Sandy River Navigability FAQs
In 1995, the Oregon State Legislature enacted ORS 274.400 to 274.412. These statutes provided a clear process for determining the ownership of the bed and banks of Oregon´s waterways by making a determination of navigability of a waterway. The Land Board later adopted administrative rules to guide the navigability study process (OAR 141-121-0000 through 141-121-0040). Soon thereafter the Division began to receive requests to conduct navigability studies. As of the date of this brochure, eight study requests have been submitted to the Division for segments of the Sandy, North and South Santiam, Rogue, South Umpqua, John Day, Trask, and Kilchis Rivers.
|Questions & Answers|
Q. What is a navigability study?
A. A navigability study is an in-depth investigation of the historical use and physical condition of a waterway prior to, and since the time of statehood. To conduct such a study, it is necessary to search historical records contained in state archives, universities, historical societies, government agencies, companies, libraries and museums, among other sources of information. Experts specializing in anthropology, geology, and hydrology must also be contacted. The research is compiled into a report that clearly portrays how the waterway has been used over time, and what changes have occurred in its flow and course. This information is compared to the federal test for title navigability, and a navigability determination is made based upon the evidence.
Q. What is the federal test for navigability?
A. Federal courts have developed the following test to determine whether a waterway is "navigable" for "title," that is, public ownership purposes:
The waterway must be capable of, or susceptible to use as a highway for the transportation of people or goods, using customary modes of trade and travel on water, in its natural and ordinary condition, at the time of statehood.
If the evidence collected in the navigability study supports the requirements of this test, then the Land Board may assert state ownership of the bed and banks of the waterway.
To expand on this test further, the federal courts have determined that the use, or potential use by almost any type of watercraft (for example, canoe, ferry, or ship) is sufficient to determine navigability for ownership purposes. Further, as indicated in the test, the courts have also found that the use did not have to occur in 1859 (when Oregon became a state); it is enough that it could have occurred. Uses of a waterway that have been historically documented but no longer exist can also help prove a waterway is navigable (for example, log drives or steamboats).
The McKenzie River case, decided by the U.S. Court of Appeals in 1982, confirmed that log drives and commercial tourism (that is, drift boat fishing guides) were sufficient evidence to prove navigability and, therefore, public ownership to a waterway´s bed and banks.
Q. Why is the federal government involved in this?
A. When the original thirteen states took sovereignty of their land from the British after the American Revolution, those states became the owners of the land underlying what are termed "navigable" waters, as well as the land underlying tidal waters. Under the Equal Footing Doctrine (which was adopted by the Confederated Congress in 1787), the federal government granted the same rights of ownership to all of the states entering the Union after the thirteen original states. Therefore, when Oregon was admitted to the Union in 1859, it became the owner of all land underlying both the navigable waterways and tidal waters within its borders as a part of its sovereignty.
Q. Why is the Division doing this now? 1859 was a long time ago.
A. Yes, 1859 was a long time ago. However, despite the fact that nearly 150 years have passed since the time Oregon became a state, the rights of the public to the ownership of the bed and banks of land underlying what were then navigable waterways did not go away just because the State of Oregon did not take any action since statehood to assert a claim of ownership.
The public has always had a right to request that the Land Board direct the Division to conduct a navigability study. However, as a result of the enactment of new laws and administrative rules, the public became more aware of the navigability study process. In 1996, the Sandy River Chapter of the Association of Northwest Steelheaders submitted the first request for the Division to conduct a navigability study on the Sandy River.
Q. The Division received eight navigability study requests. Why did it pick the Sandy River request to determine first?
A. "First come, first served." The Sandy River is first primarily because it was the first request received after enactment of the new navigability study process.
Q. My deed says I own to the center of the waterway. Is it possible that I really do not?
A. Yes, many deeds state that the owner of waterfront property owns to the center of the stream. However, since a deed can only convey interests actually owned by the seller, and because the bed and banks of all navigable rivers were given to the state at statehood in 1859, there will be situations where the state is the true owner of the submerged and submersible land regardless of what a deed may say.
