72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
SA to SB 928
LC 3688/SB 928-2
SENATE AMENDMENTS TO
SENATE BILL 928
By COMMITTEE ON RULES
August 23
On page 1 of the printed bill, line 2, after the semicolon
delete the rest of the line and line 3 and insert 'appropriating
money; and declaring an emergency.'.
In line 13, delete 'now, therefore,' and insert 'and
' Whereas the Legislative Assembly finds that it is in the
public interest to continue the public discussion towards
determining the most equitable and effective mechanism for
defining the limits of and managing public and private rights on
waterways not yet declared navigable; now, therefore,'.
Delete lines 15 through 25 and delete pages 2 through 6 and
insert:
' { + SECTION 1. + } { + Sections 2, 3, 4, 5 and 7 of this
2003 Act are added to and made a part of ORS chapter 274. + }
' { + SECTION 2. + } { + As used in this section and
sections 3, 4 and 7 of this 2003 Act:
' (1) 'Bank' means the portion of a waterway that lies between
the line of ordinary high water and the line of ordinary low
water.
' (2) 'Barrier' means an obstruction located in a waterway that
totally or effectively blocks the use of the waterway.
' (3) 'Emergency use' means:
' (a) To obtain immediate and necessary medical attention; or
' (b) To make temporary boat repairs to enable a user of a
waterway to continue passage on the surface of the waterway.
' (4) 'Landowner' means a person who holds recorded title to or
interest in real property.
' (5) 'Portage' means to carry a boat or vessel past an
artificial or natural barrier in the least obtrusive manner
possible while making a reasonable effort to minimize the effect
of the action on private property.
' (6) 'Waterway' means the John Day River between river mile 10
at Tumwater Falls and river mile 184 near Kimberly. + }
' { + SECTION 3. + } { + (1) A person may, without the
permission of a landowner, use:
' (a) The submerged lands of a waterway, and any portion of the
banks of a waterway that are under water, if the person is:
' (A) Boating, including anchoring the boat;
' (B) Angling;
' (C) Wading or swimming; or
' (D) Hunting, as long as the hunting occurs in compliance with
state statutes and applicable regulations of the State Department
of Fish and Wildlife;
' (b) An area of the banks of a waterway up to the line of
ordinary high water for any lawful recreation activity associated
with the use of the waterway; and
' (c) An area above the line of ordinary high water of a
waterway for portage or for emergency use, but the person using
the area is liable to the landowner for actual damages resulting
from the use.
' (2)(a) A person may not use a waterway or the banks and
submerged lands of a waterway for the following uses without
receiving the permission of the landowner:
' (A) Open fires;
' (B) Disposal of human waste;
' (C) Overnight camping; or
' (D) Discharge of firearms, except for the purpose of hunting
waterfowl.
' (b) A person using a waterway, or the banks and submerged
lands of a waterway, that is located on public lands may act as
if the person has the permission of the landowner if the person
complies with all applicable laws and the rules and policies
established by the land management agency that governs the use of
the waterway. + }
' { + SECTION 4. + } { + The Legislative Assembly declares
that landowners on a waterway have the following assurances and
remedies:
' (1) The use of the waterway or its banks and submerged lands
does not:
' (a) Grant an easement;
' (b) Grant a right to enter or cross private property to gain
access to a waterway, except for portage or for emergency use; or
' (c) Constitute hostile use for purposes of adverse
possession.
' (2) Landowners are not liable for damage to environmental
values, including habitat, fish, wildlife or water quality,
caused by another person in the use of a waterway or during
portage or emergency use.
' (3) ORS 105.672 to 105.696, and specifically the limitations
on liability under ORS 105.682, apply to landowners and to the
use of the waterway, or the banks and submerged lands of the
waterway, for recreational purposes.
' (4) Nothing in this section or section 2, 3, 5 or 7 of this
2003 Act affects the right of a landowner to engage in a farming
practice, as defined in ORS 30.930.
' (5) Landowners that suffer property damage specifically
linked to actions of persons engaged in activities allowed by
section 3 of this 2003 Act without the permission of the
landowner are eligible for compensation to restore or replace
property lost or damaged. Landowners may apply to the State Parks
and Recreation Department for compensation, out of the
Recreational Waterway Account established pursuant to section 9
of this 2003 Act, in the manner prescribed by the State Parks and
Recreation Department by rule. + }
' { + SECTION 5. + } { + (1) A person that violates any
provision of section 3 of this 2003 Act commits a Class A
violation.
' (2) Fines imposed as a result of conviction of a violation
under this section shall be deposited into the State Treasury for
credit to the Recreational Waterway Account established pursuant
to section 9 of this 2003 Act. + }
' { + SECTION 6. + } { + Nothing in section 2, 3, 4, 5 or 7
of this 2003 Act shall:
' (1) Affect or modify any treaty or other right of any Indian
tribe;
' (2) Affect lands held in trust by the United States Secretary
of the Interior for Indian tribes or individual members of Indian
tribes or other lands acquired by the United States Army Corps of
Engineers and administered by the United States Secretary of the
Interior for the benefit of Indian tribes and individual members
of Indian tribes; or
' (3) Affect the title to or ownership of the surface water,
the submerged lands or the banks of any navigable or nonnavigable
body of water, or the established portage routes within the
state. + }
' { + SECTION 7. + } { + (1) The State Parks and Recreation
Department is responsible for coordinating with local, state and
federal agencies to implement sections 3 and 4 of this 2003 Act.
