73rd OREGON LEGISLATIVE ASSEMBLY--2005 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 2368
Senate Bill 1028
Sponsored by COMMITTEE ON RULES (at the request of Senators Ted
Ferrioli and Kate Brown)
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 public right to use certain waterways up to line of
ordinary high water for certain recreational purposes. Specifies
limit of public right.
Directs State Land Board to adopt statewide management plan
governing recreational use of certain waterways. Allows
modification of plan.
Directs State Land Board to appoint Class 1 Waterways Advisory
Committee. Specifies duties.
Establishes Class 1 Waterways Subaccount within Boating Safety,
Law Enforcement and Facility Account. Continuously appropriates
moneys in subaccount to State Marine Board for purposes of
regulating waterways.
Directs State Marine Board to establish program for regulation
of recreational use of waterways of state. Directs board to issue
recreational use registrations. Directs use of registration fees.
Specifies that portion of fees be allocated to counties for law
enforcement.
Punishes violation of statewide management plan and violation
of public right to use certain waterways by maximum fine of $360.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to recreational use of waterways; creating new
provisions; amending ORS 105.672, 390.131, 830.110, 830.140 and
830.150; appropriating money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) The State Land Board by rule shall adopt
and administer a statewide management plan to govern the
recreational use of Class 1 waterways under section 5 of this
2005 Act. The statewide management plan shall include:
(a) Provisions specifying the time, manner, type and extent of
the recreational uses allowed on Class 1 waterways located
throughout the state; and
(b) A method for modifying the time, manner, type and extent of
recreational uses allowed on a particular Class 1 waterway.
(2) The board shall, from time to time, review the statewide
management plan for possible modification.
(3) The board may, pursuant to a memorandum of understanding,
delegate the authority to develop and administer the statewide
management plan to another public body, as defined in ORS
174.109. The memorandum may include provisions for the payment
of expenses incurred in developing and administering the
statewide management plan from moneys received by the board from
the Class 1 Waterways Subaccount established pursuant to section
10 of this 2005 Act. + }
SECTION 2. { + (1) The State Land Board shall appoint a Class
1 Waterways Advisory Committee to advise and aid the State Land
Board in the administration of section 5 of this 2005 Act.
(2) The advisory committee shall be composed of nine members
appointed by the State Land Board from the following interests:
(a) Three members who represent riparian landowners.
(b) Two members who represent recreational interest groups.
(c) One member who represents federally recognized Indian
tribes.
(d) One member who represents the general public.
(e) One member who represents the State Parks and Recreation
Department.
(f) One member who represents the State Marine Board.
(3) The State Land Board may determine the terms of the members
of the advisory committee.
(4) The advisory committee shall have a primary responsibility
to:
(a) Seek out and serve as a resource for information on:
(A) The recreational use of Class 1 waterways;
(B) Any conflict between landowners and recreational users; and
(C) Proposed modifications to the recreational uses allowed;
and
(b) Propose to the State Land Board suggestions for adding to,
modifying or excluding the time, manner, type and extent of the
recreational use of Class 1 waterways.
(5) Members of the advisory committee are not entitled to
compensation, but at the discretion of the State Land Board may
be reimbursed from funds available to the board for actual and
necessary travel and other expenses incurred in the performance
of their official duties in the manner and amount provided in ORS
292.495. + }
SECTION 3. { + Sections 4 to 10 of this 2005 Act are added to
and made a part of ORS chapter 830. + }
SECTION 4. { + As used in sections 4 to 10 of this 2005 Act:
(1) 'Bank' means the portion of a waterway that lies between
the line of ordinary high water and the waterline of a waterway.
(2) 'Barrier' means an obstruction located in a waterway that
totally or effectively blocks the use of the waterway.
(3) 'Class 1 waterway' means any segment of a floatable,
natural, tidal or nontidal waterway and its banks.
(4) 'Class 2 waterway' means any segment of:
(a) A waterway that is not a Class 1 waterway;
(b) An ephemeral waterway; or
(c) The Metolius River.
