Action Alert: Navigability in Oregon
On April 21st, 2005, the Oregon State Attorney General issued an opinion affirming the rights of Oregon citizens to use their public waterways (read full opinion). Specifically the AG found that under current state law the public has the right to use Oregon's rivers for recreation under two conditions:
- If a waterway meets the federal test for navigability (i.e. "highways for navigation and commerce"), the state can not interfere with the public use of that waterway for navigation or recreation.
- If the river does not meet the federal test for navigability (the case for many of the creek runs that Oregon is famous for) and the river bed is thus privately owned, the waterway is still navigable for public use if boats can make successful progress.
Finally, the public may use land adjacent to the waterway as long as that use is "necessary" to the lawful use of the waterway.
Senate Bill 1028 is now moving through the state legislature, a bill that will limit the rights of the public to use Oregon's waterways. Despite the claims of some who have supported this bill, this legislation would greatly reduce public rights as articulated in the AG's opinion and could lead to the privatization of the state's public waterways. In addition a new fee program would be imposed that would charge the public for implementation of a complicated new set of regulations that would severely reduce the opportunities for the public to enjoy Oregon's rivers. This threat would be comparable to the privatization of Oregon's beaches and would have a significant impact on recreational opportunities for state residents, and on the image of the state as an international destination for river recreation.
Action Item
Call or email your elected officials to express your concerns with SB 1028 and SB 1066. Make the following points:
- We do not need a new regulatory framework to dictate the time, manner, type, and extent of recreational use on public waterways especially one that can greatly reduce the public rights to use of Oregon's rivers.
- The institution of a new fee structure for non-motorized use of public waterways is not justified.
- If you are a creek boater, note that you want to protect your continued ability to use waterways for recreation even if they do not meet the federal navigability standard (as supported by the AG's opinion).
- Note the importance of this issue to you as a resident who uses the public waterways and the economy of a region that provides world-class river recreational opportunities.
You can make additional detailed points depending on the time you have, but most important is to let your elected officials know that this issue concerns you. If the public makes some noise our elected officials will listen to the detailed criticisms several groups have articulated, but if not we will be ignored.
The Details
AW has identified several concerns with SB 1028 and it is critical that paddlers contact their representatives in the state legislature. We encourage paddlers to draft their own comments based on personal experience but the following issues represent areas of concern:
The latest version of the bill (revision 5) defines Class 1 waterways as "natural waterways" that are "free flowing" and Class 2 waterways as all those that are not Class 1 waterways. A person may not use a Class 2 waterway without first obtaining the permission of the riparian landowner. Under one interpretation of this bill one might conclude that since many rivers in the state might can no longer be considered "natural waterways" or "free flowing", you would require permission of the landowner to use them for recreation.
The bill calls upon the State Land Board to adopt and administer a new set of regulations that will specify the time, manner, type and extent of recreational uses on waterways throughout the state. While different agencies already manage use on the state's waterways, this would add a whole new layer of regulations and the open-ended nature of the mandate is cause for significant concern. The bill includes a provision for the regulations to be modified and reviewed on into the future leading to an ever-evolving set of regulations that would differ between rivers.
To administer this new set of regulations and fund their ongoing modification and review a new fee and boat registration program would be implemented. In other words, recreational boaters would be directly charged for the development of regulations limiting public use of Oregon's rivers.
The legislation proposes the formation of an advisory committee to aid the State Land Board in administration. Responsibilities of this committee would include the proposal of modifications to recreational use and identification of conflicts between land owners and recreational users. However, only two of the positions on this nine-member committee would be reserved for recreational users.
This bill includes a provision that an operator of a hydroelectric power facility may restrict the use of a waterway in and around the facility that the operator determines necessary to protect against injury or loss of life. While this may sound reasonable for public safety, the implications for whitewater boaters who enjoy recreational opportunities on bypass reaches is significant (e.g. Klamath, Sandy, McKenzie). The meaning of "in and around" is not defined and since the operator is given the sole authority to make the determination, there is no opportunity for consideration of the public interest as provided in the Federal Power Act. This bill would add a new layer of regulation regarding river access around hydro facilities that is appropriately managed through the FERC office of safety and negotiated through the federal licensing process.
The Metolius River is treated as a unique case, and defined in the same class as non-navigable waterways. As such, boaters would require permission of the riparian landowner to float any section of the Metolius River that flows past private land.
While the AG's opinion concludes that a land owner may not prevent the public from floating down a waterway (e.g. constructing a fence blocking travel along a waterway), the proposed bill notes that the regulations concerning navigability would not affect the right of a landowner to engage in farming practices (the obvious question is would this allow a landowner to construct a fence or otherwise inhibit navigation if that action were justified as a "farming practice"?).
This bill also imposes a new fee structure to manage all the new regulations that will be imposed (some will respond that the fees are to address sanitation and litter issues, yet no clear justification has been made for these needs beyond anecdotal conversations).
For Additional Information