CHAPTER V - CANAL COMPANY INTERVIEWS

“Life is no brief candle for me. It is a sort of splendid torch which I have got hold of for the moment, and I want to make it burn as brightly as possible before handing it on to future generations.”                                                                                              George Bernard Shaw  

            This chapter reports the attitudes and concerns of canal company officials regarding public access and use of their rights-of-way.  The source of information is six survey interviews conducted with canal company officials in northern Utah.  The interviews were conducted in an open-ended format, enabling the officials to thoroughly express their concerns.  The purpose of the open-ended interviews was to obtain as naturalistic a response as possible.  The goal was to gauge general sentiments and to determine the major concerns and issues revolving around the development of recreational canal trails.  The opinions expressed by each of these individuals does not necessarily reflect the official canal company policies.  It is not the intent of this paper to address the ultimate validity of each individuals concerns but rather to attempt to gain insight into attitudes on a number of issues..      

INTERVIEW SURVEYS

There are a number of advantages to having a questionnaire administered by an interviewer as opposed to the respondent filling out a questionnaire.  First of all, the response rates attained in interview surveys are much higher than in mail surveys.  Completion rates are usually at least eighty to eighty five percent  (Babbie, 1992). Respondents are more reluctant to say no to someone who is asking to sit down with them for a few minutes than they are to toss a mail questionnaire into the trash.  Because the interviewer can probe for answers the respondents are less likely to say “don’t know” or “no answer”.  Interviewers can also help clarify questions that may be misinterpreted or misunderstood, thereby obtaining relevant responses.  Most importantly though, the interviewer can observe the reactions to certain questions and ask additional questions in order to help the respondent clarify their reaction, giving the survey an additional level of validity and depth.

Although there are a number of advantages to using the interview survey, there are a number of procedures that must be followed to obtain successful results.  The interviewer’s presence should not affect the respondent’s perception of a question or the answer that is given.  He or she should be a neutral medium through which the questions and answers are transmitted.  Under no circumstances should the interviewer communicate through word or gesture a bias concerning the topic of the interview.  The appearance and demeanor should be that of the people being interviewed.  The interviewer should have a confident familiarity with the questionnaire:  Questions should be read exactly and precisely   (Babbie, 1992).

INTERVIEW DEVELOPMENT AND METHODOLOGY

            The canal company data contained in this chapter was collected through the use of interview surveys.  The survey instrument is composed of seven sections including a preliminary information section (data collected before the interview) and 39 questions.  The average length of each interview was approximately one hour long and was tape recorded for later use of transcribing the information. (See Appendix B for transcripts).   Given the length of the interview an attempt was made to keep the respondent’s burden to a minimum.  Questions 20-23 were taken from a feasibility study conducted by the Grand Junction Urban Trails Committee  (The Grand Junction Urban Trails Committee, 1996).

Survey Pre-Test

Prior to setting up the interviews, a survey pre-test was conducted on two individuals.  After completing the questionnaire, the participants were interviewed to weed out problems with the overall layout, bias or ambiguity in the questions themselves or how they were asked, (confusing questions, repeated questions, etc).  It was also noted how much time it took to complete the interview.  As a result of the pre-survey several questions were either removed or modified.  

Interview Population 

The interview population consisted of six individuals in high ranking positions within canal companies who are either dealing with or have dealt with issues of public use of their canal corridors.  All six individuals represent irrigation canals which divert from some of the major systems along the Wasatch Front.  The goal was to interview canal officials who are in the midst of negotiations to develop a public recreational canal trail on their canal corridor.  The individuals were eventually found through word of mouth and referrals after extensive phone conversations with key individuals. 

Setting up the Interview

Setting up the interview with these individuals was not difficult.  The reason for the 100% response rate was due to the fact that they were very receptive to the idea of discussing a topic that is in the forefront of their minds.  Because the issue of opening their canals to public use is of concern to them and to the company as a whole, some strong opinions were voiced.  

Preliminary information was obtained before the interview.  This information included name, title and technical information about the canal.  Two of the six participants asked for the questionnaire in advance of the interview and were granted it.  In retrospect, given the higher levels of enthusiasm and preparedness of these two participants, it would have been beneficial to send the questionnaire to all of the participants in advance.  The reasoning behind not doing it was to keep the respondent burden to a minimum, especially with the length of the interview. 

PRELIMINARY INFORMATION

Listed here are the six individuals who were interviewed.  For more detailed information about the respective canals see Appendix B.

·                    Name: Terel Grimley

Title/ Titles:          President of Utah Water Users Association

                              President of North Ogden Irrigation Company

General Manager of Pineview Water Systems (Ogden R. W. U. A., South Ogden Cons. Dist., and Weber/ Box Elder Cons. Dist.)

Administers to what canals?       

Ogden-Brigham Canal

South Ogden Highline Canal 

North Ogden Irrigation Canal.

Which of these are being considered for trail development by others?

Ogden-Brigham Canal, South Ogden Highline Canal and North Ogden Irrigation Canal.

·                    Name: Floyd Baham

Title/ Titles: General Manager of Davis-Weber Counties Canal Company            

Administers to what canals? 

Manages the Davis and Weber Counties Canal Company

Which of these are being considered for trail development by others?

A section through Clearfield and Layton which is about 6 miles long.

·                    Name: Ed Vidmare

Title/ Titles: Chief facilities management group (Chief of O and M), Bureau of Reclamation           

Administers to what canals? 

Thirty Five Canals Throughout the State of Utah.

Which of these are being considered for trail development by others?

Provo Reservoir Canal (Murdock Canal) ­ Provo River

Ogden- Brigham Canal (Highline) ­ Ogden River

Steinaker Service Canal ­ Vernal ­ Uintah County (Existing Trail)

·                    Name: Jonathan Clegg

Title/ Titles: Assistant superintendent of Provo River Water Users Assoc. (PRWUA)       

Administers to what canals? 

Weber-Provo Diversion Canal (Conveyance from Weber to Provo R.)

Provo Reservoir Canal (Murdock Canal)

Which of these are being considered for trail development by others?

Murdock Canal

·                    Name:  Peter Kung

Title/ Titles:          President of Crockett Avenue Distribution System        

Secretary Treasure of Logan River Water Users Association

                              On board of directors for Logan N.W. Field Canal

Administers to what canals? 

All seventeen canals in the Logan River Water Users Association, 10 of which are members of Crockett Avenue.

Logan N.W. Field Irrigation Company.

Which of these are being considered for trail development by others?

Logan, Hyde Park and Smithfield Canal

Logan Northern Canal has been proposed

·                    Name:  Jess Harris

Title/ Titles:          President of Logan Northern Irrigation Company

Administers to what canals? 

Logan And Northern Irrigation Canal

Which of these are being considered for trail development by others?

Logan And Northern Irrigation Canal

            The following is a summary of the six respondents answers and is broken down by each question.  The questions are bolded as they appear on the actual questionnaire.  In some cases these are followed directly by small text that was used in the interviews to help the interviewer offer more focused questions above and beyond the main question..  These are followed by brief summaries of the six respondents answers and then by quotes which were selected based on their ability to summarize the most prevalent attitudes of the group as a whole.   When various points were made in response to a questions, they are broken out into separate summaries followed by selected quotes.

Current Use By The Public

1-      Do you know if any canals are currently being used for recreation? If so, what are the existing uses you know of?

The responses to this question ranged from no use at all to a couple of developed canal trails that are being use extensively by the public.  These two trails are the South Ogden Highline Canal, which runs through the Ogden City Golf Course and is piped and covered, and the Steinaker Service Canal in Vernal City which is open.   In terms of existing informal uses of their canals, there are numerous uses that range from active to passive recreation.

·                    Covers a broad range of the spectrum.  A lot of walkers, a lot of joggers, people with dogs, horseback, tubing, kayaking, fishing, motorized vehicles, four wheelers, motorcycles.

·                    Yes they are all used. All seventeen….Swimming, fishing, tubing…you name it.  Everyone overlooks that it is a swamp cooler.  These canals act like one...so, people sit and dangle their feet in the water.

There are also varying levels of tolerance between the respondents regarding informal use of the canals.  The following quotes give an idea of the range of general attitudes.

·                    The Ogden Brigham canal is basically an informal use but there are a lot of people who use it to walk and jog on. There are some areas that children walk along the maintenance road going to and from school and parks but its an informal use in undeveloped areas. 

·                    There is no such thing as informal use. They either use or they don’t and if they use it, its illegal.

·                    I would suspect that any canal with a maintenance road is used for recreation.  Our canals are definitely used for recreation and all of it is unauthorized.

·                    There is a lot of walking and hiking and that sort of thing.  And we haven’t discouraged it.

2-     Do you allow public use/ access? If not, what signing and notice efforts do you have in place to warn recreation users not to use the canal banks?

All of the respondents stated that technically they do not allow public access  although,  since the public “informally” uses it anyway, they mitigate through the use of signing and education.  Here again, the range of policies and attitudes toward informal use are illustrated. 

·                    We don’t allow any public access on the canal and we have put up no trespassing signs along the canal.  That doesn’t mean everybody obeys that but that’s what we’ve got there.

·                    We obviously do not and we try to keep every possible point of public access posted.