(5) 'Emergency use' means a use of property:
(a) To obtain immediate and necessary medical attention; or
(b) Necessitated by damage to a boat used by a person making
recreational use of a waterway, if the damage is of a nature so
as to make continued use of the boat unsafe or impracticable, for
purposes of temporarily engaging in boat repair or for egress
from the waterway.
(6) 'Ephemeral waterway' means a waterway that:
(a) Flows only during and immediately after periods of heavy
precipitation;
(b) Receives little or no ground water to sustain its flow; and
(c) Has a bed that is above the water table.
(7) 'Floatable' means having the capacity, in terms of length,
width and depth, necessary to enable a boat to make successful
progress through a waterway at any time, regardless of the
presence of shallow rapids, exposed cobble or other objects that
may impede passage.
(8) 'Line of ordinary high water' means the line on the bank of
a waterway to which high water ordinarily rises.
(9) 'Portage' means to move a boat overland to avoid a barrier
to navigating a waterway.
(10) 'Recreational use' means participation in water-dependent
activities and incidental uses connected with those
activities. + }
SECTION 5. { + (1) Except as provided in this section, a
person may make recreational use of any waterway.
(2) A person may not use a Class 2 waterway for a recreational
use unless the person obtains the express permission of the
riparian landowner. However, a person using a Class 2 waterway
that is located on public lands may act as if the person has
express permission of the riparian landowner if the person
complies with all applicable laws, rules and policies established
by any public body, as defined in ORS 174.109, or federal agency
with management authority over the Class 2 waterway.
(3) An owner or operator of a hydroelectric power generating
facility may restrict the use of a waterway in and around the
facility and related structures in a manner that the owner or
operator determines necessary to protect against injury or loss
of life.
(4) A person may not use a Class 1 waterway for a recreational
use if the use has been limited, restricted or excluded by:
(a) A statewide management plan adopted by the State Land Board
pursuant to section 1 of this 2005 Act; or
(b) State law, federal law or rules of a state or federal
agency.
(5) Unless allowed pursuant to the statewide management plan
adopted pursuant to section 1 of this 2005 Act, a person may not,
without obtaining the express permission of the riparian
landowner, use a Class 1 waterway for the following purposes:
(a) Building open fires;
(b) Disposing of human waste;
(c) Overnight camping;
(d) Hunting or discharging weapons, except for the purpose of
hunting waterfowl when specifically authorized by the State
Department of Fish and Wildlife; or
(e) Placing or creating any permanent or seasonal structure,
including a duck blind or boat moorage.
(6) A person may not use a waterway for a recreational use that
involves a boat unless the person:
(a) Holds a valid certificate of number for the boat, as
evidenced by the display of an identifying number on the boat
with current validation stickers issued under ORS 830.795;
(b) Holds a valid nonmotorized boat certificate of number for
the boat, as evidenced by the display of an identifying number on
the boat along with a current validation sticker or tag issued
under section 12 of this 2005 Act; or
(c) Holds a valid, effective recreational use registration
issued pursuant to section 9 of this 2005 Act. + }
SECTION 6. { + (1) A person making recreational use of a
waterway pursuant to section 5 of this 2005 Act may travel on
property adjacent to the waterway that is above the line of
ordinary high water for emergency use or to portage if the person
takes:
(a) The most direct and least intrusive path;
(b) Reasonable steps to avoid damaging the property; and
(c) Reasonable steps to repair any damage the person may have
caused to the property.
(2) It is a defense to a charge of criminal trespass under ORS
164.245, 164.255 or 164.265 that a person making recreational use
of a Class 1 waterway entered property adjacent to a waterway for
emergency use or to portage and complied with the requirements of
this section.
(3) A person using property adjacent to a waterway for
emergency use or to portage is liable for actual damage caused to
the property. + }
SECTION 7. { + (1) For purposes of this section, 'prescriptive
easement' means the right of a person to use the property of
another person that is acquired by open, exclusive, notorious,
hostile, adverse, continuous and uninterrupted use of the
property for at least five years.
(2) A person may not acquire a prescriptive easement to public
or private land:
(a) Through the recreational use of a waterway, including the
land lying below the line of ordinary high water and portage
routes; or
(b) By entering or crossing the property of a landowner to
access a waterway.
