Overview

Recently, three bills have been introduced in the Oregon legislature that would affect the public right to use the waterways in the State of Oregon for recreational purposes. These include the following:

• SB 423, Introduced at the request of the Association of Northwest Steelheaders
• SB 1014 (see amendments), Introduced at the request of Coalition for Oregon River Rights
• SB 1028, Introduced at the request of Senators Ted Ferrioli (R-John Day) and Kate Brown (D-Portland).

Some observations regarding these bills are provided below.

In addition to activity on the legislative front, the Oregon State Attorney General issued an opinion last week regarding navigation on Oregon's waterways (read full opinion). This opinion states in part:

Even if the bed of a waterway is privately owned, the waterway may be used by the public for certain purposes if it meets the state test of navigable-for-public-use (the "public use doctrine.") A waterway is navigable-for-public-use if it has the capacity, in terms of length, width and depth, to enable boats to make successful progress through its waters. If a privately owned waterway meets this test, the lawful public uses generally include navigation, commerce or recreation. Recreation in this case includes use of small boats for pleasure and fishing, as well as swimming. The public may use the land adjacent to a waterway that is navigable-for-public use as long as the use of the adjacent land is "necessary" to the lawful use of the waterway.

American Whitewater is in contact with other groups working on the legislation. As we develop a formal position, we are seeking additional input from whitewater boaters who recreate on Oregon's rivers.

Review of Bills

As introduced, all of these bills have concerns relevant to whitewater boaters. Note that these only represent a few of the highlights.

SB 423
This bill classifies waterways into Class 1 or Class 2. By the definition of this bill a Class 1 waterway floatable by means of a boat or other craft during any portion of a year, regardless of the presence of shallow rapids, exposed cobble or other objects that may impede passage. Everything else that is not floatable by this definition would be a Class 2 Waterway. A Class 1 waterway would be available for recreational use while recreation on a class 2 waterway would require the express permission of the riparian landowner.

From a whitewater perspective there are a few concerns with this bill:

• Class 1 waterways would be further defined as at least 2500' downstream of the headwaters. What constitutes the headwaters is vague. The intent is to eliminate the headwaters of the Metolius as a navigable waterway although implications for other waterways are unclear given the ambiguity over the term headwaters.
• The bill would restricts the use of a waterway at a hydroelectric generating facility. Access and safety issues related to hydroelectric facilities are appropriately negotiated through FERC and an additional layer of state regulation is not necessary and could impact recreational use of rivers near such facilities.
• A provision is included for a state agency to restrict the use of the waterway which would seem to leave the door open for restrictions on the type of use (e.g. a ban on kayaks on a specific section of river).
• The State Land Board could also adopt rules that are necessary to protect the public health and safety which calls to mind attempts in some states to ban waterfall running, highwater runs, or other aspects of the sport.

SB 1028

The most troubling aspect of this bill, in addition to some of the concerns outlined for SB 423 above, is that it sets up a fee for usage of waterways with a very vague vision for how these fees would be used or benefit recreational users. As presented it sets up a very inefficient administration plan where most of all revenue generated would likely be consumed by the cost of administration and enforcement of fee collection. It's a classic case of trying to tack on fees for river recreation without any real plan. For additional arguments see AW's review of Boater Registration. Incredibly, in response to concerns over a need to register multiple boats, Senator Ferrioli has suggested a "driver's license" approach that would apply to paddlers.

SB 1014

The original version of this bill as first introduced attempted to define navigable waterways individually by river, leaving out several segments of interest to whitewater paddlers. There is also a provision in this bill for fees. A new set of amendments represents a complete overhaul of the bill (the naming of individual river segments is removed) and suggests that there may be some room for negotiation (see full text of the amendments).

In essence, the revised version of SB 1014 would create two categories of navigability: Navigable for Title and Navigable for Recreation. This represents a creative solution to the problem as it allows landowners to retain title while serving recreational needs to have a legal opportunity to paddle the river.

It would immediately declare all waterways that are floatable, meet the federal navigability test, and not currently declared navigable by the state of Oregon as Navigable for Recreation. The state will not take title to the streambed of any waterway declared navigable for Recreation. As an example, this bill would mean all landowners on the John Day River could maintain title to the streambed yet allow the public to use the waterway to the ordinary high water mark.

Of potential concern, the revised amendments declares that all segments of waterways of the state that have the capacity, in terms of length, width and depth, necessary to enable a boat to make successful progress through the waters, regardless of the presence of shallow rapids, exposed cobble or other objects that may impede passage, are open to the public, up to the line of ordinary high water, for recreational use. However, the amendments go on to note that "navigable for recreation" means the waterway meets the federal test for navigability. Some headwater areas, particularly those enjoyed for creeking do not meet the federal test for navigability.

Action Items

This is where whitewater boaters come in. AW can assist with providing information, observations, and technical assistance, but ultimately the folks in the legislature need to know that this is an important issue to their constituents. For now the action items include the following:

• Contact your state Senator, particularly if you are Kate Brown's district to express your dissatisfaction with the fee system as proposed in SB 1028. The issues of river management need to be dealt with separately from navigability.
• Note how you use the river. Indicate your support for legislation that keeps rivers open for recreational use (up to the line of ordinary high water) where one can use a boat to make successful progress through the waters, regardless of the presence of shallow rapids, exposed cobble or other objects that may impede passage.
• Please contact Thomas O'Keefe, Pacific Northwest Stewardship Director with specific input you have.