·                    We do.  We don’t encourage it though.  Wherever we think its dangerous we have a sign that says: be careful, danger.  And that is to cover us.  The biggest fear we have is people messing with the water works.  So, we put signs up saying: messing with the works or turning it on or off unauthorized is against the law and we quote the law and those are on all the head gates through town.

·                    We as a board have just left it open.  If they hike we don’t have any objection to that.  We have signs that say enter at your own risk for our own protection.

3-      How aggressively are these efforts enforced?

The enforcement efforts ranged from issuing trespass tickets to anyone found on the canal to completely fencing off potential entry-ways to posting caution signage. For the most part trespassers are encountered by the ditch riders performing routine maintenance.  There is no patrolling of the canal by the local law enforcement, but the ditch rider takes on the added burden of educating the public and notifying local authorities of trespassers.  Usually this only occurs when the trespasser has gotten out of hand or is unruly.

·                    If we catch anybody on there we’ll run them off.  If we catch anybody on there more than once we will call the police.  They could be issued citations….We have put gates up along the canal where it comes off the road, but we have done that for our own benefit to keep people from traveling along the canal with a vehicle.

·                    We mainly try to educate the people that they are trespassing, that it is government property.  Mainly through education in order to maintain the legal liability you have to issue a few trespass tickets now and then.

·                    We will quite often tell people who are out there on the canal that we have got a job to do and its not to keep people off the canal, its maintenance and operation and so we struggle with that.

·                    During the irrigation season we have a water master that goes through and will talk to children about being careful, not being on the spillway, not pulling diversion boards.  The other thing we do is we lock things in place.  We lock canals open or lock them closed just to keep out tampering.  So, we are into enforcement.  If you listen to us and pay attention to the signs and listen to verbal instructions, fine.  If you start fighting back then we will bust them.

4-      Do you have any concerns regarding these existing uses?

A majority of the respondents expressed concerns regarding the potential for a lawsuit against their company and for the health safety and welfare of the public.  This is a theme that runs throughout the interview.  While there is a definite fear of litigation there is also a genuine concern for the safety of anyone using the canal (legally or not) and for the general misunderstanding of the potentially serious dangers associated with the use of open canals for recreational purposes, especially in lined canals with fast moving water.  There was also a concern of the effect on the quality of the water and on operation and maintenance.

·                    Well we just feel that any kind of recreational use along one of our canals, as long as its an open canal is just incompatible with what we are doing.  The three main concerns we have identified are liability, safety of the public, water quality and impact to our operation and maintenance procedures.

·                    No, if they are in reason. If they don’t tamper with or erode the banks or throw garbage in, no I have no problem with it. 

Liability And Injury

5-      To the best of your knowledge, have there ever been any liability or injury claims lodged against your canal company or other entities or individuals associated with the canal?  If so, what?

Aside from the Bureau of Reclamation (BOR) which is protected by the Federal Governmental Immunity Act, not one of the respondents was aware of ever having to pay liability or injury claims.  The cases that did come up were dismissed and settled out of court.

·                    Yes,  We did have one in Pleasentview in our Ogden- Brigham Canal and it was two 17 and 18 year old boys that were tubing down our canal down a drop chute… one of them flipped over and hit his head and he did drown.  There was a lawsuit and the lawsuit was dismissed because he was trespassing.

6-      What existing risk management do you have in place?

Aside from the B.O.R. all the respondents stated that they carry insurance.  They also do a lot of signing and gating at access roads, placement of warning signs at dangerous locations and installing public safety devices which involves among other things, covering or screening dangerous structures such as drop chutes. Educating the general public of the dangers associated with canals is another risk management strategy.. 

·                    We do the signing.  Signing is hard because signs are shot or removed just about as fast as we can put them up.  Theres the education, there is the minimal enforcement if you will…in specific identified areas we will install public safety devices because you know they are going to get there just do the best you can to try to keep them out of the really harmful places. 

·                    Obviously we have insurance and we do our best… to keep people off of the canal.  We are contemplating doing some better education of the local community and citizens about the reasons why we want people off the canal.  Sometimes people stop and we explain to them and you can see the light go on and hopefully they will be a lot more cooperative in the future.

7-      How do you feel about piping or covering canals as a solution to liability or to increase efficiency of water conveyance?  Have such discussions taken place concerning the canal your company administers too?

All the respondents expressed a high degree of interest in piping their canals.  The only things holding them back is the availability/ securing of funding and the man power to take on such an expensive and time consuming project. 

·                    Yes, we’ve done a lot of piping when money is available or we were able to get either state or federal money, low interest loans.

·                    …we had a study done a few years ago about piping the entire canal and they figured it would cost about ten million dollars.  We would love to be able to pipe the canal, but financially as a company we can’t do it.

·                    Every one is in favor of it, the biggest obstacle is cost.  Its an expensive proposition.  For our twenty three miles of Provo river canal it would be roughly about 70-80 million dollars.

·                    The other problem with piping is access, we would have to put in new head gates, new arrangements for cleaning it out. Its cost prohibitive.

In terms of funding opportunities, a couple of respondents pointed out some opportunities.  They ranged from utilizing state and federal monies to sharing the cost with utility companies (gas, power, AT&T, etc.) who may be interested in utilizing the corridor to improve and enhance their system of delivery.

·                    They have the means to create the funding.  They can create an assessment. There is a bunch of things they can do, the state’s got money, Central Utah’s got a lot of money through our  conservation incentive programs.  So, the money is out there its just a matter of locating it.

According to half of the respondents, water quality, water conservation, ease of maintenance, and improved conveyance are just as much if not more of a reason for this interest in piping than liability is.

·                    I can’t say It’s not for liability, but that’s  a secondary benefit we get from piping the canal is that it will open up the corridor for recreational use.  The main issue is to increase water quality and also to increase conveyance capacity.

·                    Yes we are very anxious to pipe our canal, not to accommodate a trail, that could be an outcome but our main focus would be addressing the other issues.  The reduction of liability, water quality issues and there are some advantages to saving water that occurs.

·                    And if we put that trail in there, and it was covered up, other than us going in for maintenance they [the city] can have the whole canal as far as I’m concerned. I’d just give it to them.

There were also responses that pointed to the social and environmental reasons for keeping the canals open. 

·                    The other canals…and a lot of the smaller ones are dirt lined canals are very slow moving and they add a lot to the atmosphere of the neighborhoods.  

·                    Yes we have…the water resource people in the state… say a substantial proportion of water leaks through the bottom of our canal and recharges the aquifer in the center of the valley. The other thing is we are worried about losing the tree cover.  At first they thought the trees were essentially suckers taking on water, now they realize that the evapotranspiration probably lowers the temperature in town by so many degrees and provides refuge for wildlife.  So we don’t want to lose the associated riparian benefits.

8-      Are you aware of a city’s or county’s ability to shield canal companies from liability by way of indemnification or inclusion under their respective insurance? 

A typical maintenance agreement entered into would state that: The city or agency “ holds harmless company from any and all liability arising out of the construction, maintenance and operation of such landscaping, walkways and parking facilities.”     

            The majority of the respondents indicated an awareness of the ability of their respective cities to indemnify them.  One respondent indicated no awareness of this, but mentioned having thought of inclusion under the city’s insurance in order to cut the premium down.  There was a general feeling of skepticism from each of the respondents, not in terms of an indemnification clause’s ability to shield liability, but its inability to mitigate for the inevitability of suit in general,  with the associated cost and time commitments.

·                    We are aware of that but from a legal standpoint you will literally never be able to take them out of the picture.  You can write indemnification clauses and all that kind of stuff but when push comes to shove and somebody gets a really good lawyer…they are out the window.  They are going to come after the owner;  they are going to come after the operator.

·                    I’ve been told by some people from one of the cities that they can do that but I have remained skeptical.

            One respondent mentioned that Utah courts now hold that due to the sizable burden of requiring irrigation companies to mitigate for attractive nuisance via expensive piping or other efforts, they are released from liability.  The outcome of this is that the courts now require fences to be installed by developers that build along irrigation canals in order to protect the residents.  According to this respondent, if the access easements are used by the city for recreation the irrigation company is released from liability.

9-     Are you aware of Utah’s recreational use statutes? If so, how much do you know about it?

The responses here were split in half in terms of having heard of this statute but the majority only had a superficial understanding of it.

·                    The city has talked about it with us, but I’m no attorney so I don’t know all the legal ramifications.

·                    No, I don’t know anything about those.  I haven’t heard it called that but I have heard about some of those statutes.

(See Chapter III and Appendix C for a description of recreational use statutes)

10-   Do you feel the liability risks associated with recreational use of canals are higher or lower or equal to the risks associated with other recreational facilities?

Four of the respondents indicated that they feel liability risks would be higher due to the risk associated with unsupervised children in denser residential areas falling in and getting pulled into a siphon or drowning in the fast moving current of a larger, concrete lined canal

·                    I think the liability risks are greater along an open canal…You are not getting out of a concrete lined canal without a ladder structure you are not coming out on your own because its fairly swift, you have low structures, bridges, culverts, siphons..  The ______  canal is a pretty good sized canal, 400 second feet.