(3) The ability to make recreational use of a waterway pursuant
to section 5 of this 2005 Act does not grant any easement or
right to enter or cross the property of a landowner in order to
make recreational use of the waterway unless:
(a) The easement or right existed prior to the effective date
of this 2005 Act; or
(b) The reason for the entry onto or the crossing of the
property is for emergency use or to portage. + }
SECTION 8. { + A riparian landowner affected by the authority
of a person to make recreational use of a Class 1 waterway
pursuant to section 5 of this 2005 Act is not liable:
(1) For damage to natural resources, including habitat, fish,
wildlife and water quality, caused by persons making recreational
use of a waterway or using property for emergency use or to
portage; or
(2) In contract or tort for any personal injury, death or
property damage pursuant to ORS 105.682. + }
SECTION 9. { + (1) The State Marine Board shall, consistent
with the statewide management plan adopted pursuant to section 1
of this 2005 Act, establish a program for the regulation of the
recreational use of the Class 1 waterways and Class 2 waterways
of the state. The program shall include provisions for:
(a) The issuance of transferable recreational use registrations
that allow holders to engage in the recreational use of Class 1
waterways with nonmotorized boats pursuant to section 5 of this
2005 Act.
(b) The designation of agents of the board to issue
recreational use registrations.
(c) The assessment of an annual fee in the amount of $20 for a
recreational use registration.
(2) Fees collected by the board or by its designated agents for
recreational use registrations shall be paid into the Boating
Safety, Law Enforcement and Facility Account, except that the
board may authorize a designated agent other than a board
employee to charge a service fee of $2.50, in addition to the
annual recreational use registration fee, for the issuance
service performed by the agent.
(3) As part of the program established under this section, the
board may:
(a) Develop and disseminate information and educational
materials regarding the recreational use of specific Class 1
waterways and portage routes, public boat launches and
recreational facilities located on or near the waterways.
(b) Develop and maintain recreational facilities on or near
Class 1 waterways.
(c) Provide grants for the acquisition of an interest in land
for the purpose of developing recreational facilities on or near
Class 1 waterways.
(d) Specify the method of display of a recreational use
registration. + } { + + }
SECTION 10. { + (1) The Class 1 Waterways Subaccount is
established within the Boating Safety, Law Enforcement and
Facility Account. The subaccount shall consist of moneys
deposited into the subaccount by the State Marine Board from fees
collected pursuant to sections 9 and 12 of this 2005 Act. The
moneys in the subaccount are continuously appropriated to the
board for the purposes specified in this section.
(2) The board shall use the moneys in the subaccount for:
(a) Operating the recreational use registration program
established pursuant to section 9 of this 2005 Act;
(b) Providing law enforcement services related to Class 1
waterways;
(c) Providing information and education regarding recreational
use of Class 1 waterways;
(d) Developing and operating recreational facilities on or near
Class 1 waterways;
(e) Improving and maintaining access to Class 1 waterways for
recreational use;
(f) Developing and administering the statewide management plan
adopted pursuant to section 1 of this 2005 Act; and
(g) Any other purpose that the board determines is appropriate
for the maintenance, enhancement or protection of the natural and
scenic resources of Class 1 waterways.
(3) The board shall determine the amount of moneys required for
law enforcement services on Class 1 waterways in each county.
Funds available in the subaccount shall be apportioned according
to the amounts required and shall be distributed under contracts
entered into with the Department of State Police or a county
sheriff. A contract with a county sheriff shall be entered into
only with the approval of the governing body of the county. The
board shall determine the intervals at which the moneys shall be
distributed. + }
SECTION 11. { + Section 12 of this 2005 Act is added to and
made a part of ORS 830.700 to 830.870. + }
SECTION 12. { + (1) The owner of a boat that is not a
motorboat or a sailboat of 12 feet or more in length may register
the boat with the State Marine Board and obtain a nonmotorized
boat certificate of number and identifying number without
securing a certificate of title.
(2) Upon the owner's submission of an application in a form
approved by the board, the board shall issue to the owner a
nonmotorized boat certificate of number and identifying number.
