FAQs: Waterways & Wetlands

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.

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Private uses and smaller structures on state-owned waterways require a registration, which is a lower-cost, simplified authorization.

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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.”

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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.

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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.

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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.

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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.

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