The department shall establish a John Day River Advisory
Committee to advise the department on the implementation of
sections 3 and 4 of this 2003 Act.
' (2) The State Parks and Recreation Director shall invite
parties affected by section 3 of this 2003 Act to be members of
the John Day River Advisory Committee, including representatives
of local, state and federal agencies, landowners, recreational
interests, tribal interests and other interested parties.
' (3) The John Day River Advisory Committee shall work to
identify issues and concerns of landowners and the public on the
waterway and to identify methods to resolve conflicts between
landowners and the public as those conflicts may arise. The
committee may:
' (a) Investigate issues and concerns related to the waterway,
such as public health, access facilities, user education,
riparian zone protection and restoration, conservation of
natural, historic and archaeologic resources, protection of
public and private resources, compensation to private landowners
for damage as described in section 4 of this 2003 Act,
enforcement, signage for ownership and allowable uses.
' (b) Identify funds available from state, local and private
sources that may assist in the implementation of a plan for
reducing conflict along and managing the use of the waterway. + }
' { + SECTION 8. + } { + (1) There is created the Statewide
Waterway Public Use Task Force consisting of members appointed by
the State Land Board. The board shall appoint individuals that
represent a broad range of public and private interests affected
by the question of navigability of the waters of this state. The
board shall appoint at least one member of the John Day River
Advisory Committee created pursuant to section 7 of this 2003
Act.
' (2) The purpose of the task force is to study and make
recommendations regarding the most equitable and effective
legislative and administrative methods to bring a permanent,
statewide resolution to the ongoing controversy surrounding:
' (a) The rights of the public to use the beds and banks of
waterways of the state for which navigability has not been
determined; and
' (b) The rights of riparian landowners to control the use of
the beds and banks of waterways of the state for which
navigability has not been determined.
' (3) The task force shall consider the experiences of users
and riparian landowners along the John Day River as the task
force studies the issues of waterway use.
' (4) The Division of State Lands, with the cooperation and
assistance of the State Parks and Recreation Department, the
State Marine Board and the State Department of Fish and Wildlife,
shall provide staff support and assistance to the task force.
' (5) All agencies of state government, as defined in ORS
174.111, are directed to assist the task force in the performance
of its duties and, to the extent permitted by laws relating to
confidentiality, to furnish such information and advice as the
members of the task force consider necessary to perform their
duties.
' (6) A majority of the members of the task force constitutes a
quorum for the transaction of business.
' (7) Official action by the task force requires the approval
of a majority of the members of the task force.
' (8) The board shall select one of the members of the task
force to serve as chairperson.
' (9) The task force shall report periodically to the board and
present a final report, including recommendations for the most
equitable and effective permanent statewide resolution of the
controversy surrounding the use of waterways for which
navigability has not been determined, to the Seventy-fourth
Legislative Assembly, no later than January 31, 2007.
' (10) Members of the task force are not entitled to
compensation, nor may they be reimbursed for actual and necessary
travel and other expenses incurred by them in the performance of
their official duties. + }
' { + SECTION 9. + } { + (1) The Recreational Waterway
Account is established separate and distinct from the General
Fund. Interest earned by the account shall be credited to the
account. Moneys in the account are appropriated continuously to
the State Parks and Recreation Department, and shall be used by
the department for the implementation of sections 3 and 4 of this
2003 Act.
' (2) The Recreational Waterway Account shall consist of:
' (a) Moneys appropriated to the account by the Legislative
Assembly.
' (b) All fines from violations deposited into the State
Treasury and credited to the account pursuant to section 5 of
this 2003 Act.
' (c) Gifts, grants, bequests, endowments and donations of
moneys from public and private sources.
' (3) The department may apply for and receive gifts, grants,
bequests, endowments and donations of moneys from public and
private sources for purposes of the implementation of sections 3
and 4 of this 2003 Act.
' (4) The department shall deposit all moneys received under
this section by gift, grant, bequest, endowment and donation into
the Recreational Waterway Account. + }
' { + SECTION 10. + } { + (1) Notwithstanding ORS 274.404,
the State Land Board may not make a final administrative
determination of navigability for the John Day River.
' (2) If, prior to the effective date of this 2003 Act, the
Division of State Lands began the process of making a final
administrative determination of navigability for the John Day
River pursuant to ORS 274.404, the division shall immediately
halt the development of a navigability study and suspend all
further efforts in that regard. + }
' { + SECTION 11. + } { + (1) Sections 1 to 10 of this 2003
Act are repealed on January 2, 2008.
' (2) Any balance in the Recreational Waterway Account that is
unexpended and unobligated on the date of the repeal of sections
1 to 10 of this 2003 Act, and all moneys that would have been
deposited in the Recreational Waterway Account had sections 1 to
10 of this 2003 Act remained in effect, shall be transferred to
and deposited in the Common School Fund, and are appropriated for
expenditure in the same manner as other moneys in the Common
School Fund. + }
' { + SECTION 12. + } { + Section 3 of this 2003 Act becomes
operative on January 1, 2004. + }
' { + SECTION 13. + } { + This 2003 Act being necessary for
the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2003 Act
takes effect on its passage. + } ' .
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