The certificate shall state the identifying number awarded to the
boat, the name and address of the owner, a description of the
boat, the issue date of the certificate and the expiration date
of the certificate.
(3) Along with the nonmotorized boat certificate of number, the
board shall issue a validation sticker or tag. The owner shall
affix the sticker or tag to the boat so that the sticker or tag
is visible for inspection. The identifying number shall be placed
on the boat in the manner provided in ORS 830.780.
(4) The biennial fee for a nonmotorized boat certificate of
number is $2 per foot or portion of a foot.
(5) A nonmotorized boat certificate of number expires on
December 31 of the year indicated on the certificate. + }
SECTION 13. ORS 105.672 is amended to read:
105.672. As used in ORS 105.672 to 105.696:
(1) 'Charge' means the admission price or fee asked by any
owner in return for permission to enter or go upon the owner's
land.
(2) 'Harvest' has that meaning given in ORS 164.813.
(3) 'Land' includes all real property, whether publicly or
privately owned.
(4) 'Owner' means the possessor of any interest in any land,
including but not limited to possession of a fee title. ' Owner'
includes a tenant, lessee, occupant or other person in possession
of the land.
(5) 'Recreational purposes' includes, but is not limited to,
outdoor activities such as hunting, fishing, swimming, boating,
camping, picnicking, hiking, nature study, outdoor educational
activities, waterskiing, winter sports, { + recreational use of
Class 1 waterways and Class 2 waterways pursuant to section 5 of
this 2005 Act, + } viewing or enjoying historical,
archaeological, scenic or scientific sites or volunteering for
any public purpose project.
(6) 'Special forest products' has that meaning given in ORS
164.813.
(7) 'Woodcutting' means the cutting or removal of wood from
land by an individual who has obtained permission from the owner
of the land to cut or remove wood.
SECTION 14. ORS 390.131 is amended to read:
390.131. { + (1) + } The State Parks and Recreation Director
is the executive head of the State Parks and Recreation
Department and shall:
{ - (1) - } { + (a) + } Be responsible to the State Parks
and Recreation Commission for administration and enforcement of
the duties, functions and powers imposed by law upon the
commission and the department.
{ - (2) - } { + (b) + } Appoint, supervise and control all
commission employees and, under policy direction of the
commission, be responsible for all of the commission's functions
and activities.
{ - (3) - } { + (c) + } Establish such administrative
divisions as are necessary to carry out properly the commission's
functions and activities.
{ - (4) - } { + (d) + } Contract with the Department of
Transportation for the performance of such administrative
services as the director considers appropriate. { +
(2) The director may enter into contracts or agreements with
the State Land Board to develop and administer a statewide
management plan described in section 1 of this 2005 Act. + }
SECTION 15. ORS 830.110 is amended to read:
830.110. In addition to the powers and duties otherwise
provided in this chapter, the State Marine Board shall have the
power and duty to:
(1) Make all rules necessary to carry out the provisions of
this chapter. The rules shall be made in accordance with ORS
chapter 183.
(2) Devise a system of identifying numbers for boats, floating
homes and boathouses. If an agency of the federal government has
an overall system of identification numbering for boats within
the United States, the system devised by the board shall conform
with the federal system.
(3) Cooperate with state and federal agencies to promote
uniformity of the laws relating to boating and their enforcement.
(4) Make contracts { + and agreements + } necessary to carry
out the provisions of ORS { - 830.060 to 830.145, 830.700 to
830.715, 830.725, 830.730, 830.770, 830.780, 830.785, 830.795 to
830.820 and 830.830 to 830.870 - } { + chapter 830 or to
develop and administer a statewide management plan described in
section 1 of this 2005 Act + }.
(5) Advise and assist county sheriffs and other peace officers
in the enforcement of laws relating to boating.
(6) Study, plan and recommend the development of boating
facilities throughout the state which will promote the safety and
pleasure of the public through boating.
(7) Publicize the advantage of safe boating.
(8) Accept gifts and grants of property and money to be used to
further the purposes of this chapter.
