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  When are waterways private or public?
  Posted by: timothy585 on Apr-18-13 11:11 PM (EST)
   Category: Canoes 

In my spare time at work I enjoy browsing Google maps looking for new places to canoe/kayak around my state. I have a quick question...how is a waterway defined? In other words, I know the Mississippi river, or any other major waterway in my area is open to public navigation. But, I see many smaller streams that seem to flow through, or very near private properties, i.e. farms, nice homes on multiple acre lots, etc.

Anyway, where is it defined what a private waterway is compared to a public one? Does a property owner actually "own" a waterway through his property?

Does the waterway have to be defined as navigable to be open to public traffic? Is it legal for you to be on the water, yet considered trespassing if you step out onto the bank? I guess it varies from state to state, but wondering if there was a basic rule of thumb.

Thanks.


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Messages in this Topic

 

  You're in better shape in much of LA,
  Posted by: ezwater on Apr-18-13 11:17 PM (EST)
because expansion/contraction of rivers, bayous keeps many private homes back from the water. My experience there is that most land owners aren't silly about paddlers.

In Georgia, we lost a key court case, and an old and restrictive definition of navigability was upheld by the state Supreme Court. On non-navigable streams, the adjacent landowner owns the land under the river to the midpoint. Landowners could exclude us, but most do not.

If you have to stop on a non-navigable stream, for any of the usual reasons, just try to do so well out of sight of any houses or cabins. Common sense.
 
 
  Which court case is that?
  Posted by: Reefmonkey on Apr-22-13 5:01 PM (EST)
Because I don't believe a state court could trump SCOTUS decisions which state a stream which is navigable in fact is navigable in law.
 
 
  High water mark
  Posted by: willi_h2o on Apr-19-13 12:17 AM (EST)
-- Last Updated: Apr-19-13 12:21 AM EST --

Most of the time you are allowed to move
around below the high water mark.

Public bridges have easements and you can access
via those easements as well (with a legally parked vehicle)

In regards to legal navigability of a waterway, for the public :
- they merely have to be used; to be considered navigable.
By court definition: “”a capacity for meeting the needs and necessities of the people”"
Historical commercial uses like floating logs downstream
during the lumbering era helps support navigability claims.

While the log floatation test was the old yardstick
by which many “navigability” claims were measured;
-it is “how” modern waterways best serve the public (as historical intent of law)
that allows recreational usage to be considered in the determination of navigability.

The capacity for beneficial public service is paramount
towards being deemed navigable.
Courts adopted a rule of “capacity for use to meet public necessity” as the true test.
Entitlement to paddle upon any given waterway involves
the “capability of sustaining travel”.
Waterways are public paths, expected to be open to travel and other uses.
This public expectation is still valid today in a modern society.

Tread cautiously, be polite, be nice,etc.



 
 
  Here in NC
  Posted by: jackl on Apr-19-13 6:42 AM (EST)
If the waterway is navigable it is open to the public.
If it is not navigable, and the property owner owns both sides, he can post it.
If he only owns one side he can't post it, but he can post his property.

I guess navigable would be determined by the courts

jack L
 
 
  Best to check paddling guides
  Posted by: Celia on Apr-19-13 8:48 AM (EST)
If you are unfamiliar with an area, your best bet is to check paddling guides like those from the Appalachian Mountain Club, ADK and similar publications for other regions. Things are moving here - a section of a long-used canoe passage was blocked for quite a while by new owners of adjacent properties and the court just upheld paddler's rights there within the last year. Newer property owners are being a problem in many areas where no one ever thought about it before.

Also, do NOT assume that you are good up to the high water mark everywhere. There are a number of states that use a lower point, for example in Maine it is mean low tide. That means officially you can't pull out on some inviting but private island except for maybe an hour during daylight, on a very low tide day. Curiously, if you are doing it to check out your navigation and plot a course, or fish, you can go a bit higher. It is good to always carry paper charts in Maine even if you don't know how to use them, because they are more compact than a fishing pole.
 
 
  wow
  Posted by: slushpaddler on Apr-19-13 10:06 AM (EST)
That has to be pretty restrictive in some places - Maine tides can be pretty dramatic, no?
 