·                    I would say they are higher on the canal.  On our canal there are some hydraulic structures that are extremely dangerous we have about four siphons. And once you get in the current of a siphon there is nothing you can do it just sucks you right in.  Some areas of the ______ canal are swift moving.

Two of the respondents felt that the liability risks would be equal, based on setting and location.

·                    In a rural setting and it’s a trail along a canal provided for horseback riding, mountain biking, jogging, things like that, I would think its about the same because your having more mature individuals use it rather than smaller children accessing it.

·                    I would think the same. 

11-   Do you think some of your liability concerns can be addressed given proper design, construction and maintenance of a trail along any of your canals? Which concerns?

Half of the responses indicated that yes, some if not all of their concerns can be addressed through proper design and one respondent mentioned that they can be handled through agreements with the city.

·                    Yes, I think so.  I think a part of that would be an educational part to educate people to proper conduct.  I think that in combination with the proper design and construction and also the proper attitude, yes…, and I see that around Boulder, they have signs that tell you what to do with your dog and be considerate.

Two of the respondents indicated that none of their concerns could be addressed unless the canal was piped.

·                    I would say no, the only thing that is going to placate our concerns is getting it in a pipe.

Legal Information

Questions 12-17 directly pertain to the canal sections that are being considered for development.  Therefore, they are formatted differently than the rest of the questions.

12-   To the best of your knowledge, what is the existing adjacent land use by percentage?

Adjacent lands were typically private residential or agricultural properties which, with one exception, granted easements to the canal companies.

·                    Ogden-Brigham Canal                   

25-30%  Residential                                             

70-75%  Agriculture                                             

             ---   Business  

·        North Ogden Irrigation Canal 

60-65% Residential

35-40%  Agricultural

2%         Business   

·                    Davis and Weber Counties Canal Company

90-95 % Residential along the section in question and 50-60 % along the whole length.

10-15% Agricultural along the whole length

10-15% Business along the whole length

the rest is open space used by Hill Airforce Base.

·                    Provo Reservoir Canal (Murdock)

50 % Residential

50  % Agricultural

5    % Business

·                    Crockett Avenue Distribution System (Cache Valley)         

60  % Residential

30   % Agricultural

10   % Business    

·                    Logan And Northern Irrigation Canal

40 % Residential

60     % Agricultural

13-  What are the existing ownership standings along the length of the canal/ canals?

In terms of public vs. private.

·                    Ogden-Brigham Canal                   

100%   Public

0%       Private

-Ogden-Brigham Canal, 100% is owned by the United States of America.  The Ogden River Water Users bought it and deeded it to the U.S.A. as collateral for the project so it’s in the name of the U.S.A. 

·                    North Ogden Irrigation Canal

0%   Public

100%    Private

-The North Ogden Canal is 100% easement the irrigation company does not own any of it. Its just an easement.

·                    Davis and Weber Counties Canal Company

-100% Privately owned by the company along the length in question.

·                    Provo Reservoir Canal (Murdock)

-5 % Public

95  % Private

Most of the private ownership is residential.

·                    Crockett Avenue Distribution System (Cache Valley)         

-100 % Private

On the upper canal the Logan, Hyde Park and Smithfield Canal its BLM and Forest Service ground on the back side of that.  But most of its private.  The city has one side at a park, it might be municipal but a very small percentage.

·                    Logan and Northern Irrigation Canal

-100 % Private

14-  Does your company or WUA own land under any portion of the canal/canals?

The responses this question regarding underlying ownership illustrates the variety of scenarios encountered by agencies interested in developing canal trails.  Three were owned in fee title either by the U.S. of America or the canal company themselves and the  easements corresponded to these types of ownership’s.

·                    Ogden-Brigham Canal- Owned in fee title by the U.S.A. (Bureau of Reclamation) and the Water Users Association is operating entity which is contractually obligated to administer to and maintain the canal.  The R.O.W ranges in width from 35-100 ft. in sections.

·                    North Ogden Irrigation Canal- As stated above the North Ogden Irrigation Comany does not own any of the canal, it is 100% easement.

·                    Provo Reservoir Canal (Murdock)- Purchased in fee title by the U.S.A. in 1940.  The R.O.W. is 100 ft. in width.

-Most of our right-of-ways on both canals are fee title.  There is some easement

·                    Davis and Weber Counties Canal-

-We own all of the land where the canal presently sits and we have bought some small parcels along the canal where we felt like it was necessary for us to.

·                    Crockett Canal Companies- According to the respondent the full length of the canal was deeded to them and they own the canal bed.

·                    Logan Northern Canal-

-One little spot its about a 150 feet we pay taxes on.  That’s another reason we don’t want to own is because we would have to pay taxes on that.  I think that as stock holders they would own the water and the canal.

15-  Does your company or WUA own easements for any portion of the canal/ canals?

·                    Ogden-Brigham Canal- Since the R.O.W. is owned by the federal government there is no easement necessary.

·                    North Ogden Irrigation Canal- Since the length of this canal is owned by private property owners the canal company owns an easement for maintaining conveyance of water to the shareholders.

·                    Provo Reservoir Canal (Murdock)- According to the Chief of operations with the B.O.R. this canal is 95-98% fee title with the rest being reserved right-of-way where the B.O.R. needed land to straighten out the canal. The assistant superintendent for the Provo River Water Users Assoc. expanded on this:

-There are some.  Some of them represent or originated from land that was patented originally.  They are reserved right-of-way.  When the U.S. granted land to an individual they retained or reserved certain rights for canal rights-of-way and some of our easements are based on those original easements.

·                    Davis and Weber Counties Canal-

-There is no easement, we have title to where the canal presently sits.

·                    Crockett Canal Companies- According to the respondent there is an easement along the canal and they also own five-year prescriptive easements along some laterals.

·                    Logan Northern Canal-

-We have an easement all the way along that was established way back in the 1800’s.  Its an easement for maintenance. 

16-  Does the respective city own land under any portion of the canal/ canals?

Only a couple of the respondents mentioned sections that were owned by the city but were such a small percentage that it was not an issue.  For example, there is a 700 ft. commercial strip the city owns along the Logan Northern Canal.

17-  Are you familiar with general ownership standings along the canal/ canals.

-       How much of the canal corridor is owned in fee simple by adjacent landowners? (Own land and canal company has an easement.) 

-          Have adjacent landowners or the city adversely possessed any  sections of the canal R.O.W.?

·                    Ogden-Brigham Canal- Owned in fee title by the U.S.A. (Bureau of Reclamation) and the Water Users Association is operating entity which is contractually obligated to administer to and maintain the canal.

-North Ogden adjacent landowners own 100%.

-No one can adverse possess or develop a prescriptive right against the United States.

·                    North Ogden Irrigation Canal- As stated above the Water Users Association does not own any of the canal, it is 100% easement.

-On the North Ogden it really doesn’t matter to the irrigation company(adverse possession) because they just have an easement.

·                    Provo Reservoir Canal (Murdock)- Purchased in fee title by the U.S.A. in 1940. 

-Because the title of our facilities are held in the name of the U.S. government no one can adverse posses against a federal government. So, we don’t have to worry about adverse possession.  If I were too guess I would say it is about 70-80% fee title, owned by the government and the rest is easement.

·                    Davis and Weber Counties Canal-  Owned in fee title by the canal company.

·                    Crockett Canal Companies- According to the respondent the full length of the canal is owned by adjacent property owners up to the edge of and in some cases to a section of land along the other side of the canal.

·                    Logan Northern Canal-  The ownership standing along the length of this canal is similar to the Crocket Canal Companies.

18-  Please explain your relationship with the BOR regarding ownership of underlying land.

As stated above the Logan Northern, Crocket and the North Ogden Canals are owned by adjacent landowners and the Davis Weber Counties Canal is owned in fee title by the canal company.  Therefore, they have no relationship to the BOR.

In regards to the Ogden Brigham and the Provo Reservoir Canal, they are owned in title by the BOR and this relationship between the operating agency (BOR) and the operating entity (the respective W.U.A)  is one in which the W.U.A requested the construction of the project which was funded and constructed by Federal money through the Federal Reclamation Act of 1902.  A contractual agreement is signed by the respective W.U.A. in which they are obligated with day to day operation, maintenance and administration of all the facilities and have to coordinate and follow through on safety and construction federal regulations. The BOR does annual inspections of the facilities in addition to the obligatory duties of the respective W.U.A. 

·                    Regarding the ownership…the Federal government goes in and builds the facility and then we sign a contract with the water users association.  They will operate and maintain it and over a period of time they also pay back to the Federal government the original construction costs.  So, its basically a zero interest loan type of thing.  The interesting thing is that when they have repaid the entire construction amount it still remains in the name of the United States. Within the state laws they have to maintain themselves as a non-profit organization or they would be taxed.  So, their assessments while they are repaying the cost of the facility might be a little higher… it takes so long to pay back…we have such long contracts to repay that they keep their assessment up because by then the facility is run down.  They are collecting more money to update it and rehabilitate it. 

19-  Are there any existing encroachments such as fencing or vegetation? If so, how have you dealt with the problem?