(9) Exempt from any provisions of this chapter any class of
boats if it determines that the safety of persons and property
will not be materially promoted by the applicability of those
provisions to the class of boats, but the board shall not exempt
from numbering any class of boats unless it determines that the
numbering will not materially aid in their identification and
unless the secretary of the department of the federal government
under which the United States Coast Guard is operating has
exempted from numbering the same boats or classes of boats.
(10) Appoint and require the bonding of agents to issue a
temporary permit to operate a boat. The agents may charge, in
addition to the prescribed fees, $1 per transaction for their
services in issuing the temporary permit.
(11) Publish and distribute to the interested public the
boating laws of this state and resumes or explanations of those
laws.
(12) Publish and distribute forms for any application required
under this chapter and require the use of such forms.
(13) Make rules for the uniform navigational marking of the
waters of this state. Such rules shall not conflict with markings
prescribed by the United States Coast Guard. No political
subdivision or person shall mark the waters of this state in any
manner in conflict with the markings prescribed by the board.
(14) Make rules regarding marine toilets and their use
consistent with the prevention and control of pollution of the
waters of this state and not in conflict with the rules of the
Department of Human Services or the Environmental Quality
Commission.
(15) Institute proceedings to enjoin unlawful obstructions
injuring free navigation on the waters of this state.
(16) Make rules regulating water ski course markers, ski jumps
and other special use devices placed in the waters of this state.
Such rules may regulate the installation and use of the devices
and may require a permit.
(17) Adopt rules necessary to carry out and enforce the
provisions of ORS 830.950 and 830.955. The rules shall include
but need not be limited to:
(a) The kinds of protective covering or physical barriers that
are acceptable to be used between a submersible polystyrene
device and the water.
(b) Guidelines for the use of submersible polystyrene devices
for the repair or maintenance of existing docks or floats.
(18) Adopt rules providing for establishment of a Safe Boating
Education Course to be made available to courts and law
enforcement agencies within this state for use as a sentencing
option for those individuals convicted of boating offenses. The
board shall specify the content of the Safe Boating Education
Course and shall prescribe procedures for making the course
available to local courts and law enforcement agencies, including
procedures for promptly notifying such courts whether individuals
required to enroll in the course have taken and successfully
passed the course. Such rules may provide for administration of
the course through nonprofit organizations, such as the United
States Coast Guard Auxiliary, United States Power Squadrons or
similar groups.
(19) For purposes of ORS 830.175, 830.180, 830.185 and 830.195,
in cooperation with the State Aviation Board, regulate boats that
are seaplanes as provided in ORS 830.605 and 835.200.
SECTION 16. ORS 830.140 is amended to read:
830.140. (1) On or before the 10th day of each month, the State
Marine Board shall pay into the State Treasury { - , except as
provided in ORS 830.926, - } all moneys received by the board
during the preceding calendar month. The State Treasurer shall
credit the moneys to the Boating Safety, Law Enforcement and
Facility Account, which account hereby is created, separate and
distinct from the General Fund. The moneys in the account hereby
are continuously appropriated to the board for the purpose of
paying the expense of administering and enforcing the provisions
of this chapter. The board shall keep a record of all moneys
received and expended.
{ + (2) The board shall determine the amount of moneys
deposited in the account that is from fees collected pursuant to
ORS 830.790 and 830.850 and deposit that amount into the
Abandoned Boat Removal and Cleanup Subaccount.
(3) The board shall determine the amount of moneys deposited in
the account that is from fees collected for nonmotorized boat
certificates of number pursuant to section 12 of this 2005 Act
and fees collected for recreational use registrations pursuant to
section 9 of this 2005 Act and deposit that amount into the Class
1 Waterways Subaccount. + }
{ - (2) - } { + (4) After depositing the amounts described
in subsections (2) and (3) of this section and + } after paying
the necessary expenses incurred by the board in administering
this chapter, the funds available in the account shall be
distributed, in the amounts required, for the purpose of
enforcing the provisions of this chapter and the regulations
adopted pursuant thereto. The board shall determine the amount
required for enforcement in each county, considering the survey
conducted under ORS 830.115. The funds available shall be
apportioned according to the amounts required and distributed,
for enforcement in each county where there is a need, under a
contract entered into with a city, with the Department of State
Police or with the sheriff of the county. A contract with a city
or a sheriff shall be entered into only with the approval of the
governing body of the city or county. The board shall determine
the intervals at which the moneys shall be distributed.
