APPENDIX B. - INTERVIEW B

                 The following interviews are included in this appendix for the purpose of offering additional information that may not have been included in Chapter V.  The responses are not edited in any way and are verbatim. 

INTERVIEW B:

Canal Trail Questionnaire

·                    The purpose of this open-ended discussion is to obtain as naturalistic a response as possible.  The goal is to gauge general sentiments and put a finger on the pulse of the major concerns and issues revolving around the development of recreational canal trails.

·                    Based on research to date a few of the biggest concerns and issues include:

F.                   Liability of canal companies and landowners.

G.                   Increased O+M costs.

H.                  Law enforcement protection for company, landowner and trail user.

I.                     Private property owner rights.

J.                    Canal company operator’s rights.

Date of interview: 11/ 18 / 98  9 A.M.

Name: Floyd Baham

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

Address and Telephone #: 138 W. 1300 N.

                                                Sunset UT 84105

774-6373

Administers to what canals? 

·                    Manages the Davis and Weber Counties Canal Company

·                    We maintain the main canal. From our canal we have stockholders that take water at different ditches along the canal.  We have 20-25 ditch companies that take water off our canal and they tell us at the beginning of the water season which ditch their going to take it out of and how many shares they are going to take off of that ditch.  We measure the water at the canal and how that’s distributed amongst their users along that ditch is up to the water master on each one of those ditches.  We wont deliver water out any of those gates unless we have a water master to contact.  There may be a couple hundred people on some of the bigger ditches and we don’t want to have to be talking with 200 people on one ditch so what we do is have one water master for each ditch.  So the water master speaks for all the shareholders along each one of the 20-25 ditches.

Which of these are being considered for trail development by others? (Questions specific to these canals are italicized)

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

Endpoints (cities, towns, river diverted from or any other landmarks)

·                    From the Mouth of Weber Canyon to Layton.

The total length

·                    15 miles long

Capacities and depths

·                    We have a one to one slope. 31 ft. from bank to bank and about 20 ft. on the bottom.  The capacity was built to hold about 300 S.F. But we have been running 250-270 S.F. of water.

Width of the canal R.O.W. and the canal itself

·                    In some places we have a 100 foot right-of-way.  The way they define that right of way is from the center of the canal. If you look at the deeds it says we deed to the canal company 50 ft. from the center to both sides.  Some places we only have a 37 ft right-of-way.

In what year did canal construction begin?

·                    Started Digging in 1881 and was incorporated in 1884 and have been delivering since then.  Originally it was a dirt canal where they divert water up at the mouth of Weber canyon.

In what year did the canal open?

·                    See above

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

·                    No.

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?

·                    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.

3-       How aggressively are these efforts enforced?

·                    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. 

·                    One thing about the canal, it has been there for over a hundred years and its not the responsibility of the canal company to fence it but its actually the responsibility as the cities give building permits for people to build along the canal one of the requirements is that the cities require people to put fences along the canal.  There are some older homes along there that have been there for fifty years or better. Some people think we are responsible for repairing the fences. We don’t own the fences.  I think the canal companies have a certain amount of immunity as far as not have to put fences up in areas.  Its been there for hundreds of years and someone wants to fence it, it belong to them.  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.  So, if we catch them we’ll run them off, but we are not going to have the police there twenty four hours a day to keep them from jumping the fences.

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

·                    If we catch somebody walking along there. In South Weber we’ve got people that ride there horses, I see horse prints all over there.  They do it probably in the evenings, but I’m not about to send somebody up there after working hours to try to catch somebody riding on their horse.  Generally what happens is the minute you give anybody any legal right to walk or run along side of a canal its difficult to say yes we’ll let some of the older people walk along there but we don’t want any kids there and so the best thing to do is just say no trespassing that means everybody.  That kind of eliminates the liability on your behalf.

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 claims?

·                    I’ve been here for eleven and a half years and we haven’t had any in that time.  The only time that I can remember is in the South Weber area where somebody’s horse got in the canal and the horse died and the owner of the horse wanted us to pay him for the horse and it was his horse that broke through the fence and wanted us to pay.  We said no we are not about to pay that.  We haven’t heard anything about it since.  But other than that, we had a couple of kids up in the South Weber area that got on the canal road with a four wheeler, riding along there fast and lost control and went crashing into the canal. They were ok, and we never heard anything about it legally.

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

·                    We carry a certain amount of liability insurance just incase somebody does sue you.  Just because somebody sues you and you got a feeling that they are not going to win anyway because they shouldn’t of been on that property it costs you money just to defend yourself even though you know your right.  Other than the signs and the gates along the road and the liability insurance, that’s about as far as we go.

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 canals your company administers too?

