This text of Oregon § 274.404 (Administrative determination of navigable waterway; rules; procedure) is published on Counsel Stack Legal Research, covering Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
(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 Department 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 department shall follow:
(a)The board may direct the department 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 department shall conduct a study to
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(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 Department 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 department shall follow:
(a) The board may direct the department 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 department shall conduct a study to make the determination.
(b) The department shall provide prompt public notice to affected property owners that the department is beginning the study.
(c) Upon completion of a study directed under paragraph (a) of this subsection, the department shall prepare and submit to the board a draft report setting forth the department’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) The department 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) Following the public hearing, the board may adopt the draft report submitted by the department if substantial evidence in the record supports the report’s findings and conclusions, or the board may refer the report to the department for further action as determined by the board.
(3)(a) Notwithstanding common law principles of accretion and avulsion, the department may find in a draft report under this section that the state’s interest in a waterway should extend to the current submerged and submersible lands within the waterway.
(b) At any point after the beginning of the study and before the board adopts a draft report under subsection (2) of this section, the department may negotiate an exchange of deeds with any property owner that would be affected by a finding that the state’s interest in the waterway should extend to the current submerged and submersible lands within the waterway. In any negotiation with an affected property owner, the department shall prioritize the goal of state ownership of the current waterway and need not seek an equal exchange of property values.
(c) Notwithstanding ORS 273.780, the department may convey the mineral and geothermal resource rights of property exchanged by the department pursuant to this subsection.
(d) If the department is unable to reach an agreement with any affected property owner described in this subsection, the department shall determine the extent of the state’s interest in the applicable portion of the waterway in accordance with common law principles of accretion and avulsion.
(e) If a report adopted by the board includes a finding that the state’s interest in the waterway extends to the current submerged and submersible lands within the waterway, the board may find in a declaration under ORS 274.406 that the boundary of the waterway should remain ambulatory and change with future accretion.
(f) This subsection does not apply to a meandered lake.
(g) As used in this subsection:
(A) “Geothermal resource” has the meaning given that term in ORS 522.005.
(B) “Meandered lake” has the meaning given that term in ORS 274.425.
(C) “Mineral” has the meaning given that term in ORS 273.775.