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Sandy River Navigability Study Findings
.: Introduction :.
.: Discussion, Findings and Conclusions
 
Second Draft: September 6, 2001
In early February 2001, the Division of State Lands (Division) completed its first draft of the Sandy River Navigability Study. In mid-April, the agency held three public hearings, two in Troutdale and one in Sandy, to discuss the findings of this report, take public input, and answer questions. Following these hearings, the Division substantially revised the first draft of this study to incorporate additional evidence, and to address concerns raised by the public.
This document has been prepared pursuant to OAR 141-121-030(6) which requires that upon the completion of the public hearings concerning the Draft Navigability Study the Division shall submit to the Land Board:
  • A summary of all input received by the Division in response to the Draft Navigability Report, and
  • Draft findings and conclusions as to whether the Sandy River is navigable, citing information in the hearing record to support and/or refute the conclusion(s) made.
 

.: Background :.
 
The revised draft of the Sandy River Navigability Study Report was prepared by the Division of State Lands (Division) pursuant to the requirements of Oregon Revised Statutes (ORS) 274.400 to 274.412 and Oregon Administrative Rules (OAR) 141-121-0000 through 141-121-0040. It is the second report to be issued under these rules on the title navigability of the Sandy River from RM 0.0 to 37.5, and is a revision of the report issued by the Division on February 2, 2001. The purpose of the revised draft is to present:
  • A record of the historical use and physical condition of the Sandy River since 1859, when Oregon became a state, from RM 0.0 (the point of confluence of the Sandy River with the Columbia River) to approximately RM 37.5 (the point of confluence of the Salmon River with the Sandy River), and
  • A recommendation to the State Land Board (Land Board) as to whether this evidence is sufficient to meet the requirements of the federal test for navigability for public (title) ownership purposes.
    In addition, the revised draft specifically addresses concerns raised by the public about information presented in the February 2001 draft navigability study.
 
Who Requested This Study and Why?
 
In late 1997, the Sandy River Chapter of the Association of Northwest Steelheaders submitted to the Division a written navigability study request for the Sandy River from RM 0.0 to 37.5, pursuant to the requirements of ORS 274.400 to 274.412, and OAR 141-121-0000 through 141-121-0040. In their request the Steelheaders cited conflicts between river property owners and river users as the principal reason for needing such a study.
 
The Federal Test For Navigability
 
ORS 274.402(1) provides that the State Land Board "has the exclusive jurisdiction to assert title to submerged or submersible lands in navigable waterways on behalf of the State of Oregon." To determine if a claim of public ownership to the bed and banks of the Sandy River is justified, the State Land Board uses the federal test for navigability developed by the federal courts. To satisfy this test, a waterway must meet all of the following criteria:
  1. It must be capable of, or susceptible to being used as a highway for the transportation of people or goods;
  2. Using customary modes of trade and travel on water;
  3. In its natural and ordinary condition;
  4. At the time of statehood (which in the case of Oregon was February 14, 1859).
 
Draft Findings And Conclusions
 
Based on the evidence of the historical use and condition of the Sandy River, the Division believes that this waterway meets the requirements of the federal test for navigability. This evidence (cited below) indicates:
  • A favorable comparison exists between the present and estimated past flow rates of the Sandy River.
  • The flow of the Sandy River in 1859, when Oregon became a state, was likely greater than average due to higher than average rainfall reported in that year in nearby locations.
  • A strong likelihood exists that current and recent uses of the Sandy River could have been accomplished on the waterway at the time of statehood.
  • The Sandy River at the time of statehood was susceptible to use for log and railroad tie drives and Native American Chinook-type canoes.
  • Current recreational uses have similar draft requirements as did Chinook-type canoes.
 
