72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 3688
 
                         Senate Bill 928
 
Sponsored by Senators BROWN, FERRIOLI; Senators ATKINSON,
  BURDICK, CARTER, CLARNO, CORCORAN, COURTNEY, DECKERT, FISHER,
  MESSERLE, MINNIS, MORRISETTE, MORSE, NELSON, C STARR
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Establishes process for development of recreation management
plan for recreational use of waterway. Provides assurances and
remedies for landowners on waterways for which recreation
management plan is developed.
  Identifies uses for which person needs permission of landowner
before using waterway or banks and submerged lands of waterway.
  Establishes Recreational Waterway Account.
  Requires State Land Board to direct Division of State Lands to
notify affected property owners adjacent to waterway or part of
waterway that may be subject of navigability study. Allows for
suspension of navigability study if recreation management plan is
being developed or implemented for waterway that is subject of
study.
  Declares emergency, effective on passage.
 
                        A BILL FOR AN ACT
Relating to waterways for which a navigability study has not been
  completed; creating new provisions; amending ORS 274.404 and
  274.406; appropriating money; and declaring an emergency.
  Whereas all waters of the state belong to the public as stated
in ORS 537.110; and
  Whereas the public has certain rights to make recreational use
of the surface waters of the state; and
  Whereas landowners have certain rights to utilize, control and
enjoy their property; and
  Whereas unmanaged and unregulated recreational use of the
waters of the state may impose a burden on landowners and public
agencies and threaten valuable natural resources; and
  Whereas the Legislative Assembly finds that it is in the public
interest to provide a pilot program for the comprehensive
management of the recreational use of certain waters of the state
in a manner that is consistent with and supportive of public and
private rights found in the Oregon Constitution, the Oregon
Admissions Act and applicable state and federal law; now,
therefore,
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Sections 2 to 5 of this 2003 Act are added to
and made a part of ORS chapter 274. + }
  SECTION 2.  { + As used in sections 2 to 5 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) 'Board' means the State Land Board.
  (4) 'Department' means the State Parks and Recreation
Department.
  (5) 'Emergency use' means:
  (a) To obtain immediate and necessary medical attention; or
  (b) To make temporary boat repairs to enable a user to continue
passage on the surface of the waterway.
  (6) 'Landowner' means a person who holds recorded title to or
interest in real property.
  (7) '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.
  (8) 'Waterway' means a segment of a river or other similar
fast-moving body of water that flows in a definite course and is
either:
  (a) The John Day River between river mile 10 at Tumwater Falls
and river mile 184 near Kimberly; or
  (b) A segment for which a recreation management plan is being
developed under section 3 of this 2003 Act. + }
  SECTION 3.  { + (1) The State Parks and Recreation Department
may, in cooperation with the State Land Board and the Division of
State Lands, develop a comprehensive, coordinated recreation
management plan for the recreational use of a waterway, including
the banks and submerged lands, and adopt the plan by rule. Prior
to adoption, the department shall submit a plan to the board for
comment and review and shall incorporate any changes made to the
plan by the board. The department shall develop a plan through a
collaborative process that includes affected parties such as
local, state and federal agencies, tribal interests, landowners,
recreational interests and other interested parties.
  (2) A recreation management plan may be developed to address
issues and concerns relating to the recreational use of
waterways, including public health, access facilities, user
education, riparian zone protection and restoration, conservation
of natural, historical and archaeological resources, protection
of public and private resources, compensation to private property
owners for damage described in section 5 (5) of this 2003 Act,
enforcement of statutes, administrative rules and ordinances, and
signage for ownership and allowable uses. A plan must include
detailed and specific implementation responsibilities, specify
that adequate funding has been or will be obtained, identify the
sources of that funding and designate a lead agency responsible
for the implementation of the plan.
  (3) The division may assist the department in the development
and implementation of a plan, including providing staff support
and funding through interagency agreement. The department and the
division shall provide periodic reports to the board on the
progress of the plan development and on the implementation of the
plan. + }
  SECTION 4.  { + (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, applicable regulations of the State Department of
Fish and Wildlife and a recreation management plan developed
pursuant to section 3 of this 2003 Act;
  (b) An area of the banks of a waterway within 10 feet of the
water's edge, but not above the line of ordinary high water, for
any lawful recreation activity associated with the use of the
waterway if the person complies with a recreation management plan
developed pursuant to section 3 of this 2003 Act; and
  (c) An area above the line of ordinary high water of a waterway
to portage or for emergency use, but a person using such an 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 permission of the landowner:
  (A) Open fires;
  (B) Disposal of human waste;
  (C) Overnight camping; or
  (D) Other uses specified by a recreation management plan
developed pursuant to section 3 of this 2003 Act.
