Arizona Rivers Need Paddler Comments

August 2004. The public’s right to paddle on Arizona's streams is now under review by the Arizona Navigable Streams Adjudication Commission ("ANSAC").

This Arizona state commission is now deciding what the future of recreational boating will be on Arizona’s rivers. Hanging in the balance are Arizona streambeds, and the very concept of a river corridor and boatable channel. 


For the past 12 years the Arizona legislature and state government have attempted to disclaim ownership of our state's streams, including their streambeds.  Two previous attempts by the legislature resulted in lawsuits against the state to stop the giveaway. 


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 Union they become the owners of the beds of navigable waters.  This is an interesting holdover from old English law, and probably even earlier law.  Most civilized societies recognize that some natural resources can't, or shouldn't, be privatized.  Rather, the courts appear to be saying that streams, at least the navigable ones, should be retained for use or enjoyment by the greater population. A legal interpretation with a thousand-year history supports Arizona boaters and may allow Arizona citizens to retain a valuable public resource -- our rivers.


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 Union.  The commission's current charge is to determine navigability on all watercourses, except for the Colorado River. The Colorado, from the Utah border in the north to the border with Mexico in the south, was the only river in the state identified in 1912 is navigable. 


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 Hearings


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, Oak Creek, and Rye Creek.  Presumably, the state will say it has no claim to these streams.


ANSAC has now begun review of navigability on the Major Watercourses (see list below).


MAJOR WATERCOURSES


1. Agua Fria River

2. Big Sandy River

3. Bill Williams River

4. Burro Creek

5. Blue River

6. Gila River

7. Hassayampa River

8. Little Colorado River

9. Lower Salt River

10. Puerco River

11. San Francisco River

12. San Pedro River

13. Santa Cruz River

14. Santa Maria River

15. Upper Salt River

16. Verde River

17. Virgin River


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 Arizona Center for Law in the Public Interest continues to advocate for a broader perspective.  Here is where boaters can remind the commission of the importance of preserving various non consumptive uses of waterways.


The commission cannot ignore testimony or evidence that demonstrates actual navigation (that is, boating or even tubing) on Arizona streams, especially on the major watercourses.  


Anyone can comment


Your letter or testimony can help the cause of Arizona river conservation in a powerful way.  Do you own or rent a boat that has recently been used on Arizona's waterways?  Tell them about your watercraft.  Have you recently rafted on Arizona's rivers?  When did you take the trip?  How many people accompanied you?  Let them know.  Was the flow high or low water? When our streams flow, do you plan to navigate on our rivers?  Which watercourses have you inner-tubed (that counts too!)?  Recreation is an acceptable use of navigable waterways.


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; Phoenix, AZ 85007.

You do not need to be an Arizona resident to comment.


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 Cochise County, newsletters, and other interesting information.


If you value your ability to boat on Arizona's flowing streams, it is important that you send a note or letter to the Arizona Navigable Streams Adjudication Commission.


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 Lower Salt River is "non navigable."  The repercussion here is that the not-so-friendly sand and gravel operators and other developers of the streambeds will gain sole management.  Our streams need defenders; they need you to submit comments! Please send in your comments now while this is fresh on your mind. 


If you have any questions about this process, please contact Tim Flood, 602-265-4325; tjflood@att.net  


River Runners For Wilderness thanks Tim Flood for alerting boaters to this critical need.