·                    We’ve talked about it dozens of times.  The problem we have is we are a non-profit stockholder owned company and the expense is too….you take a canal that’s 20 feet across the bottom and 33 feet across the top, if you were to put that in box culverts you would be looking at about a couple hundred dollars a foot.  We had a study done a few years ago about piping the entire canal and they figured it would cost somewhere, if we did all the work ourselves, it would cost about ten million dollars.  The thing we’ve looked at as maybe what we should do, and that’s what I talked about with the director of Clearfield parks and rec. about.  We would love to be able to pipe the canal, but financially as a company we can’t do it.  Now if somebody wants to use it and maybe…we’ve done in areas where we had some subdivisions that have come through and we said if you want to go across that canal then you are going to have to pipe that section.  When North Ridge High School was being built that open canal was going to run through the high school and we knew that was going to be nothing but problems.  So we went to the school district and they furnished the pipe, fifty four inch reinforced concrete pipe, and we put it in with our own labor.  But even when you get that donated it still costs you a certain amount.  We’ve done a section where the pipe was paid for by a developer but it still cost us for our labor and the bedding material for the pipe cost about eight-ten thousand dollars which is not even including the labor. With labor figured in it would probably cost about twenty five thousand dollars. 

·                    One thing I told the city is if they could use the canal right-of-way and maybe get the gas company, the power company, AT&T.  The idea there would be to contact these people and say you know what you could get from one street to another by just going down the canal road.  There’s nothing on that canal road there’s no gas lines, water lines…some of them go underneath the canal but if they were to go along the canal they wouldn’t go deep enough to be concerned about that.  And then if we could get them to pay a certain amount of money for those power lines, gas lines, power optics, cable TV, whatever it might be.  Maybe if we could get a certain amount of money, not as a lump sum but maybe as an annual payment, you may get enough money coming in that you could actually pipe that canal at somebody else’s expense.  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. 

·                    The problem with an open canal is you get people complaining about weeds and rats getting in their yards.  Used to be they would just burn the edges of the canal to clear it out but now as development encroaches you get people with trees and shrubs along there so now we can’t burn.  It gets to be a burden trying to get in there to maintain.

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

Typical Maintenance agreement 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.”     

 Colorado:  1.   Audubon section of the Colorado River Trail which parallels the Redlands Canal. (Mesa Co. indemnified)

4.        Highline Canal  (each respective city)

5.        Westminster and Farmers Highline Canal. (Westminster)

·                    We would not even sigh an agreement unless we had some kind of indemnification clause in there.  We do have one in the one drawn up from Clearfield city but if we didn’t have that we are not about to let anybody on that canal.  We’ve drawn up a draft agreement and that has to be run by our board, and they are going to have to say yes it sounds ok and then we are alright with it.  Unless the board says we don’t want to do it under any condition, but I thing the board has looked at it and said we want to work with the city and do whatever we can, but we don’t want to cause ourselves a problem.  If someone wants to cross our canal they do it at their own expense.  We are not going to do it if it costs our stockholders money.  If our engineers have to look at it (the canal) then they have to pay for it.

9-       Are you aware of Utah’s Recreational Use Statutes?  If so, how much do you know about it?

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

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?

·                    (No information due to technical problems)

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? If so, which concerns?

·                    We don’t want them to come along and say that we are going to have our trail along your canal so now we want you to come in and mow that more often now and make sure we don’t get any big weed along the canal.  If they start putting demands on us just because the trail is there then the trail won’t be there.  We just won’t let them use it, period.

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

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.

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

In terms of:

___% Public

                                100% Private along the length in question.

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

·                    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. 

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

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

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

·                    No

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.?

·                    See Above.

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

·                    We don’t have a relationship in regards to the canal. 

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

·                    As people build up to the canal we cant spray. So its increased our maintenance to maintain the canal because of the encroachment of the building that’s going on as new homes are being built next to the canal. It actually increased our costs to maintain them.

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.

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

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?

·                    N/A. See above.

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

·                    N/A. See above.

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?

·                    N/A. See above.

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

 (ALLOW FOR VOLUNTEERING OF ISSUES FIRST)

B.       Liability ­ Why?

-  Attractive nuisance

-  Liability should cover entire corridor not just path.

H.      Safety ­ Why?

I.         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.

J.        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 and get spooked, bicyclist not paying attention.)

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

K.      Funding ­ Why?

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

L.       Lack of Management entity ­ Why?

M.     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.

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

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.)

·                    Mainly, what I would like to see is some kind of revenue generated as I’ve stated from utility companies.  The ideal situation would be to pipe the canal and we wouldn’t have to worry about the danger of someone falling in and drowning.  If it was covered there would be just a flat trail there.  That would be the ideal situation, and I think somewhere down the road that will happen. Most likely on the lower end as apposed to the upper end of the canal where there is a larger cost because of the larger capacity of canal.  Its still costly but not as costly, we would need that fifty four inch reinforced concrete pipe on the lower end of the canal for about $60 to $62 a foot. On the upper end you would be looking at least $250 a foot.

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?

·                    Yes, Clearfield.  We have a draft agreement and its got to be brought to our board of directors for approval. 

·                    What we are trying to do now with the city and we’ve met with the county, is trying to come up with an agreement that will say: yes we’ll let you use the canal to walk along or something but you give us something in writing that says you take full liability for anything that might happen.  Somebody trips or falls in the canal and drowns or even when theres not water in the canal they trip on the bank and fall