37-1128. Determination of navigability

A. After the commission completes the public hearing with respect to a watercourse, the commission shall again review all available evidence and render its determination as to whether the particular watercourse was navigable as of February 14, 1912.  If the preponderance of the evidence establishes that the watercourse was navigable, the commission shall issue its determination confirming that the watercourse was navigable.  If the preponderance of the evidence fails to establish that the watercourse was navigable, the commission shall issue its determination confirming that the watercourse was nonnavigable.

B. With respect to those watercourses that the commission determines were navigable, the commission shall, in a separate, subsequent proceeding, identify and make a public report of any public trust values associated with the navigable watercourse.

C. The commission shall make its determinations under subsections A and B of this section in writing with sufficient documentation and detail to confirm the rationale and basis for the determination.  The determinations constitute final administrative determinations and are not subject to title 41, chapter 6, article 10.

D. The commission shall immediately notify the department of any watercourse that it determines to be navigable or nonnavigable under subsection A of this section.  Within one hundred eighty days after receiving notice that a watercourse is:

1. Navigable, the department shall send notice of that determination to each record owner of, and each person or entity that has an interest of record in, any property that may be affected by the determination and to each person or entity that has requested notification of any determination of navigability.  The department shall include a statement of whether the department intends to seek judicial review of the commission’s determination. Any time after the date of the notice under this paragraph, the record title owner or lessee of any affected property may petition the department in writing to disclaim, release, relinquish or dispose of the property from public trust land status as no longer necessary or materially useful for the purposes of the trust.

2. Nonnavigable, the department shall send notice of that determination to each person or entity that has requested notification of any determination of nonnavigability.  The department shall include a statement of whether the department intends to seek judicial review of the commission’s determination.

E. After the time for judicial review of the commission's determination with respect to any watercourse has expired, as provided in section 37-1129, the commission shall cause a record of its determination to be recorded in the office of the county recorder of each county in which any part of the watercourse affected by the determination is located.