The responses to this question were enthusiastic.  It is clear that encroachment is a prevalent problem.  The BOR has six full time people that deal with this problem alone, all the time, so one can imagine the magnitude of the problem especially for smaller canal companies who cannot afford to hire even one individual to deal with it full time.  The crux of the problem has to do with adjacent homeowners unknowingly or knowingly building on the established easement thereby obstructing the canal company from access to the canal.  These unauthorized encroachments mentioned in the interviews dealt with everything from vegetation to sheds and fences to house construction. 

·                    They fence right up to the canal and some own property on both sides so they fence right across it.

·                    …there is actually a house or two that has encroached on a small part of the R.O.W.

With the rapid urbanization in areas traversed by canals, these problems will likely increase. One respondent claimed 50% encroachment along the length of the canal. Generally, the respondents answers indicate a fair amount of patience and fairness when dealing with encroachments and will only take a forceful approach (such as manually clearing the R.O.W. themselves, forcing the city to have the board of adjustments make them come into compliance or taking legal action such as filing cease-and-desist orders against them) after giving ample fair warning.

·                    We try to work with the property owner.  We actually pay for improvements along the canal, we will buy the cement.  If they put in a retaining wall we will buy shrubs.  We want them to understand that they have to come and ask us for permission first.  I was just out last night where someone built within ten feet of the canal bank, we cut a deal with them and said if they put in a retaining wall and don’t get any closer we will allow it and if not we will put a cease and disorder on it.  I don’t want to get into law enforcement or zoning or code enforcement so we go to the city.  They have been getting better over the last year or so about involving us in their process.

·                    We deal with it on a case by case basis and you try to head it off before it gets too far along.  A lot of times we don’t find out about it until after the fact.  We have taken legal action against some and others have pulled back and others you try to go ahead and license them by having an encroachment agreement, license their activities for whatever they are doing.

Encroachment agreements or license agreements authorize someone interested in extending their property onto or building on or across the R.O.W.   The homeowner is usually charged a one time fee for an engineering survey and license processing.  While this usually entails municipal improvements, it has proven to work well with adjacent homeowners.  In some cases where the homeowners have already encroached onto the R.O.W. they are allowed to keep the fences, trees, shrubs, etc. as long as maintenance activities are not interfered with.  In addition to the initial fees they are also offered an annual lease which is on a sliding scale, based on the magnitude of the infringement. 

·                    We have a process that we go through when someone requests an encroachment on the canal R.O.W. and we call it a license agreement process.  There is a fee schedule involved and an application.  We evaluate their requests to see if its compatible with our project purposes and if so we license and permit to encroach.

According to Utah Statute , U.C.A. 1953, 73-1-15, It is “unlawful for any person...to place or maintain in place any obstruction…along or across or in such canal or watercourse…without first receiving written permission for the change”.

A couple of the solutions the respondents offered included the following:

·                    What we are doing now is getting Logan city to contact us whenever anybody applies for a fence permit or building permit if it has the word canal anywhere near it, and we are willing to work with them

·                By state law [homeowners] cannot keep the personnel from the irrigation company out from maintaining and so we do require that if they fence it they have to put in access gates along the canal for our operating personnel to get through.  We put one of our locks on it and they can lock it if they want a lock on it.  It has worked out well.

20-  Does your company or WUA have the legal authority to provide (if you wish to) the right for recreation trail use for all parties or some parties? Please explain.

The Crockett Canals, Logan Northern Canal, North Ogden Irrigation Canal and 20-30% of the Provo Reservoir Canal are easements over land owned by the adjacent homeowners, which means legally speaking the individual homeowner needs to be in agreement before the canal company can authorize access.

A majority of the R.O.W.’s on the Ogden-Brigham Canal and the  Provo Reservoir Canal (Murdock Canal) are owned by the BOR and the Davis and Weber Counties Canal is owned by the canal company which means they do have the legal authority to provide recreation. 

·                    Whoever petitions for that use has to get a license agreement that is signed by the [WUA] and the B.O.R. for that use and basically a hold harmless agreement and it states what can and cannot be done but it is a formal license agreement for a fifty year period.

·                    Yes.  We [BOR] have the authority to contract with cities or whoever, to go to other agencies and basically license them to encroach on the federal property to undertake whatever activity it is they want to do.

·                    We are a private stockholder company. So, we can make agreements with whoever we want.

(See Conclusion for additional information on permission issues.)

21-  Conversely, would consent from your canal company be legally required if easements for recreational trail use on your canals were acquired from the underlying landowner by a recreational entity or agency?

This question is not applicable to Davis and Weber Counties Canal since it has no easements and is owned in 100% fee title. (see #15)

With the exception of the small percentage of easement along the Provo Reservoir Canal, this question also does not apply to the BOR.  According to the Chief of O and M for the B.O.R. the Provo Reservoir Canal is 95-98% fee title (see #15) and according to a “guess” by the Assistant Superintendent of Provo River Water Users Assoc. it is 70-80% fee title (see #17) with the rest being easement)

·                    Absolutely, it won’t go forward without it.  It has to be written permission not verbal.

·                    In those sections of our canal that are easements…I would say it would be because that has the potential to impact our rights of easement in terms of our ability to operate and maintain the facility. 

As far as the Crockett Canals, Logan Northern Canal and the North Ogden Irrigation Canal are concerned, these canals are strictly easements and because there is a lot of gray in terms of whether there consent is legally required, there is no defined answer to this question. 

·                    I would think yes.  But that is something we asked them about and there is no legal opinion.  We keep hearing that the attorney general is going to come up with a statement….  As far as I know there is no answer yet.  A precedent setting case is needed.  So, I would say yes because by law they technically own the property to the canal bank and so its not really ours.  Our easement is for conveying water and some cleaning, not for selling or allowing someone else to trespass for other purposes.  We have the right to trespass for maintenance and cleaning but I don’t think we can convey that to anyone without getting some kind of a legal opinion.

·                    I don’t know for sure.  In my opinion I don’t think it would have to be but then I might be wrong.  I think that it’s strictly the landowner that would have to agree to it.

(For a  brief and superficial explanation of easement designations see this chapters conclusion entitled Legal Information.) 

22-  Are there different answers for different sections of the canal?

The Davis and Weber Counties Canal is the only canal that does not have any easements, therefore it is the only one in which their consent would be legally required for the whole length of the canal. (see #15)  North Ogden Irrigation, Crocket Canals and Logan Northern are all easement so the same answer given in #21 applies to the whole length of the canal.  The Ogden-Brigham Canal and the  Provo Reservoir Canal (Murdock Canal) are mostly owned in fee title so there would be discrepancy in answers for the length of the canals.  This is best summed up by the following response:    

·                    Yes, it would just depend on the underlying ownership of the canal, whether it’s fee or easement.  If its fee obviously it would be legally required, if it’s easement I still think it would be.  We would have to consult our attorneys for sure but that’s my take.

23-  If easements for a recreation trail were acquired from the underlying landowners by a public entity such as the respective city would Bureau of Reclamation consent to this use be legally binding?

Since Crockett Canals, Logan Northern Canal and Davis and Weber Counties Canal are not owned by the B.O.R., this question is not applicable to them. (see #18)

According to the pertinent respondents, if the B.O.R. gives consent to recreational use of their R.O.W. then yes, it would be legally binding. 

·                    Yes, if they signed an agreement.  The B.O.R. is favorable to doing trails on reclamation projects.  So, it would be legally binding.

·                    I don’t think that would probably happen, [acquisition of Murdock Canal] but I think it would be.

Potential Trail/ Recreational Development

24-  Do you foresee any obstacles in developing a canal as a recreational trail?

 (GENERALLY ALLOWED FOR VOLUNTEERING OF ISSUES BEFORE PRESENTING LIST BELOW)

A.      Liability ­ Why?

-  Attractive nuisance

-  Liability should cover entire corridor not just path.

B.       Safety ­ Why?

C.       Crime ­ Why?

-  Law enforcement: Time of response

-  Changing emergency procedures/ protocol

-  Protection of facilities and appurtenant structures. Such as flow measurement gauges and spillway structures.

D.      Operation and Maintenance ­ Why?

-  Increased O+M costs

-  Canal company rights: it’s a work space, headgates get daily attention during irrigation season, need availability of frequent daily access to headgates, ditchriders use heavy equipment, need to access both sides of canal, inspection of canal daily.

-  Vegetation management for visual inspection.

-  People need to honor the ditchriders need to pass!

(Have headphones on, dogs running loose, dogs in canal, horses get spooked, bicyclist not paying attention.)

-  O and M of dirt canal will not allow surfaced trails along side on canal bank.

E.       Funding ­ Why?

-  Lack of resources (funding) to cope with the increased costs that may or may not be associated with trail development.

F.       Lack of Management entity ­ Why?

G.      Other ­ Please explain:

-  Public perception that the canal is public land.

-  All uses should be subordinate to agricultural use.

-  Private property owner’s rights: taking without compensation, multi-purpose easements.

                The following is a list of the main obstacles mentioned in response to this question, followed by the number of times they were mentioned.  While the following list summarizes some of the major concerns, it certainly does not encompass them all.  Simply because the category entitled crime has a lower numerical value than O and M, this does not mean it is more or less of a concern.  (See Appendix B for a detailed description of each response.)

Liability ­ 6 times; O and M ­ 3 times; Funding ­ 3 times; N.I.M.B.Y. ­ 3 times; Water Quality ­ 2 times; Lack of Management Agency ­2 times; Vandalism ­2 times; Crime ­2 times. 