 
  MITA
  Posted by: Celia on Apr-19-13 10:21 AM (EST)
The Maine Island Trail (and membership in it) is the solution.
 
 
  someday, I hope
  Posted by: slushpaddler on Apr-19-13 11:46 AM (EST)
The only time I was in Maine, I had a limited schedule and no kayak (or fellow kayakers to paddle with). But the trip really made me want to come back and paddle Downeast, Acadia, and the coast, to Canada. Amazing scenery.

The tides also told me I'd better not try it alone!
 
 
  and if not there are Bureau of Public
  Posted by: kayamedic on Apr-19-13 12:29 PM (EST)
Lands islands and quite a bit now in conservancy on the shore.

Its best not to disembark in front of someones house without asking permission.

And most of us paddling the coast have a map. Enter navigation

http://www.seagrant.umaine.edu/files/pdf-global/90accessmoody.pdf

It all arose from beachfront property owners.. Its not stopped surf kayaking on the beaches south of Portland.
 
 
  check your state regulations
  Posted by: slushpaddler on Apr-19-13 9:10 AM (EST)
This recent case in GA involved a channel along the savannah river that diverges and then rejoins the rivr, forming an island. The State had ruled that the channel, though navigable, was private property. This is in conflict with the federal position that if the river is navigable, it can be used publicly.

Here's a link to the case:

http://chronicle.augusta.com/news/metro/2013-03-27/plans-kayak-event-stir-savannah-river-privacy-issues
 
 
  some rivers private?
  Posted by: melenas on Apr-19-13 1:10 PM (EST)
As people have said, navigable streams are public,
but the adjoining land may be private.
Nonnavigable streams are owned to the middle by
the adjacent landowner. Defining navigable and
stream bed is more difficult.

There seem to be exceptions, though. I read that
due to some old Spanish land grants, some Texas
river beds (Devil's River, Rio Frio) are
apparently at least partially privately owned,
meaning you trespass the moment you step out of
the boat and you'll find barbed wire fences (some
legal, some illegal) strung across the river,
maybe with a "No Trespassing" or "Private River"
sign.

Legal or not, let me quote from some old copy of
"Rivers and Rapids": "Needless to say, there's no
doubt of the outcome if arguing these points out
in the middle of nowhere with some irate landowner
toting a Winchester." Of course you can report
any incident afterwards (if you live to tell it),
but I also read that even if you are legally
right, enforcement is weak to non-existent, since
the sheriff is elected by those same landowners
and doesn't give a damn about some vacationing
city paddlers.
 
 
  Thanks
  Posted by: timothy585 on Apr-19-13 1:23 PM (EST)
Lots of insight and knowledge posted in your responses. Thanks!
 
 
  not always
  Posted by: kayamedic on Apr-19-13 5:03 PM (EST)
Check out the Shingle Shanty case in NY State.

Laws vary state to state, so any response has to be state specific.
 
 
  You have the Spanish grant issue wrong
  Posted by: Reefmonkey on Apr-22-13 5:47 PM (EST)
-- Last Updated: Apr-22-13 5:53 PM EST --

The preexisting Spanish and Mexican land grants on some property actually make MORE streams publicly accessible than would otherwise be.

The law of Spain and Mexico did not distinguish public and private streams on the basis of navigability. This makes sense, since Spain has only one navigable river, located far in the south, so river navigation rights weren't important. Streams were valued primarily as a source of water for household use and for irrigation, rather than a way to move people and goods. So when the sovereign granted land, perennial streams were retained for public use, regardless of navigability, so as to make as much land as possible capable of settlement. A stream is perennial if it flows most or all of the year. In determining the rights of holders of title under Mexican grants, the laws of Mexico in effect when the grants were made control. So in counties that contain Spanish or Mexican land grants, there are an unknown number of perennial streams which are public streams, even though they may not be navigable.

So in Texas freshwater streams and rivers are open to the public if they meet anyone of three tests: (1) "Navigable by statute" ("'Navigable stream' means a stream which retains an average width of 30 feet from the mouth up"); (2) "Navigable in fact"; (3) or recognition as a perennial stream under a Spanish land grant issued prior to December 14, 1837.

