions and interpretations are not binding on courts, prosecuting attorneys, or other law enforcement agencies. The DWR provides this guidance solely for general information.

State waters: The easement is limited to "state waters" and allows public recreational access on the surface and bed of natural lakes and natural flowing rivers, streams, and creeks on private land. There is no right of access in diversion works, canals, ditches, artificial streams, or off-stream reservoirs on private land. Also, a watercourse must have sufficient water to support lawful recreational activities before the public has a right of access on its surface or bed.

Bed of state waters: Once lawful access to a state water is obtained, the easement allows the public to walk on the privately owned bed while engaging in recreational activities that utilize the water. Although the Utah Supreme Court did not explain what constituted the bed, other states with similar access rights define it to include the area within the ordinary high water mark.

Ordinary high water mark: The best indicator of the ordinary high water mark is the vegetative line on the banks of a water body where topsoil, grass, shrubs, and trees occur in a manner consistent with an area that is not routinely flooded.

Lawful access. The easement does not allow the public to trespass across private property to gain access to state waters. Access to and from the surface or bed of the water must be obtained at a lawful access point, such as a highway right-of-way, public property, or private property with written landowner permission.

Recognized recreational activities: The easement allows public use of state waters while engaging in lawful recreational activities that utilize the water. If the recreational activity is unlawful or does not utilize the water, there is no right of access for that activity.