Liability and O and M are the two obstacles the respondents had the most difficulty with.  Not only are these issues mentioned by all the respondents here but they are woven throughout the rest of the interview as well. 

·                    Yes I do.  The three or four I mentioned in the beginning, liability, operation and maintenance, public safety, water quality are all very sizable obstacles. 

·                    Major concerns would be just liability concerns, water quality concerns, operation and maintenance concerns so that we have the ability to maintain it. 

The concerns that follow are numbered for ease of explanation:

(1) There can be a high degree of danger regarding serious injury and death along some sections of the respondents canals.  This is especially true along open, concrete lined canals where the water can be fairly swift (400 second feet), difficult to get out of, and where there are low structures, bridges, culverts and siphons (see #10).  Due to this potential danger, it is understandable why the respondents are concerned about the safety of that one trail user who accidentally falls in and seriously injures themselves, or the one trail user who decides to file a lengthy and costly lawsuit because they fell in and cut their foot on glass thrown in the canal by other trail users.   It is then also understandable as to why they demand assurance of some degree of indemnification from liability.    

·                    I would think that if someone is going to accept liability on development of a trail it should be the whole corridor, because the corridors really aren’t that large. Our canals are anywhere from 40 ft. to 100 ft., not very wide.  We would probably require that liability cover the whole corridor.

·                    No, as long as we can get over the hurdle of the liability, I don’t see a problem.

·                    There are a lot of different issues.  Open canals….i think the general understanding of the public is that they don’t understand canals and how dangerous they can be.  I guess they can be educated but I'm sure you are going to find that one curious individual that doesn’t believe that they are dangerous. 

·                    Yes.  I would say liability comes to mind right away.  That is the first thing someone asks, who’s responsible for maintenance, someone getting hurt, are we allowed to even let other people on that trail.  Those are the biggest ones.

(2) Generally speaking, canal companies operate on very tight budgets and are, in some cases, in dire financial straits, so it is understandable when they express a concern for increased operation and maintenance costs derived from opening the canal easement to recreational uses.  In some cases where there is not enough room for separation of uses along the maintenance road the officials are concerned with having to share the road with recreationists and the likelihood of conflict that would arise.     

·                    We know there would be an increase in O and M…whoever we granted the license to have the recreational corridor to pick up the additional cost.  But that is one of the reasons we don’t allow recreational uses.  We don’t really see a need right now at this time to undergo that additional expense to o and m a canal.  And we are taking a lot of strong pressure from the share holders that treat the water to keep the corridor usage down as much as possible.

·                    If we had to up the ante to help maintain the trail, then no.   We deal in a very low budget in other words, we try to get by with as low a cost as we can.  We don’t have a lot of money to spend on a lot of things.  If we start raising the taxes on the shareholders then they have to ask what is going on here.

·                    The other problem you have with a canal of this nature is that the o+ m road itself is not very large.  The water master is almost to the point where he refuses to use the canal because the use is so high and because the people have become so belligerent to him they won’t let him by to do his job that he will actually turn the head gates by driving on the canal as little as possible, and that defeats our number one purpose in that somebody’s got to have their eyes on the canal to make sure that its functioning properly, its not developing any leaks or anything of that nature, its not overtopping, its performing well. So, it all leans toward…granted its not the thing you want to do, but you have got to keep the people off.

(3) Crime and vandalism were big concerns for some of the respondents and were not so much of a concern for others given proper preventative measures such as regular bike patrols.

·                    There probably would be a need for some visible law enforcement in the area, a policeman riding a bike along there at different intervals.  As far as protection of facilities in our corridors everything is under ground except pump stations and we fence them off separately from the corridors.  I don’t think vandalism would increase in those areas.

·                    In terms of vandalism, if somebody was going along and busting the locks off the gates and opening and closing the gates then we would have to have something in the agreement with the city that says that if this happens either that has to be addressed or we terminate the agreement.

(4) Another important concern brought out by the interviews was the issue of decreased water quality due to increased usage by recreationists and their animals.  As the landscape continues to fragment and agriculture/ open space retreats further and further away from our cities, canals that once primarily conveyed water to agricultural fields are now slowly being converted to culinary usage.  This means that, especially near open canals/ditches, water quality becomes a concern, just as it is along riparian corridors.  As explained in Chapter II, “Improving Water Systems”, this conversion has become a common practice over time and therefore creates a concern for water quality in open canals near public recreation.  (See this chapters conclusion for full explanation)

·                    Part of the issue you have with the canal for recreational uses, a lot of people want to ride horses down the canal.  When you are talking about culinary water, any type of animal feces is the biggest threat to culinary water supply there is.  The goal for recreational purposes has got to be to get rid of all the animals.  People want to walk with their dogs, jog with their dogs, ride their horses.

(5) One possible obstacle that was listed in the questionnaire was a lack of management entity. A lot of times, when a trail passes through multiple municipalities, there will be differences in quality of maintenance and design throughout the length of the trail.  So, it makes sense for either one management entity to hold responsibility for the whole length of the trail or for the formation of a coalition which oversees the whole length of the trail.  

·                    One of the concerns we have is once the canal is developed, who is responsible for maintaining that tral?  We are not in the trail business and we don’t have the resources to maintain that.  On the other hand we don’t want it done in a piecemeal fashion, we don’t want to have to deal with Orem city for the section that is in their city, Lindon city for their section, Pleasant Grove and so forth.  And there is several reasons for that.  We would like, number one, for a trail that is developed to be well maintained and well developed in a consistent fashion so that you are a recreationists jogging down the path and you go through Lindon and it’s a nice park and landscaped well and then you come to Pleasant Grove and its just a dump.  That wouldn’t be good for anybody, but we would bear the brunt of that because the underlying land is ours.  So we would just assume have some consistency and turn the management over to another entity and we are not sure who that entity is.  So that’s an obstacle.

·                    Another concern is not knowing if its going to be maintained like it should years down the road.

The respondents who expressed an interest in trail development on their canals provided a couple obstacles they are aware of.   One of the major initial obstacles is securing consensus among the landowners whose property the easements cross.  A couple of the respondents eloquently touched on this issue. (See Chapter V for a review of adjacent landowner concerns)

·                    The problem of putting a trail along the North Ogden Canal, which is basically easements, is you would have to get consensus from all the private landowners to do it.  A lot of people think that its wonderful that there is a walking trail, others don’t like it they think its invading their privacy.   So, there is mixed reaction.  I’ve found that as people think about it more, we have been able to get more agreement that it’s ok.  But there is always that small group that thinks that crime will increase with trails and reports I have read prove that it actually does not.

·                    And the other thing is the Not-In-My-Back-Yard (NIMBY) issue. You will find a lot of people who think that it’s a great idea and are really, really supportive, but when we tell them its going to be in their backyard they say sorry we didn’t mean that, not in my back yard and it amazes me because a lot of those people are educated.   They belong to environmental organizations which makes them think they are an environmental person, but when you ask them to do something in their own back yard about it they are not willing to do that.  A lot of people say that we bought along the canal because of the privacy and the water and not the lack of trails.  So they see it as a negative and I think that is where we have to educate.  If you want to live in a community, and people are the community,  I think you have to give something back to the community.  And if you want to be a recluse and not want to have anything to do with anybody then buy 500 acres up on the bench and keep everybody out.  That’s part of living in town…getting the amenities of the town. 

Lack of funding was also expressed as an obstacle to trail development.

·                    Funding is also a major obstacle, everyone is interested in trails but no one seems to have money for trails.  That seems to be changing a little bit as development occurs and people are interested in preserving open space and having an amenity like a trail.

25-  If a trail were developed along one of your canals what implementation measures would you like to see?

-  (Risk management, set backs from maintenance road, fencing, restrictions on time of use, etc.)

Two of the respondents touched on the subject of incorporating intensive education efforts which could be considered one of the most important implementation measures.

·                    I don’t know that we would be looking at any restrictions.  We would probably need the cities or whoever to go through an intensive educational program so that people would basically police themselves. A little kinder understanding of the red truck that drives up and down the canal, what he is there for, basically allowing him the right to get by and do his job.  I guess just have a little more of an ownership attitude in the fact that it is culinary water for someone else…you don’t have to go and let your dog in the canal.  Protect the facility, understand what its about, what it is for and use it accordingly. 

·                    All those.  Signage and education.  I think we have to educate the public that this isn’t a right, that it’s a privilege, to have respect for other people’s properties.  Who is going to be picking up the garbage along there?  And maybe it should be set up so that people don’t go through there at midnight and get rowdy or whatever.  So, set some times of use.  But again, I think that its something where everybody needs to be involved and it shouldn’t fall to one entity or the other to do it all.  Maybe we could have a community patrol, sponsors along the canal that spend some time checking on things.

Other responses range from restricting time of use to daylight hours to keeping the trail separate from the maintenance road where possible to keeping dogs off the trails to preserving the right to “close down the trail as we need to accomplish our maintenance tasks”. 

·                    I think that if we allow a little more use of it I think that people would end up policing themselves.  You would have that one element, that 2-5% element, it would be just some place new for them to go and destruct and destroy.  So, you put up with that.  I think you would want a trail patrol strictly for public protection because there are some areas of the canal that are remote.