  (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 permission of the landowner if the person complies
with all applicable laws, rules and policies established by the
land management agency that govern the use of the waterway. + }
  SECTION 5.  { + The Legislative Assembly declares that
landowners on waterways for which a recreation management plan
has been developed pursuant to section 3 of this 2003 Act have
the following assurances and remedies:
  (1) The use of a waterway or its submerged lands and banks 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, portaging or
emergency use under a recreation management plan.
  (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 waterways, or the banks and submerged lands of waterways, for
recreational purposes.
  (4) Nothing in sections 2 to 5 of this 2003 Act affects the
right of a landowner to engage in farming practices, as that term
is defined in ORS 30.930.
  (5) Landowners that suffer property damage specifically linked
to actions of persons engaged in activities allowed by section 4
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 department by rule. + }
  SECTION 6.  { + (1) A person who violates any provision of
section 4 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 7.  { + The State Parks and Recreation Department shall
submit a report, with the assistance of the Division of State
Lands, to:
  (1) The Seventy-third Legislative Assembly, no later than
January 31, 2005, detailing the effectiveness of recreation
management plans that have been implemented, the funding of the
implementation and improvements that may be made to the
development and implementation process.
 
  (2) The Seventy-fourth Legislative Assembly, no later than
January 31, 2007, on the overall implementation and effectiveness
of sections 2 to 5 of this 2003 Act. + }
  SECTION 8.  { + Nothing in sections 2 to 5 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 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 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 recreation management plans developed
pursuant to section 3 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 6 of this 2003
Act.
  (c) Gifts, grants, bequests, endowments and donations of moneys
from public and private sources.
  (3) The department and the Division of State Lands may apply
for and receive gifts, grants, bequests, endowments and donations
of moneys from public and private sources for the purposes of
implementation of recreation management plans developed pursuant
to section 3 of this 2003 Act.
  (4) The department and the division shall deposit all moneys
received under this section by gift, grant, bequest, endowment
and donation into the Recreational Waterway Account. + }
  SECTION 10. ORS 274.404 is amended to read:
  274.404. (1)   { - On or before July 1, 1996, - }  The State
Land Board shall adopt by rule a procedure that is consistent
with ORS 274.400 to 274.412 by which the board and the Division
of State Lands shall make a final administrative determination as
to whether a waterway or part of a waterway is navigable, and if
so, the extent of the interest claimed by the State of Oregon in
the navigable portion of the waterway.
  (2) The rules adopted under subsection (1) of this section
shall incorporate the following procedures that the board and the
division shall follow:
   { +  (a) The board shall direct the division to notify
affected property owners adjacent to a waterway or part of a
waterway for which the board may direct the division to conduct a
navigability study. The notification shall contain, at a minimum,
an indication that the waterway is potentially the subject of a
navigability study, a method for responding to the board and a
specification that a majority of affected property owners may
request by mail within 75 days after notification that a
recreation management plan be developed under section 3 of this
2003 Act. + }
    { - (a) - }   { + (b)  + }The board may direct the division
to make a determination of navigability if there is sufficient
economic justification or if there is a broad and substantial
public interest. If the board so directs, the division shall
conduct a study to make the determination. { +  If a majority of
affected property owners has requested that a recreation
management plan be developed, the board may request that the
State Parks and Recreation Department develop a recreation
management plan pursuant to section 3 of this 2003 Act. + }
    { - (b) - }   { + (c) + } The division shall provide prompt
public notice to affected property owners that the division is
beginning the study.
    { - (c) - }   { + (d) + } Upon completion of a study directed
under paragraph
  { - (a) - }   { + (b) + } of this subsection, the division
shall prepare and submit to the board a draft report setting
forth the division's findings and conclusions as to whether the
waterway or part of the waterway under study is navigable and, if
so, the extent of the State of Oregon's interest in the waterway
or part of the waterway.
    { - (d) - }   { + (e) + } The division shall provide
appropriate prior public notice to affected property owners and
other interested parties concerning the draft report. The notice
shall provide an opportunity for a public hearing in the area of
the affected waterway and an opportunity for the public to submit
written comments on the draft report and to submit testimony or
other evidence concerning the navigability of the affected
waterway or part of the waterway or the State of Oregon's
interest in the waterway or part of the waterway.