The following findings lead the Division to reach these conclusions:
 
Condition of the Sandy River
  • The Sandy River is today, and was at the time of statehood, a fast moving and turbid river. In places near its mouth, it is often shallow; a condition noted in the reports of early explorers.
  • It was capable of being used for travel in 1806 to at least a distance of six miles by a canoe, and in 1872 to a distance of three miles by a sailing ship.
  • A government surveyor in 1855 considered the river to be "navigable" for at least 4.5 miles, and meandered its banks on his maps.
  • With the exception of the segment near its confluence with the Columbia River, and in the vicinity of Brightwood, the Sandy River has remained generally within the channel it currently occupies.
  • The flow of the Sandy River has been monitored at one site for 89 years, and at another site for 57 years. Therefore, its flow characteristics are well known.
  • The flow of the Sandy River varies markedly on a daily, monthly, yearly, and seasonal basis due to both natural causes and consumptive uses. However, its patterns of high and low water periods is generally predictable with its highest levels between November and May, and it’s lowest from July through September. 
  • The total amount of precipitation which fell in 1859 in the vicinity of the Sandy River appears to have been substantially greater than that which has been recorded in an average year at similar locations.
  • No significant alterations to the Sandy River are known to have been made by logging companies to facilitate the floating of logs down the waterway.
 
Historical Use of the Sandy River
  • Logging companies used nearly the entire length of the Sandy River under study to float their logs and railroad ties downriver to Troutdale from a number of upriver locations.
  • The number of logs and railroad ties floated in a single drive was often very large, consisting of tens of thousands of individual pieces.
  • The companies typically floated their logs and railroad ties during the spring.
  • The period in which most of this activity occurred was between the late 1800s and early 1900s.
  • The entire length of the Sandy River under study is used, often intensively, for recreational purposes (for example, boating, rafting, canoeing, kayaking, and drift boating.
  • The intensity of recreational use depends on the flow characteristics of the particular segment, accessibility, the type of recreational watercraft, and time of year.
 
 


 

.: Summary of Input Received :.
 
Public Outreach
 
During the course of this study, the Division had an extensive public outreach program to ensure maximum public participation. Notices of public hearings and the availability of draft navigability studies were published in local and regional newspapers. These notices, as well as a copy of each study, were also mailed to nearly 2,000 persons on the agency’s Sandy River mailing list. This list included the names of the owners of record of property adjacent the 37.5 mile stretch of the Sandy River under study. The Division’s internet website also provided access to such notices and copies of documents related to the topic of navigability. Not surprisingly, given the controversial nature of this endeavor, numerous articles have appeared in the press about the progress of this navigability study.
 
Public Input
 
Since early February 2001, when the Draft Navigability Study became available to the public, nearly 300 people have contacted the Division. These contacts have ranged from requests to obtain copies of the draft study to giving testimony at one of the three April public hearings which were attended by more than 100 people, nearly 50 of whom gave testimony.
 
Of those persons contacting the Division, 226 expressed an opinion concerning the merits of the study with 195 supporting, and 31 opposed to the conduct of this effort or an assertion of navigability by the Land Board. Two of the persons supporting the study also included the names of 43 other individuals favoring conduct of the study and an assertion of navigability. The Division, however, recognizes that the issue of the navigability of the Sandy River is controversial, with many more people than those who contacted the agency or attending hearings having an opinion.
 
When the Division made the draft navigability study available to the public, it requested that those reading the document provide comments on the study findings. At the Division’s three public hearings in April, this same request was made, but with greater focus. Specifically, the agency requested that those participating in the hearings provide comments on the following three questions:
  1. Was the evidence presented in the draft study factually correct?
  2. Does additional factual evidence exist that the study did not present which could be used to further support or refute the conclusions of the draft study?
  3. Based on the evidence presented in the draft study, does the Sandy River from RM 0.0 to 37.5 meet the federal test for title navigability?
 
Despite the extensive public outreach undertaken by the Division to obtain input concerning these questions, the agency received relatively little response to the first two questions. However, many comments were received regarding the third question.
 
First Question: Was the evidence presented factually correct?
 
With respect to the first question regarding the accuracy of the evidence presented, the concerns raised centered primarily on four issues:
  • Whether it was correct of the Division to state that the present condition and location of most of the Sandy River has remained unchanged since the time of statehood.
  • If the sources cited by Dr. James Farnell in his 1980 Sandy River navigability study report were reliable.
  • If mileages of travel upriver stated by early explorers and settlers are reliable indicators of the actual distance traveled.
  • What relationship exists, if any, between the use of the Sandy River today by kayaks, canoes, rafts and other watercraft and its navigability in 1859.
 
