August 2004. The public’s right to paddle on
For the past 12 years the
Appeals by environmental groups have led the courts to determine: 1) the state can't cheaply sell off the streambeds because that would violate the gift clause of the state constitution; 2) streambeds are a special type of real estate that the state, as trustee, has an obligation to protect; and 3) the state must act cautiously and fairly in determining which watercourses it has authority over.
Who owns our riverbeds?
This issue surfaced in 1985 when the state challenged a sand and gravel operator as to the ownership of the streambed he was mining. The judge reviewing the case was unable to determine ownership of the streambed because the state hasn't decided which streams were navigable at statehood. When territories enter the
To spearhead the process of determining which streams are under our state's control, the legislature established a 5-member commission in 1992 called the Arizona Navigable Streams Adjudication Commission ("ANSAC"). Title to the bed of navigable streams or lakes passed to the state in 1912 upon admission into the
There are some difficult issues that ANSAC is wrestling with. What defines a "navigable watercourse?" The Appellate Court in 2001 said that the legislature had created an impossibly strict definition contrary to the accepted federal definition used as far back as 1846. Currently, the legislature has declared in statute that it means "a watercourse that was in existence on February 14, 1912 and at that time was used or was susceptible to being used, in its ordinary and natural condition, as a highway for commerce, over which trade and travel were or could have been conducted in the customary modes of trade and travel on water." A federal definition states that rivers navigable in fact are to be regarded as public navigable rivers in law. Despite the federal definition, ANSAC still appears to dismiss actual boating as a sign of navigability.
ANSAC has already decided that many of the 39,000 "small watercourses" in the state are not navigable. This includes such boatable watercourses as Tonto Creek,
ANSAC has now begun review of navigability on the Major Watercourses (see list below).
4. Burro Creek
The commissioners still need to deal with the uncomfortable fact that actual boating has occurred on these streams. The push for river and streambed conservation poses a strong challenge to the economically powerful sand and gravel mining and developers of the streambeds.
The commission cannot ignore testimony or evidence that demonstrates actual navigation (that is, boating or even tubing) on
Anyone can comment
Your letter or testimony can help the cause of
Can you relay old family stories, letters, or pictures about boating at the time of early statehood? Send in a copy. It may save a river and stream bank from becoming a gravel pit or commercial development.
You can send your comments about a specific watercourse to the commission at: ANSAC; 1700 W Washington; Room 304;
You do not need to be an
If you prefer, you can use this simple template to submit comments. Use one template for each stream.
1. Stream name:
2. Locations where the trip launched and took out (eg, Beasley Flat to Childs):
3. Year/month or date of trip:
4. Duration of the trip (daytrip, 3 days, etc):
5. Number and types of boats:
6. Number of persons on the trip:
7. Approximate flow level, if you remember (eg, 600 cfs):
8. Other comments about the trip:
For more information, visit the ANSAC website at http://www.azstreambeds.com . It contains the schedule of upcoming hearings, background data concerning the commission, Q&A, a fascinating historical discussion of small watercourses in
If you value your ability to boat on
Give your opinion, and submit your experience for the official record. Review the list of "Major Watercourses" and let them know which ones you have, or could, boat on. Any trip reports you kept would be helpful too. This is important in order to defend your future right to boat on, and to preserve the shape of, our streams. You may find it noteworthy that the Commission is about to allege that the
If you have any questions about this process, please contact Tim Flood, 602-265-4325; firstname.lastname@example.org
River Runners For Wilderness thanks Tim Flood for alerting boaters to this critical need.