See #34 for additional comments pertaining to this question.

26-  Have you ever been contacted by anyone concerning trail development on any of your canals?  If so, who is it and where do negotiations stand?

·                    Ogden-Brigham Canal and North Ogden Irrigation Canal-

Ogden city has contacted us and we have licensee agreements with them.  North Ogden and Pleasentview has contacted us and we have done preliminary conceptual plans with them.  Right now there hasn’t been much done other than informal use, but they are looking at sometime in the next year, starting to formalize some of those agreements.

·                    Provo Reservoir Canal (Murdock)-

We have been contacted by Lindon City and also by Mountainland Association of Governments concerning the Murdock Canal.  We had several meetings and discussions where we presented our concerns and they attempted to alleviate them unsuccessfully and right now we stand with our policy that until its piped it’s a no go.  They said that they had conversations with their risk management provider and felt that they could relieve us of liability.  But we are still uncomfortable about it because I wonder about a small cities ability to shield the federal government.  Since they are a underlying land owner with a very deep pocket guess anybody could sue anybody.

·                    Davis and Weber Counties Canal-

Yes, Clearfield.  We have a draft agreement and I’ts got to be brought to our board of directors for approval.   Our board has not signed an agreement with the city.  I’ve been visiting with the director of Clearfield parks and rec. and we have come up with some preliminary draft plans.  We will bring it to the board and they will look at it and decide what else they want in there.  I think we would like to see some of the public access as long as we can be held harmless for anything that might happen.  We’re ok with that.

·                    Crocket Canal Companies-

The city and adjacent property owners and actually the irrigators as well have all contacted me.  We are in limbo right now, we are waiting for an opinion that is supposedly coming and we haven’t gotten that yet and the city has made the first step to quantify where they are because they aren’t even mapped correctly on city maps.  But that is all in the planning stages right now.  They are trying to get their numbers together and we are trying to get our group together.  I am starting to put out lists like this where people can contact other members and hopefully there will be some exchange of information. So, its all pending.  The city has always been bad about including us and adjacent property owners in the process.

·                    Logan Northern Canal-

Hyde Park came to us when they were really pushing it about two years ago.  But when we had that meeting that night that pretty well threw it out.  Of the majority of the landowners that were there, there was only one that was in favor out of over a hundred people.  So, it was shot down.

27-  Are you aware of any other trails built next to irrigation canals in Utah?

Of the six respondents only three knew of other projects.  The Steinaker Service Canal in Vernal came up a couple times.

·                    Just the Steinaker Service Canal but they didn’t build anything.  People just use the existing canal.

·                    I know there is a canal out in Vernal area, there is a trail alongside of it.  The Utah Lake distributing Canal.   I noticed has a trail that is fairly new alongside of it for a ways.  That’s just off of Camp Williams and runs north and south.

·                    I know along the Jordan River.  I know in Vernal along the Ashley Creek system. They did do some down by the Jordanelle dam outside of Midway, but that was Bureau of Reclamation Federal funds and Federal project.  It’s  not a local effort…they involved the canal companies but it was a Federal project.

28-  What forms of recreational use permission are you aware of?

-  Donation of easements, sale of recreational use easement, sales of fee title to the land under the canal easement?

                 The majority of the respondents had no in depth knowledge of these types or any types of recreational use permission. 

·                    I don’t know of any fee title or anything like that, it usually just permission is granted like a donation.  As far donation of easement we just grant a right of use.  We allowed Ogden City to put a parking lot for their Mt. Ogden trail system on our canal.  And we dealt with some grading, etc.

29-    Given that there is no easy way to keep the public off the canals, how do you feel about the idea that opening the canal for recreational use might actually help manage existing uses, as opposed to complete closure, which could be expensive, difficult to enforce and difficult to defend regarding public relations?

This is an argument that is used time and time again by proponents of developing trails along canals.  So, it is interesting to get insight into how these officials really felt about the reasoning behind weighing the positives and negatives of opening their canals to the public.  The responses ranged from skepticism to agreement.  At first some of the respondents misunderstood the question as a proposal to open up the canal themselves without the help of an agency or city, so, these people initially responded with trepidation and fear of opening themselves up to liability and claiming that there “needs to be some control”. 

·                    That’s why right now we have kind of taken the middle of the road…we also understand that the iron fist isn’t going to work either.  So, we feel the best option right now is to play it where we are at. We don’t allow it, we don’t want it and we don’t condone it but we realize its going to occur.  We will exert some energy as far as education as best we can.  We will pursue law enforcement if necessary but we also kind of see the turn the other cheek, you know what you don’t see you don’t worry about. 

Once the question was further defined there was still some skepticism on the part of a couple of the respondents.  The point was made that once the canal is opened to the public there is no question that things will change overnight from illegal trespassing to law abiding, conscientious use. 

·                    One of the city’s points when they came to us with the proposal to open the canal for recreation was that it would actually be a benefit to us to have more eyes and ears on the canal to report problems to us and to keep the canal right-of-way clean of litter, etc. etc.  I guess we really struggled with that because if we were to buy that we would have to expect that the same people who are willfully and knowingly disobeying the law now by trespassing would overnight change into people who are law abiding, consciences, anxious to assist us, type of people.  I guess it was just too hard for us to swallow.  But the argument was made and we do struggle a lot with whether or not we incur greater problems to an extent by keeping the canal closed. 

It was pointed out by one of the respondents that once their canal is piped they will be strongly encouraging opening it to the public.  The reasoning behind this is that what is left after piping and covering is a wide (sometimes up to 100 ft. or more) corridor that will be very costly to maintain and with the major liability issue solved, it would make for a symbiotic relationship between the city and the canal company to open it up for recreational use.

·                    I very much think that opening the canal will help manage some of the uses.   If left undeveloped there is going to be a lot of maintenance on that [piped canal] for noxious weeds, dust control, the looters, you are going to still get that one element that is going to try to ride a motto-cross bike up and down there.  Our plan is to encourage the cities to develop the corridor so that it doesn’t get into the wrong element.

There were a couple of respondents who agreed with the reasoning behind this question and felt that it would actually be a better situation than it is now once opened for recreational use.  The point was made also that by closing off the canals, a “forbidden fruit” situation develops which actually attracts more crime than not.

·                    By increasing the awareness and increasing usage I think people will help manage it better.  We may get a paved trail so it won’t be dirt.  We may get better shrubs, better stability on the banks.  More people watching so incase there is a problem, and I have seen that now where I have eyes and ears out where we can’t watch the whole canal all the time.  So, I think it will work. It becomes your own back yard and you take care of it.

·                    If someone was managing it there and it was open for use and managed properly it would be better than the way it is now.  I'm my opinion it wouldn’t be any worse if it was managed properly.  And my feeling is that it would be of tremendous amount of value for a lot of people that like to hike, walk, etc.

30-  What is your position regarding controlling use through Cooperative Recreational Use Agreements with public entities in order to get help managing the recreational use without interfering with the water works?

The overall position that each of the respondents took was positive and open to listening to what the “public entities” have to say just as long as their interests and concerns are addressed.

·                    We want to be good neighbors with the cities and say yes the canal is running right through the middle of your town and lets make use of it, and yet the city has to look at our point of view… and say yes we can see where you would be concerned about the liability.  So, I think that as long as they are concerned about our concerns there then we as a company are willing to do whatever we can to be good neighbors with the city and hopefully work something out with them.  That may turn out to be a real asset.

·                    From Reclamation’s perspective, we encourage recreational use of a lot of our facilities. That’s something that we do.  I think it would benefit reclamation, it would benefit the water users, it would benefit everybody to have this government property as another form of recreational use but its got to be done the right way.  You want to make it a win-win for everyone not a win-loose-loose, you don’t get anywhere.  People might get the recreation but we are going to loose along with the water users.  In the end the cities are going to use.  Its just got to be done right.

Canal Operation And Maintenance

31-  From what month to what month does the operation season last?

When are the canals generally filled and drained? 

What typical O+M tasks are performed during this period?

-  Type of equipment used? -Grade all. Skid Loaders, Track Ho (Hydro Unit), Road Graders, and Draglines.

Except for Crockett Canal Companies and Logan Northern Canal, which begin their water season on the first of May and end on the first of October, the others put water in on April 15 and take it out on October 15.  Operation and Maintenance tasks are performed year round and depending upon whether the canal is drained every year (generally, concrete lined canals are drained) or perennial (generally, ditches) there are different levels of maintenance.  The seasons are broken up into the irrigation or operation season and the off-season. 

Most of the heavy maintenance is done in the off-season when the canal is drained and it’s easy to get in the canal and repair cracks, clean out and trim trees and other vegetation near the canal and spraying of weeds.  In the fall, when the water is turned off, the siphons are cleaned out, this takes up to six weeks of work to accomplish.  One respondent claimed that most of the work is concentrated in two successive weekends in the spring before filling the canal.  The type of equipment that is used consists mainly of back-hoes with front loaders, compressors, pick up trucks, dump trucks, track-hoes, and draglines

·                    Off season there is definitely a lot of heavy equipment on the canal because that is when we can get down inside the canal prism with grading, cleaning, burning weeds and all the major things.