{ - (3) - } { + (5) + } The governing body of any county
having within its boundaries a city providing recreational
boating facilities including launching ramps, may contract with
the city for the purpose of enforcing the provisions of this
chapter and the rules and regulations made pursuant thereto.
{ - (4) - } { + (6) + } If the city enters into a contract
with the board or with a county, the county is relieved of its
enforcement responsibilities within the city as agreed to by the
county and the city or by the board and the city.
SECTION 17. ORS 830.150 is amended to read:
830.150. (1) Amounts remaining in the Boating Safety, Law
Enforcement and Facility Account in excess of funds obligated
under ORS 830.140 { - (2) - } shall be distributed, upon
application, to the state, a city, county, water improvement
district, park and recreation district or a port. Distribution
shall be made on the basis of need for a facility as that need
appears to the State Marine Board.
(2)(a) In distributing funds under subsection (1) of this
section, the board shall give first priority to applications for
facilities designed to control water pollution or otherwise
enhance water quality, including but not limited to pumping
stations for recreational boat holding tanks, and to those other
facilities for which there appears the greatest public need.
(b) Subject to paragraph (a) of this subsection, the board may
distribute funds for:
(A) Construction and maintenance of boating facilities, for the
acquisition of property therefor, and other related facilities
such as parking, potable water, sanitation and other facilities
for the convenience of the public using the boating facilities;
and
(B) Removal of derelict structures floating upon and abandoned
dock or boat mooring facilities situated in, upon or over the
waters of this state if such structures or facilities constitute
a hazard to boating upon such waters.
(3) Prior to making any distribution of funds under this
section, the board shall hold a public hearing in the area where
a facility is to be constructed or land acquired if in the
judgment of the board, use of the facility would stimulate
significant change in the character of the recreational use of
the waters.
(4) The board shall make no distribution of funds under this
section for construction or acquisition if in the judgment of the
board the applicant has not included in the construction or
acquisition plans adequate provision for protecting the quality
of the waters affected by the plans. The board's denial of any
application under this subsection must include specific notice to
the applicant of the point or points of the plan that are found
by the board to be inadequate.
SECTION 18. { + (1) A person who violates section 5 of this
2005 Act or any provision of the statewide management plan
adopted pursuant to section 1 of this 2005 Act commits a Class B
violation.
(2) Fines imposed as a result of conviction of a violation of
section 5 of this 2005 Act shall be deposited into the State
Treasury for credit to the Class 1 Waterways Subaccount
established pursuant to section 10 of this 2005 Act. + }
SECTION 19. { + Nothing in section 5, 6 or 7 of this 2005 Act
affects the title to or ownership of:
(1) The surface water contained within a waterway;
(2) The land lying below the line of ordinary high water of a
waterway; or
(3) The established portage routes within the state. + }
SECTION 20. { + Nothing in section 5, 6 or 7 of this 2005 Act
affects:
(1) The right of a landowner to engage in a farming practice,
as defined in ORS 30.930.
(2) Any treaty or right of any federally recognized Indian
tribe.
(3) Land held in trust by the United States for Indian tribes
or individual members of Indian tribes.
(4) The recreational use of the surface waters of lakes, ponds
and other confined water bodies.
(5) The rights or responsibilities established under a
management plan for a Class 1 waterway adopted pursuant to the
federal Wild and Scenic Rivers Act (P.L. 90-542). + }
SECTION 21. { + (1) Sections 5, 6 and 7 of this 2005 Act
become operative January 1, 2006.
(2) Notwithstanding subsection (1) of this section, the State
Land Board, State Marine Board and State Marine Director may take
any administrative action necessary prior to January 1, 2006, in
order to carry out the purposes of this 2005 Act. + }
SECTION 22. { + This 2005 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2005 Act takes effect on
its passage. + }
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