    { - (e) - }   { + (f) + } Following the public hearing, the
board may adopt the draft report submitted by the division if
substantial evidence in the record supports the report's findings
and conclusions, or the board may refer the report to the
division for further action as determined by the board.
   { +  (3) The board shall direct the division to suspend the
initiation or development of a navigability study if the board
determines, in consultation with the State Parks and Recreation
Department, that a recreation management plan is being developed
or implemented for the waterway that is the subject of the
study. + }
  SECTION 11. ORS 274.404, as amended by section 10 of this 2003
Act, is amended to read:
  274.404. (1) The State Land Board shall adopt by rule a
procedure that is consistent with ORS 274.400 to 274.412 by which
the board and the Division of State Lands shall make a final
administrative determination as to whether a waterway or part of
a waterway is navigable, and if so, the extent of the interest
claimed by the State of Oregon in the navigable portion of the
waterway.
  (2) The rules adopted under subsection (1) of this section
shall incorporate the following procedures that the board and the
division shall follow:
    { - (a) The board shall direct the division to notify
affected property owners adjacent to a waterway or part of a
waterway for which the board may direct the division to conduct a
navigability study. The notification shall contain, at a minimum,
an indication that the waterway is potentially the subject of a
navigability study, a method for responding to the board and a
specification that a majority of affected property owners may
request by mail within 75 days after notification that a
recreation management plan be developed under section 3 of this
2003 Act. - }
    { - (b) - }   { + (a) + } The board may direct the division
to make a determination of navigability if there is sufficient
economic justification or if there is a broad and substantial
public interest. If the board so directs, the division shall
conduct a study to make the determination.   { - If a majority of
affected property owners has requested that a recreation
management plan be developed, the board may request that the
State Parks and Recreation Department develop a recreation
management plan pursuant to section 3 of this 2003 Act. - }
    { - (c) - }   { + (b) + } The division shall provide prompt
public notice to affected property owners that the division is
beginning the study.
    { - (d) - }   { + (c) + } Upon completion of a study directed
under paragraph
  { - (b) - }   { + (a) + } of this subsection, the division
shall prepare and submit to the board a draft report setting
forth the division's findings and conclusions as to whether the
waterway or part of the waterway under study is navigable and, if
so, the extent of the State of Oregon's interest in the waterway
or part of the waterway.
    { - (e) - }   { + (d) + } The division shall provide
appropriate prior public notice to affected property owners and
other interested parties concerning the draft report. The notice
shall provide an opportunity for a public hearing in the area of
the affected waterway and an opportunity for the public to submit
written comments on the draft report and to submit testimony or
other evidence concerning the navigability of the affected
waterway or part of the waterway or the State of Oregon's
interest in the waterway or part of the waterway.
    { - (f) - }   { + (e) + } Following the public hearing, the
board may adopt the draft report submitted by the division if
substantial evidence in the record supports the report's findings
and conclusions, or the board may refer the report to the
division for further action as determined by the board.
    { - (3) The board shall direct the division to suspend the
initiation or development of a navigability study if the board
determines, in consultation with the State Parks and Recreation
Department, that a recreation management plan is being developed
or implemented for the waterway that is the subject of the
study. - }
  SECTION 12. ORS 274.406 is amended to read:
  274.406. (1) Upon the adoption of a report by the State Land
Board under ORS 274.404 (2)  { - (e) - } , the board shall
declare the nature and extent of the state's claim to any
interest that remains or is vested in the State of Oregon with
respect to any land or waterway described in the report.
  (2) Except as it may be modified upon review pursuant to ORS
274.412, a declaration made by the board pursuant to subsection
(1) of this section shall be binding upon the State of Oregon
with respect to the interest, if any, of the State of Oregon in
any land or waterway described in the declaration.
  (3) Nothing contained in this section is intended to affect the
ability of a court of competent jurisdiction to make a
determination with respect to a private claim to or interest in
real property.
  SECTION 13.  { + The amendments to ORS 274.404 by section 11 of
this 2003 Act become operative on January 2, 2008. + }
  SECTION 14.  { + (1) Sections 1 to 9 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 9 of this 2003 Act, and all moneys that would have been
deposited in the Recreational Waterway Account had sections 1 to
9 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 15.  { + 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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