Discussion
 
To address the first issue, the Division conducted further research into the lateral movements of, and alterations made to the Sandy River. Based on this research, the Division remains convinced that with the exception of that part of the Sandy River near its confluence with the Columbia River and in the vicinity of Brightwood, the waterway has generally remained since statehood within the channel it currently occupies.
 
As for the condition of the channel of the Sandy River at statehood, the Division recognizes that there are reports of the blasting of obstacles from the riverbed to facilitate log drives or to clear log jams. Additionally, in the mid-1930s and early 1940s, several attempts were made to force the Sandy River at its mouth into the channel of what was then termed "the Little Sandy," and after the 1964 flood, the U.S. Army Corps of Engineers channelized the river in the vicinity of Brightwood and landowners armored the banks below the Stark Street Bridge. However, these alterations did not materially impact the overall course of the river or make it look substantially different than it would have at the time of statehood.
 
With regard to the credibility of the sources used by Dr. Farnell in his research on the historical use of the Sandy River, the Division retrieved and reviewed the majority of the sources he cited in his research. These sources were also reviewed by Dr. Stephen Beckham, Professor of History at Lewis & Clark College for content and reliability. The Division also listened to the tapes and read the transcripts of the 1983 legislative hearings that dealt with the issue of navigability and the Farnell report. Based on this research and review, the Division remains confident that the sources cited by Dr. Farnell were valid, and that they provide reliable insights into the historical use of the Sandy River.
 
The Division is aware that changes in the location of the mouth of the Sandy River over time could result in the relocation of mileage points along the Sandy River. Therefore, a physical feature said to be four miles above the mouth of the Sandy River in 1859 may, in fact, be located at a different mileage point today. This possibility is discussed in the revised draft.
 
The ability of the Sandy River to support current uses in its ordinary and natural condition (all other physical factors such as the condition and flow rates remaining the same) does provide evidence that the river could have been used at the time of statehood by similar draft and sized watercraft. This concept, known as susceptibility to use, is one of the requirements of the federal test for navigability.
 
Second Question: Does additional factual evidence exist that the study did not present?
 
Although the Division did not receive much additional evidence from the public as a result of its request, a number of comments were directed to the agency concerning perceived shortfalls in the evidence contained in the draft study report. Specifically, it was felt that more information should be presented on the following issues:
  • The fact that lumber mills in the Sandy River Basin built flumes to transport their products.
  • The flow rates for the Sandy River.
 
Discussion
 
It is correct that a number of flumes were built along the Sandy River to transport railroad ties. The largest of these structures, called the Bechill flume, was constructed in the early 1900s, over 20 years after the first log drives were reported to have occurred on the Sandy River. The research conducted by the Division does not indicate specifically why this flume and those connecting to it were constructed. However, with such a flume, railroad ties could be transported to market more easily and on a year-around basis, not just during periods of ordinary high water on the Sandy River. The fact remains, however, that for at least 20 years, there is evidence that much of the length of the Sandy River under study was used on a routine basis for the driving of logs and railroad ties. Furthermore, no evidence was found in the historical record to indicate that during this period of use, any splash dams were built on the Sandy River to facilitate the transport of logs and railroad ties.
 
The Division included in the revised draft considerably more information on the Sandy River’s flow rates. Unlike in the first draft, additional flow data for the Sandy River is presented in terms of exceedence levels – that is, what percent chance is there that the flow of the waterway will equal or exceed a given average rate. By adding this information, it is possible to obtain a much clearer idea of the flow regime of the Sandy River, and what the likelihood is that a given flow rate will occur. Typically, exceedence levels of 50% and 75% or 80% serves in the revised draft as the basis for discussion.
 
Third Question: Was the evidence presented factually correct?
 
The comments received by the Division with regard to whether the agency has presented sufficient evidence to meet the requirements of the federal test for navigability appears to reflect, not surprisingly, the views of a person regarding the need for the study. Whereas many property owners along the Sandy River do not believe the evidence is sufficient to meet the federal test requirements, persons indicating an affiliation with the Association of Northwest Steelheaders support the Division’s conclusion.
 
 
 
 
 




 
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