 
 
  The issues with Devils and Frio were not
  Posted by: Reefmonkey on Apr-22-13 6:01 PM (EST)
-- Last Updated: Apr-22-13 6:03 PM EST --

actual private ownership of the rivers, but perceived ownership by adjacent property owners coupled with very limited public access points to the rivers. The stream beds of the rivers are public property.

 
 
  Quick Note
  Posted by: jimyaker on Apr-19-13 3:58 PM (EST)

Though many waterways are public and legal, not all are advisable for paddling. Even many common trips have landowners who are not "paddler friendly" and others are outright hostile and destructive. With any unknown stretch of water, keeping a low profile us a good idea.
 
 
  Get as much local info as possible
  Posted by: pikabike on Apr-19-13 5:29 PM (EST)
Colorado is among the states that has had some potentially deadly situations involving landowners overstepping their bounds and putting boaters in deliberate danger.

You don't want to be dead right.
 
 
  I wote my thesis on this subject ,,,
  Posted by: Glenn_MacGrady on Apr-19-13 8:51 PM (EST)
... as a graduate fellow at the Harvard Law School in 1975, subsequently published and still cited by courts and commentators.

The general rule has been stated: The public owns the bed of any "navigable" water. Tidal water is presumed to be navigable up to what is called the "mean high tide" line. What "navigable" means for fresh water bodies can, within limits, vary from state to state, and the only way to be positive one way or the other on specific body of fresh water is a definitive court decision.

A little more complexly: The English king is said (erroneously, per my historical research) to have held navigable waters in trust for the public. When America became sovereign, the king's ownership of the beds of navigable waters in America devolved on the federal government. The Supreme Court of the United States developed three "tests" of "navigability" in the 19th century: a test for bed ownership, a test for federal regulation (by the Army Corps of Engineers, for example), and a third test for the jurisdictional reach of federal admiralty courts. These three tests are similar but not identical. Hence a water body theoretically can be navigable for one federal purpose (such as regulation) but not for another (such as bed ownership).

When each state became sovereign, the beds of the federally navigable water bodies -- determined as of the date of statehood -- devolved on the state to be held in trust for public navigation. Therefore, theoretically, any water body navigable under the federal bed ownership test at the time a state entered the union should still be navigable in every state (unless substantially altered by erosion, reliction, avulsion or permanent drying up).

However, each state can have a navigability test that is more liberal or encompassing than the federal bed test. That is, the states are free to have rules that would render a water body navigable even if it would not be navigable under the federal bed test. Some states have, for example, adopted navigability tests such as log flotation or recreational boating. Again, for any given water body, a certain answer can only be obtained by court litigation.

Since there probably will not be a court decision for marginally navigable water bodies -- just using your common sense -- all the practical cautions noted above should be taken: be careful, polite, don't start fights about it with a land owner, don't camp or even walk on the bank unless necessary to portage around rapids or an obstruction.
 
 
  The bottom line is...
  Posted by: Al_A on Apr-19-13 10:50 PM (EST)
you can read all the legal mumbo jumbo you want, but the question varies state by state, and is entirely dependent upon how each state views it. There is supposedly a federal navigability law, but no state in the Union pays any attention to it except in the cases of a few large, commercially navigable rivers like the Mississippi. If it has barge traffic on it, it's navigable and the public owns the riverbed up to the high water mark. If it's any smaller than that, in MOST states, the private landowner owns everything but the water, including the riverbed beneath the water. If the landowner only owns one side, he owns the riverbed to the center of the channel. If he owns land on both sides he owns the entire river bottom.

That's how, in various states, you can float it, but if you touch the bottom or even throw out an anchor you're trespassing. There are a number of Western states where this is so, and while some landowners don't care, many are true PIAs and seem to just sit and watch for some floater to hit a rock or brush a willow limb, and then they jump all over them.

And when it comes to marginally floatable streams, things get REALLY sticky.