Q. What happens after the Division completes the Draft Navigability Study Report for the Sandy River?
A. The process of determining the navigability of a waterway consists of eighteen steps. The prescribed Draft Navigability Study Report is Step 10 in this lengthy process. The public is provided with a number of opportunities (Steps 3, 6, 11, 14 and 17) to comment.
Once the Draft Navigability Study is completed, the Division will hold public hearings to obtain input. The public comments will be analyzed and summarized, then presented to the Land Board for review, along with the Draft Navigability Study Report. Based on the public comments received, the Draft Navigability Study Report may be revised to reflect suggested changes prior to the Division presenting it to the Land Board. The Land Board will then hear additional public testimony. As appropriate, the Division will then make additional changes to the Draft Navigability Study Report and use it as the basis to prepare a Final Navigability Report. This report will then be presented to the Land Board for action. The Land Board will then declare the nature and extent of the state´s ownership claim on the Sandy River based on the findings and conclusions contained in the Final Navigability Report.
If the Land Board adopts the final report, the Division will prepare a written declaration of the state´s ownership claim, which will be published in newspapers and sent to affected property owners and interested persons. Throughout this process, the public will be kept closely informed of the progress of the study through the Division´s newsletter and website, and notices published in newspapers and sent to landowners and interested persons.
Q. What happens to property owners along the Sandy River if the Land Board declares the bed and banks of the waterway to be publicly owned?
A. If the Land Board asserts a claim to the ownership of the bed and banks of the Sandy River based on the findings and conclusions of the Final Navigability Report, property owners could be affected in several ways. Such an assertion means that the bed and banks of the Sandy River are, in the opinion of the State of Oregon, publicly owned. Consequently, it would be the state´s position that the public has the right to use the bed and banks of the water to the line of ordinary high water for activities such as fishing and boating.
Such an assertion would also mean that the state would act as an owner of the waterway and would require persons to obtain permission from the Division for certain uses of the waterway (for example, constructing docks or moorages, removing sand and gravel, or for placing fiber optic cables and pipelines across the river).
Q. If the Sandy River is determined to be navigable, will the conflicts between users and riparian owners end?
A. Not necessarily. However, regardless of who owns the bed and banks of the Sandy River, the fact remains that certain offenses such as littering, reckless burning, and drunkenness are misdemeanors no matter if they occur on publicly or privately owned land.
Q. Of what use, then, is a determination of navigability?
A. A decision by the Land Board to assert or refute an ownership claim to the bed and banks of the Sandy River based on the results of a navigability study will provide an immediate degree of certainty to many concerned Oregonians.
If the Land Board asserts a claim of ownership to the bed and banks of the Sandy River, riparian landowners will know that the boundary of their property ends along the river at the line of ordinary high water. Similarly, river users will know that below that line, they have the right to use the publicly-owned land for legal activities without fear of arrest by law enforcement officers or challenges by upland owners. Tax assessors will be able to revise their records accordingly, and law enforcement officials will know when to issue citations for a trespass.
Q. Will a declaration of state ownership of the bed and banks of the Sandy River reduce my property taxes?
A. Possibly. However, the specific amount of any reduction in your property taxes will depend on how much of the land indicated in the assessor´s records as owned by you is impacted by the Land Board´s claim, and the rate at which it is assessed. To obtain additional information on this matter, you should contact your county assessor.
Q. Will the Division survey the limits of the state´s ownership along the Sandy River? If not, how will I know what the line of ordinary high water is?
A. No, the Division will neither survey nor establish the line of ordinary high water should the Land Board assert a claim to the bed and banks of the Sandy River. However, in most instances, it is relatively easy to determine the line of ordinary high water based on changes in vegetation and erosion patterns. The Division is confident that most riparian owners and waterway users will be able to easily determine where this line is, based not only on the change in vegetation, but also on the owner´s own observations of the behavior of the waterway over time.
It is important to note that the line of ordinary high water is not the limits of flooding.
Should you have any questions, please contact either:
Jim Paul, Assistant Director 503-986-5279
Chris Castelli, Senior Policy Analyst 503-986-5280