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FAQs: Waterways & Wetlands

State-Owned Waterways

Yes, the public may use the waterway if it has the capacity in terms of length, width and depth, to enable boaters to make successful progress through its waters. Under the Public Use Doctrine, the public has the right to use waterways for navigation, commerce, recreation and fisheries, even where the bed is privately owned, and to make “reasonable, incidental use of the bed and banks.” The public may use adjacent land only if it necessary for the lawful use of waterway. However, it is clear that river users have no right to trespass on privately owned uplands – that is, land above the ordinary high water mark.
Private uses and smaller structures on state-owned waterways require a registration, which is a lower-cost, simplified authorization.
The State Land Board has exclusive jurisdiction to assert title to the submerged and submersible lands within the state. However, only after state ownership has been confirmed through litigation or upon completion of a navigability study by the Department of State Lands, is a waterway deemed “navigable.”
The word “navigable” is a legal term that means a waterway has been determined to have enough depth, width and length for passage, and that it was used “in its natural and ordinary condition” at statehood for purposes of travel and trade. The public has certain rights associated with the use of navigable waterways.
Regardless of who owns the submerged and submersible land of a waterway, one thing is clear: certain misbehaviors (such as offensive littering, reckless burning, etc.) are crimes no matter where they occur. If you observe criminal acts being done on the submerged and submersible land of a waterway, and want to end those activities, contact your local law enforcement agency.
Deeds sometimes describe property that could not be legally conveyed. Although title companies work hard to ensure that the buyer is legally entitled to all of the property described on a deed, their research relies in large part on verifying the “chain of ownership” contained in historical records. If a transfer of property many years or even generations ago was erroneous, and has not been contested over time, the mistake may go uncorrected. If the submerged and submersible land underlying a waterway is determined by the courts, or through the navigability study process, to be state-owned, the state has what is termed a “prior existing right” to the land in that waterway. Since a deed can only convey interests actually owned by the seller, and since the submerged and submersible land underlying all navigable rivers was 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. These issues depend on the facts of the particular situation, property, waterway or deed.
The people of Oregon own the submerged and submersible land underlying all navigable streams, rivers, and lakes in most cases up to the ordinary high water line. In addition, the people of Oregon also own portions of waterways that are subject to tidal influence. Exceptions to this public ownership are those parcels the state may have sold since statehood or that the federal government reserved or granted before statehood.

Wetlands & Removal-Fill Permits

DSL offers a free service to landowners to evaluate the likelihood of wetlands on your property. To request this service, use the Off-Site Determination Request Form [link]. Please note that this service only provides a preliminary assessment; if wetland mapping (delineation) is needed, e.g., to apply for a removal-fill permit, the services of a wetland delineation consultant will be required.
The removal-fill permit application requires that you provide certain technical information about the wetland or waterway involved with your project. If mitigation is required, a detailed mitigation plan involving numerous technical elements is required. An experienced consultant can help prepare the application materials and provide you technical support though the permit process to help avoid unnecessary delays.
If the stream is designated Essential Salmon Habitat you may collect up to one cubic yard of material per year using non-motorized equipment without needing a removal-fill permit. If the stream is a designated State Scenic Waterway, you will need a scenic waterway removal-fill permit for collecting materials. For all other waterways, you may collect up to 50 cubic yards of material per year without needing a removal-fill permit.
A federal Clean Water Act permit is usually required from the US Army Corps of Engineers. Some local jurisdictions also require a permit for work in a wetland or waterway. Contact your local planning department for more information.
If you are clearing vegetation that does not involve digging, grubbing or plowing the ground surface, you do not need a Removal-Fill Permit. It’s always a good idea to contact your local planning department for any local ordinances that might regulate this activity. If clearing vegetation will involve digging, grubbing or plowing the ground, contact the DSL permit coordinator for your county.
It depends on which type of permit you are applying for. General Authorizations are reviewed within 30 days. Most General Permits are issued within 40 days of application submittal. Individual Permits typically take up to 120 days but may be longer if there are issues that delay the review process.
It depends on the scope and scale of the improvement work. Some work can be done without needing a permit, .e.g., weed removal and planting native species. If you will be digging, grubbing or plowing in the wetland or below the ordinary high water line, then some form of approval from DSL will likely be needed.
Yes, if your project involves removing or filling more than 50 cubic yards of material in the wetland or waterway (or any amount of material in Essential Salmon Habitat waters or State Scenic Waterways). Check with the permit coordinator for your county before doing any work in the wetland or waterway on your property.
If the emergency involves an immediate threat to public health, safety or substantial property, DSL can issue you an emergency permit within five days, or if absolutely necessary, can approve the emergency work by phone. It is important to remember that emergency permits only authorize the minimum amount of work necessary to reduce or eliminate the threat.

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