During the irrigation/operation season maintenance is concentrated along the road and where possible in and around the canal.  During this season, the water master and ditch riders will perform routine daily inspections and generally look for any problems along the canal.  Maybe somebody left a gate open, or broke a fence down or a leak in the canal has to be fixed.  They will check grates, pull and clean debris out of trash racks (large “strainers”), cut trees and shrubs along the maintenance road, check head gates once or twice a day, pick up trash, make sure gauges and measuring devices are unobstructed (have no leaks) and change gates for different second-feet-per-second changes. While the maintenance in the irrigation season is minimal compared to the off-season, occasionally there is a need to take heavy equipment up to haul clay, etc..  The equipment used during this season consists of tractors with mowers, large half ton and small four wheel drive pick-up trucks, rotary mowers, etc. Usually, there are areas that are known to have problems, such as areas where people are known to throw trash, where special attention is given.   

·                    [Canal riders] are in a half ton four-by-four pick up truck.  They regulate the turnouts of the water from the canals into reservoirs in the pump stations, they check all the reservoirs along the way, they monitor all the pump stations.  On the Ogden Brigham Canal we have four pump stations along the canal, there are seven or eight reservoirs.  They check the trash racks, keep them clean, where there is open canal we have a trash rack. They keep them clean.  They check the pump house and make sure they are working properly and lubricate the pumps on a regular basis. 

                In the case of the Murdock Canal which is owned by the Bureau of Reclamation, the operating company (usually the water users association) will perform the general routine maintenance and the B.O.R. will perform “general operation oversight” which means their staff engineers will go down the canal about three to four times a year to make sure their maintenance activities are going smoothly and focus on the issues the Water Users have directed them to. They will go in on a yearly, three year or six year basis with varying intensities.   The type of equipment they use ranges from maintenance trailers, ATV’s, and ORV’s to half-ton trucks.

32-  Do your ditch riders perform O+M checks on a daily basis during operation seasons and if so at what times of the day?

-  How many ditchriders do you have?

                The majority of the respondents have water masters (a.k.a. ditchriders)

that go up and down their canals daily at varying times during irrigation season.  There are also maintenance crews that will be spending time on the canal, but at less consistent intervals.  There was only one respondent who mentioned having a ditchrider on call 24 hours a day throughout the operating season.  While the ditchrider doesn’t ride the canal daily he does check various sections weekly.

            The number of ditchriders depends on the length of the canal and the number of shifts each day.  So, they can range from one to four or five for each canal.   Even though each canal company has different shifts and times of day the ditchriders are on the canal, there is no doubt that during the operating season (approx. April thru October) there will be ditchriders along the canal daily at some time between 6:30 A.M to 10 P.M.  The daily shifts generally range from one to three and there are about one to three runs per shift.  The ditchriders are also on twenty four hour call above and beyond the shift hours during each day.  Since each canal has differing and unique operating systems, it would be important for the city or agency to coordinate the times of maintenance with their respective canal company and take the necessary steps to minimize conflict as much as possible. 

·                    We have three full time ditch riders that take turns on their shift on the Ogden Brigham Canal in Weber Co. and then we have one canal rider that operates the canal from the end of Pleasantview to Brigham City and he works six days a week on a shorter hour day and has one day off a week when another canal rider runs his canal for him during the irrigation season.

33-  What typical complaints do they have concerning ease of O+M?

-          What uses have they reported conflicts with during routine maintenance?

The complaint that surfaced through all of the respondent’s answers had to do with the impact on operations due to the, now, illegal recreational use of the canal maintenance roads.   Complaints included kids riding motorcycles, too many people walking/riding bikes and refusing to get out of the way of the ditch rider, people becoming “belligerent”and verbally abusing the ditch riders because they believe they have a “right” to use the property for one reason or another or because the ditch rider has kicked up some dust, to people driving vehicles on the maintenance road, and vandalizing of the structures. One of the respondents mentioned that in some cases these uses get so out of hand that operation and maintenance becomes impossible.  The ditch riders will refuse to check certain sections because of the high use and the difficulty of getting through. 

·                    Our water master operations are greatly impacted by the illegal use we already have.  There are certain times of the day when he simply refuses to go on certain stretches because of the number of joggers and walkers.  Its just impossible to get anywhere, you are constantly waiting for people to get out of your way or sometimes they don’t get out of your way or they complain about the dust.  So he just does his best to avoid those parts of the canal during those times of the day.  This is frustrating to us because its our facility and we have a responsibility to maintain it.  Then in the off season it’s a different concern, a public safety, can we move the equipment up and down the canal without risk or concern of hurting someone.  Anytime anyone is on the canal our concern is the canal, our focus is on the canal, we are paying attention to the canal.  We are not always thinking necessarily is there going to be a jogger around the next bend because that’s not what we are there for.

Another problem mentioned is dumping of garbage which consists of tree limbs, grass cuttings, trimmings and other miscellaneous objects along the canals which obstructs the ditchriders from getting through.  Legally this use of the canal corridor as a dumping ground is a punishable offence, but for the most part the officials had an interest in education rather than constantly putting Band-Aids on the problems and never really solving them.  In some cases, the response of the canal company is to fence off the property. 

·                    If a tree falls across the ditch from their property, technically it is their problem, but we have always gone out and helped them out.  I'm trying to get everyone to cooperate, the adjacent property owner, the canal company and Logan city and between the three of us we should be able to resolve most of these problems.

34-  Briefly discuss the operation and maintenance tasks you feel would most likely be interfered with due to increased recreation.

Aside from the existing complaints mentioned above which could easily be seen as, and for the most part is, a preview of what is to come for each of these officials, there were other concerns such as obstruction of maintenance activities including mowing along the canal or vandalism of headgates, obstructed access to canal and people throwing debris in the canal which could need to be cleaned out.  

·                    But with increased use we do have malicious vandalism.  That’s the one thing I am worried about that because there is more use people would go in there and mess with it more and there would be increased costs.  What they could do to the head gate is they are cast metal, they could break them, bend the stem, they could obstruct them.  During use a lot of times they are not locked, so people mess with them pulling them up and down.  One time the city disconnected the pump down in the park for a while to do some routine maintenance and kids threw debris down the pump and lodged it so that the canal company had to go in and re-bore it out.  

For the most part, the responses to this question seemed to be more focused on the less obvious impacts.  These concerns had to do with such things as the type of landscaping and materials (gravel, asphalt) used for the walkway/pathway and whether these would solve some of the conflicts such as dust clouds from the ditchriders trucks or compound the concerns, such as a tree that obstructs their vehicles because it was planted to close to the road.  There was also a concern for the increased sediment loads from increased runoff.

A majority of the respondents offered suggestions for implementation measures that would help solve some of the problems.  One respondent suggested coordinating with the city to work out times for basic maintenance, such as mowing, where the trail would be closed.  It was suggested to close the trail one day a month for this activity.  It was also suggested by the same respondent to close the trail at dusk throughout the year to cut down on crime.  Another respondent suggested putting in drainage fences to cut down on the sediment loads in the canal. 

Four of the respondents made it clear that given proper planning and coordination with the city, the possibilities for interference would be minimal if at all.       

·                    I really don’t think that in the areas where we would allow recreation use, I don’t see that it would really conflict with our operation maintenance at all.

·                    In terms of people being on the trail though theres no problem because they can move in a hurry.

35-  Do you feel a developed trail would increase, decrease, or have no effect on your ability to maintain the canal? Why?

Four out of the six respondents claimed that it would have no effect on their ability to maintain the canal.

·                    I think if it was done right I don’t think it would interfere much in my opinion.  I just think the benefits for the recreational use along there would be terrific for the recreationists if it was done right.

One respondent thought it would decrease their ability to maintain the canal due to the existing problems and conflicts that occur which he thought would only increase proportionately as you allow more and more people on.

One respondent thought the effects on their ability to maintain the canal would be positive because they would have “better access, more people watching which would offset some of the problems.

·                    I think the more people watching and helping would offset the increased traffic and garbage problems.  I do know that dog manure has been a big point of contention, and I physically had farmers tell me they are just tired of it and I don’t blame them because there is dog manure everywhere.  

General Concerns

36-  Do you feel there are any resolvable solutions to any of your concerns? Explain.

The unanimous response was yes, there are solutions to the concerns mentioned.  While no one offered lengthy descriptions of specific solutions to their concerns they generally were optimistic about the possibility to resolve their concerns.   A couple respondents claimed that the only way to resolve their concerns was to pipe the canal.  All respondents repeated claims heard throughout this interview that as long as the problems of liability, O and M interference, water quality, public safety, etc. were all addressed and taken care of, they are in favor of recreational trails.    

·                    I’m of the opinion that trails along canals and corridors that are used as water conveyance are a good thing, because they generally benefit the public at large. I am certainly in favor of it.  I have talked with my boards about it and they seem to be pretty much in favor of it as long as liability problems are addressed and taken care of.

One respondent offered brief solutions to his concerns:

·                    Yes I think we went through that.  Better information and better maps and a willingness of parties to sit down.  And rather than asking who is liable, we admit partial responsibility with everyone else and lets work at it together.

37-  Could you summarize what it is you feel are the most important issues involving public recreational use of your canal R.O.W.?

