The Oregon Filled Lands Advisory Group (FLAG) recently presented draft recommendations for changing how the state asserts ownership of submerged and submersible land. Before 1963, there were no regulations on filling of waterfront lands. Many underwater and low lying areas became what we now call historically filled lands were filled with dredged materials leftover from creation and maintenance of navigation channels, (ever notice that Swan Island is no longer an island?). Generally, the state owns the submerged and submersible lands along navigable rivers but has not consistently tracked which properties have been filled to the point of becoming useable uplands.
Because of this, decades go by and new waterfront property owners assume they own the uplands, but that is not true for historically filled lands where the state never relinquished title. Title insurance companies exclude from standard title insurance policies for state claims of ownership of submerged and submersible lands, and when the Oregon Department of State Lands (DSL) asserts ownership, things can get complicated. The State Land Board is charged with managing the submerged and submersible lands for both the protection of natural resources and the financial benefit of the Common School Fund, which are sometimes mutually exclusive. When an upland owner desires clear title to filled lands, the process for getting the state to convey title involves historic research, persistent advocacy, and often payment for the market value of the state’s rights. This process is loosely regulated under state administrative rules and has resulted in much wallet damage and brain damage for unsuspecting property owners.
FLAG seeks to improve the regulatory procedures and to gain funding for DSL to methodically review affected waterfront areas, bring these claims to light, and resolve them. The group acknowledges that there is no practical method to streamline the historic research required to evaluate the veracity of a state claim to historically filled lands. It recommends the state quit claim any ownership rights valued at less than $20,000 without payment and charge only 50 percent of the value for state claims valued from $20,000 to $100,000. For claims over $100,000, it recommends the state negotiate a price, subject to approval by the State Land Board.
The final recommendation will be published in October, with the expectation that the State Land Board will authorize rulemaking in 2015. Stay tuned.
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