APPENDIX B. - INTERVIEW C

                 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 C:

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:

K.      Liability of canal companies and landowners.

L.       Increased O+M costs.

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

N.      Private property owner rights.

O.      Canal company operator’s rights.

Because this interview deals with the thoughts of an individual with the governmental office of the Bureau of Reclamation and not with a canal company official, this questionnaire has been altered for relevance purposes.  “Canal Company” has been replaced with “Bureau of Reclamation” in key spots.  And certain questions were not asked (they follow with a “N/A”).

Date of interview: Wednesday, November 18, 1998  1p.m.

Name: Ed Vidmare

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

Address and Telephone #: Bureau of Reclamation

                                                1816 S. 302 E.

                                                801-379-1182

Administers to what canals? 

See List.

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

Provo Reservoir Canal (Murdock Canal) ­ Provo River

Ogden- Brigham Canal (Highline) ­ Ogden River

Steinaker Service Canal ­ Vernal ­ Uintah County (Existing Trail)

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

Provo Reservoir Canal- See Johathan Clegg interview

Ogden-Brigham Canal- See Terel Grimely interview

The total length

Provo- 23.0

Ogden- 24.2

Capacities and depths

Provo- 550.9, 5.7

Ogden- 120.1,  3.1

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

Provo- Canal- 18.0

N.      Ogden- Canal- 3.9

In what year did canal construction begin?

Provo- 1940-1950

Ogden- 1935-1937

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?

·                    We have a memorandum of agreement with Vernal city, so they have a right to use the operation and maintenance road on the Steinaker Service Canal as a recreation corridor. That is the only one we have in our jurisdiction.  There is no such thing as informal use. They either use or they don’t and if they use it, its illegal. 

·                    I haven’t heard of a lot of actual use in the water. People talk about a long time ago where people used to surf a canal behind a pickup or whatever they would use.  It was popular about 10 years ago.  

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?

·                    No, we don’t allow it.

3-       How aggressively are these efforts enforced?

·                    Legally we have the right to issue tickets for trespass which we do enforce every now and then.  Between us and the water users we drive up and down the canal a fair bit.  We mainly try to educate the people that they are trespassing, that it is government property. They don’t understand that there are different forms of government property that are open to the public and others that are closed to the public.  Mainly through education in order to maintain the legal liability you have to issue a few trespass tickets now and then

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

·                    N/A. See above.

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

·                    With just about every drowning the United States and the water users into suit, and the United States is quickly removed from the suit, the judge will always remove the United States from the suit.  The water users sometimes, sometimes they don’t have the luxury being left out of the suit but usually they will settle out of court. 

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

·                    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.  We also go through and 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.

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?

·                    The water users do. I’m on a technical committee, as a matter of fact the draft report is at my supervisor right now, I reviewed it yesterday.  The water users are looking at a master plan to pipe the canal (Murdock).  Its not for liability issues….i can’t say its not for liability, but that’s going to be a secondary benefit we get from piping the canal is that it will open up the corridor for recreational use if the communities want to persue it, we are not going to pay to create a recreation corridor.  If the communities want to come together and prove it establish it and maintain it then that will be allowed.  The primary reason is water quality.   This particular canal I think they are saying about 60-70% of the water is culinary, with just a small portion being secondary irrigation water.  So, there is a water quality issue and a water quality problem and controlling this for the entire canal will eventually become a complete culinary water supply system.  So, having an open water system for culinary water is just not the best thing in the world to do.  The main issue is to increase water quality and also to increase conveyance capacity.  Right now at the head of the Murdock canal we have 400 second foot capability with 325 at the end, and if we put it in a box culvert we could get 700 at the head and push a little over 400 out the tail. 

·                    Its all a matter of securing the funding and establishing a construction schedule.  Funding is going to be the biggest issue.  You are talking 80 million dollars.  So 26 miles and 80 million dollars is a big project.  The water users are going to have to do it the government is not going to go in and pipe the canal.  The water users are going to have to go in and prove that they are seeking sources of government funding to help do that but it will be a project accomplished by the water users.  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.

·                    Used to be the canals were strictly for agricultural use.  As you take the farms and turn them into subdivision you don’t have a need for secondary.  They say in the future a very very small percentage of the system will be irrigation. 

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)

6.        Highline Canal  (each respective city)

7.        Westminster and Farmers Highline Canal. (Westminster)

·                    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. 

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

·                    Yes.

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?

·                    I think the liability risks are greater along an open canal in that in an open canal especially concrete lined structure.  You don’t have to do a lot to mess up and get in the canal and then if its concrete lined you are not coming back out because its fairly swift, you have low structures, bridges, culverts, siphons.  You are not getting out of a concrete lined canal without a ladder structure you are not coming out on your own.  The murdock canal is a pretty good sized canal, 400 second feet. 

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?

·                    No.

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

____% Residential

                                ____% Agricultural

                                ____% Business

N/A-       Provo Reservoir Canal (Murdock Canal) - See Johathan Clegg interview

Ogden-Brigham Canal- See Terel Grimely interview

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

In terms of:

___% Public

                                ___% Private

O.      N/A-       Provo Reservoir Canal (Murdock Canal) - See Johathan Clegg interview

Ogden-Brigham Canal- See Terel Grimely interview

P.        

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

·                    Murdock is owned by us in almost 95% fee title.

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

·                    We do get the reserved right-of-way.  When we bought the Murdock canal in 1940 we enlarged it, in a few places we straightened it out and built siphons, and when we did that we turned back the land we were not using anymore and in a couple instances we just purchased a reserve right-of-way to take care of what we needed at the time.  Its not a big portion of the canal at all.  So, the Murdock is 95-98% fee title and the rest would be reserved right-of-way.  My guess on the Ogden-Brigham Canal is right about the same percentages.

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

·                    N/A- All are nearly 100% owned in fee title by the Bureau of Reclamation.

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.?

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

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

·                    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 get done paying it back, when they have repaid the entire construction amount it still remains in the name of the United States.  Its always United States Property.  So, they have signed an agreement with us to operate and maintain the facility.  Within the state laws they have have to maintain themselves as a non-profit organization.  So, they have to remain a non-profit organization or they would be taxed.  So, their assessments while they are repaying the cost of the facility their assessments might be a little higher.  After they have repaid the facility, most likely 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?

·                    We have six people in our offices here that deal with that problem everyday.  Six full time people that deal with the encroachment issues all the time.  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.  Its usually not a practice….if somebody comes to us before hand to request an encroachment we usually license them..if somebody comes in after the fact or if they go in on their own trying not to get licensed after the fact then it becomes a lot tougher for them to get licensed.

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

·                    Yes.  We 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. 

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

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

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

·                    No.

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 question # 21.

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

 (ALLOW FOR VOLUNTEERING OF ISSUES FIRST)

C.       Liability ­ Why?

-  Attractive nuisance

-  Liability should cover entire corridor not just path.

Q.      Safety ­ Why?

R.       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.

S.       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.

T.       E.  Funding ­ Why?

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

U.      Lack of Management entity ­ Why?

V.       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.

·                    Major concerns would be just liability concerns, water quality concerns, operation and maintenance concerns so that we have the ability to maintain it.  We had a canal failure in the Murdock canal a while back and fortunately at that time that area of Lindon wasn’t to developed there were four homes that got flooded but had that been a recreation corridor and half dozen people been swept away with that flood I’m sure we would have seen a lot higher legal bills than we did.  Although in retrospect it was actually spotted by a trespasser , the failure, was spotted by a trespasser.  Had he got killed who knows. 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. 

·                    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 do it 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. 

·                    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 a