Liability and impacts to O and M were the two most important issues mentioned in four out of the six responses.  Water quality, public safety and limiting access to walkers, joggers and bicyclists were other concerns that were mentioned by the respondents

·                    There is also a public safety concern.  The public doesn’t always know what a dangerous spot they can get themselves into and only now and then do they really get bit and really find out.  Because usually when they do it costs a life. 

One of the respondents mentioned the need, as a first step, to have all the players sit down, collaborate and “admit” responsibility for the issues, and, to continue this round table discussion on a regular basis.

            One of the respondents answered this question by getting to the heart of an issue that should be drilled into each and every user who decides to take advantage of a canal corridor for recreational purposes, legally or illegally: 

·                    The number one thing that we need to keep in mind is that there are a lot of farmers/stockholders that rely tremendously on this water for their livelihood to water and irrigate their fields with.  So that is number one, that comes first.  The recreational part of it is secondary but still I just feel it would be a good thing in my opinion.

38-  Can your concerns be addressed with creative and proper design, construction and management of the trail.

One respondent’s response was that they can’t, given their physical facilities and constraints and therefore the situation has not “created a win-win for everyone.”  The other five respondents thought that their concerns can be addressed.  This is apparent already from earlier responses.  One of these five gave an ultimatum that the concerns can be addressed only if the canal is piped, in which case “steps [could be] taken to partially mitigate”. 

·                    I think our feeling is they couldn’t go far enough to totally mitigate to the point where we would feel comfortable allowing them short of piping the canal.  [The] city proposed several things they thought they could do to help address some of our concerns, we just didn’t think it could help us get to where we wanted to be.  They did try to address the risk management issues.  They said they would lend some of their public works crews at various times during the year to assist in grading.  They would undertake a public education campaign to educate people on proper canal behavior if you will, don’t litter, don’t take your dogs on, don’t get in the canal, I think those were the major things talked about.

39-  Do you have any final thoughts, feelings, or general concerns regarding recreational use of canals?

There was a range of answers for this question which can be summarized by breaking them into responses that are favorable towards recreational development of canals and ones that express concerns. Two of the respondents simply pointed out that most of their concerns were expressed earlier in the interview.

            One of the respondents shared that his company had hired a consultant to do renderings of  a portion of their canal after being piped.  The renderings showed what it may look like with and without developed recreation trails.  The interesting idea shown was to take some of the water which is saved from the piped canal underground and pipe it into a shallow brook built above the canal, creating a water feature along the trail which would be safer, and less liability laden.   Once their canal is piped, the same respondent also shared a vision for a two to three acre “offline park” in areas where the R.O.W. is widest.  This would include picnic facilities, etc. and “would really be a nice amenity to have next to a recreational trail, and quite an opportunity”.  Another respondent mentioned a canal design he knows of which was done well and is well used:  

·                    I think it’s a good idea.  I’d like to see open water.  I think it adds to the life of our communities.  At the Applied Tech Center in town here there is an irrigation canal that runs through there, and one of the local landscape architects did a design through there and it’s a wonderful treatment of the canal that people can use very safely.  I think it can be done.  I think it ought to be done.

There were some concerns that were summarized by the respondents.  One concern had to do with the way in which a signed agreement would be carried out by the city or agency responsible for the recreational trail development.  The respondent expressed some concern that some of the key issues in the agreement may not be carried out as agreed upon, will be forgotten as time goes on and may not even be honest on the part of the city.    Another respondent expressed the need for a “comprehensive watershed planning unit” in which all parties involved in the whole watershed unite their efforts to improve the systems and take the blinders off that cut off their vision at the political lines where their responsibilities end and another’s begin.

·                    We are all in this together.  The property owner benefits by having it right through their property because they own right up to the canal, the municipality because they put their storm drain water in there and the canal company because they distribute water in there.  So, rather than spending money on lawyers to fight each other we could spend that same amount of money to make improvements in infrastructure to handle that.

Another issue that was brought up had to do with the cost in time and money in concentrating on trying to turn some canals, which are full of hurdles such as property acquisition, into recreational amenities.  The argument expressed had to do with leaving them alone and “go to where you are developing rapidly right now and put in place” the programs that you are trying to put in place in these difficult areas “and just make it part of your development cost”.  The point being that it is best to know when to fold the hand you have and concentrate your efforts on canals that have the most potential for development.

·                    I'm all for it (a trail) they have always talked about connecting the parks so that people could bike and walk along it all the way back (to the mountains) and there is a trail to the high school.  But the problem is there is no right-of-way there for the rest of the way and all these people say not in my backyard.  And physically we have been encroached upon so much that I don’t think we have any spare right-of-way to use.  So that makes it real tough.

Conclusion

Question #20 which involves permission for recreational use issues, should be expounded upon:   In the case of a canal company owning an easement that crosses private property, the canal company is generally said to be the dominant estate owner and the private landowner is designated the servient estate owner.   The canal company would have an easement designation that is either exclusive or non-exclusive.  An exclusive easement means the canal company has all rights to the easement.  A non-exclusive easement which is when “both holder of easement (canal company) and owner of land burdened by easement (adjacent landowner) have rights to use property” Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d at 1229, (Colo. 1998).   According to the ruling of this case,  “Easement, regardless of manner of its creation, does not carry any title to land over which it is exercised, nor does it serve to dispossess landowner.”  It goes on to say that this rule “is altered somewhat in case of easement that is clearly and expressly designated as exclusive, or for the sole enjoyment of easement holder. In a non-exclusive easement, the “owner of servient estate enjoys all right and benefits of proprietorship consistent with burden of easement, while rights of owner of dominant estate are limited to those connected with use of easement.”   So, where easements are involved, the consent of both the servient estate owner and the dominant estate owner is necessary for the right to provide recreational trail use.

Greg Hoskin, a Grand Junction Attorney representing four canal companies which are being petitioned for trail development, stated that  “The city of Grand Junction right now is doing a study with four irrigation companies regarding demand for use but to my knowledge…most canal companies have a dominant easement on the right to use the property.  Underlying uses by other landowners can grant additional uses as long as they don’t interfere”  (Greg Hoskin, personal communication).  This coincides with the case Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d at 122, which holds that “Unless intentions of parties are determined to require a different result, owner of servient estate may make any use of burdened property that does not unreasonably interfere with enjoyment of easement by its owner for its intended purpose.” 

Underlying landowners can give valid permission to use the canal banks without the permission of the canal company or Water Users Association, only if such use (recreational trails) does not “unreasonably interfere” with the use of the easement.  Therefore, it could be concluded that permission would be required since most canal companies and WUA’s are likely to take the position that the use of canal banks for recreational purposes will result in unreasonable interference with their operation of the canal and irrigation systems.  

In addition, Utah has a statute that specifically calls for “written permission”  from the “owner or owners”  of a R.O.W. of “any established type or title” for any canal.  This could, of course include easement holders.   Here again there could be a conflict that can exist in determining what the term “otherwise” entails and whether a recreational trail that shares the maintenance road or uses a separate path is legally considered an “obstruction”.  

According to a Utah Statute, U.C.A. 1953, 73-1-15:

“Whenever any person, partnership, company or corporation has a right of way of any established type or title for any canal or other watercourse it shall be unlawful for any person, persons, or governmental agencies to place or maintain in place any obstruction, or change of the water flow by fence or otherwise, along or across or in such canal or watercourse, except, as where said watercourse inflicts damage to private property, without first receiving written permission for the change and providing gates sufficient for the passage of the owner or owners of such canal or watercourse… Any person , partnership, company or corporation violating the provision of this section is guilty of a misdemeanor and is subject to damages and costs.”

The issue of water quality brought up in question #24 should be further explained.  According to Jonathan Clegg, assistant superintendent of Provo River Water Users Association, conversion of canal water into domestic water is a common practice. For example, according to Mr. Clegg, capacity rights in the Provo Reservoir Canal were historically held by metropolitan water districts, but were often assigned to irrigation companies for agricultural purposes.  As development encroached onto farmland these water rights have slowly been transferred to domestic or secondary purposes.  (Jonathan Clegg, personal communication)

The degree to which there is a concern for water quality in open canals used for recreation purposes was not shared by all the respondents.  According to Clegg,  water quality in open canals which are used for recreation was a concern because “water treatment plant operators are under increasing regulations by EPA to improve the quality of their source water.  Cleaner source waters are easier and less expensive to treat, the generation of disaffection by-products is decreased and the risk of waterborne disease outbreak is decreased.”   However, Terel Grimley, President of Utah Water Users Association, pointed out that “Most water sources, other than wells, have a recreational use prior to being diverted for treatment for domestic use” (personal communication). This would indicate that while water quality is a concern, the degree to which it is a concern varies depending on who you are talking with.  Although, water quality is always of some concern along recreation corridors, especially in regards to dog and equine feces.

The general feeling expressed by canal managers throughout the interviews, regarding opening their corridors to the public and the resulting potential benefits to the overall community, was optimistic.   As long as their particular interests are considered and their day to day activities are unencumbered, there were no serious objections to trail development.  The need for a “win-win” solution came up many times throughout the interviews, which shows that each of the interviewees are, for the most part, amenable to working with the respective communities.