The only states where I KNOW what the law is are the two states where I have residences, Missouri and Montana, and actually both states are pretty liberal in their interpretations of the public's right to float and fish rivers. Montana has a river access law that basically states that if you can legally access it, at a bridge crossing or a public access, you can wade it or float it and go anywhere you wish, no matter who owns the land. Even Montana has that gray area on when a stream is too small to be considered "public", but you can legally wade and fish some pretty small creeks, streams that are far too small to float.

In Missouri, there is no hard and fast "law", it's all based upon court cases. Basically, the Missouri Supreme Court ruled that even though the landowner owns everything but the water, the public has an easement to float, fish, camp, picnic, and swim anywhere below the alluvial banks (this includes gravel bars, but not the bottomland fields off the river). The court based this upon several rather obscure factors, including whether the stream had ever been used to transport logs to market, but the court case that decided it was on a pretty small stream, one that is only floatable during spring or high water periods, so theoretically it should cover most marginally floatable streams. Problem was that it was decided ONLY for that one section of stream, so further court cases were necessary to decide for other smaller streams. The larger float streams were fine, but there have been cases that went both ways on some of the smaller streams. And as a practical matter, if you're on a smaller stream, it pretty much depends upon the outlook and beliefs of the sheriff and county prosecutor in the county where you happen to be floating. Some counties are more friendly to floaters, others are more friendly to influential landowners. But basically, if people float it regularly it's okay to float, if it's small enough that not many people float it, you're in that gray area.
 
 
  I paddle in a lot of states
  Posted by: trvlrerik on Apr-20-13 10:30 AM (EST)
and I have found a pretty good way to find if a waterway is considered "public access".
I contact the area agricultural extension agent and find out if streams or rivers are cleared for fencing to contain livestock. I have found that the agriculture agents work with (in most states) USGS and Corp of Engineers for advice if a waterway can, or should be, fenced to contain livestock.
If it is cleared for cross river fencing it is not considered public access waterway and permission is required.
The extension office has the land owner contact information, and in my experience a five minute phone call will get you permission to paddle, and in most cases a pretty decent report on the conditions of the river in regard to safety issues and wildlife in the area.
I have found that local farmers have some of the best real time information on some pretty cool places to go.
 
 
  Public?
  Posted by: ppine on Apr-20-13 10:46 AM (EST)
Good discussions by willi and Glen. The states determine the interpretation of the law.

I would also add the local interpretation. Some people just plain don't like people in boats. In those places you have to look out for barbed wire fences and people with guns. I cannot emphasize enough the need to tread lightly and be careful out there. Fortunately, In the West it is almost always possible to find public land. Know where you are at all times.
 
 
  Very Important: If you encounter
  Posted by: suntan on Apr-20-13 1:28 PM (EST)
Law Enforcement officers in a debate over private land...DO NOT ARGUE. Just obey what they are telling you to do at the time and live to fight it out in court another day.
 
 
  The law vs law enforcement knowledge
  Posted by: oldiron79 on Apr-23-13 12:09 PM (EST)
Well in my state any permanently flowing body of water that does not start and end on the same property is by definition a public waterway, but the average cop is probably not going to know that unless he(or she) is in the boat unit so if you have a cop in a car you are probably gonna be given a citation(written warning unless you have previous offenses) for trespassing, you can probably get a lawyer and beat the citation in court, but the average beat cop would be ignorant of this law.
 
 
  LA is a little different
  Posted by: pirateoverforty on Apr-20-13 3:13 PM (EST)
because a court case muddied the waters about public water usage. Open for public commerce does not necessarily equal open for recreational use.

Try some of the links on this sight http://www.segnette.com/links.htm

There is one place I land at on a particular float and when my wife asked if we were allowed to I said "I think we have a legal right to be here but the security guard who could show up probably wouldn't agree so let's not dawdle"
 
 
  Listen to Glenn
  Posted by: rpg51 on Apr-21-13 8:18 AM (EST)
-- Last Updated: Apr-21-13 8:19 AM EST --

and realize that people have been fighting/arguing about the answer to this question for ions and you will not find a definitive answer to a specific question you might have about the competing rights in any given situation in the pages of paddling.net.

Glenn's got the credentials, wouldn't you say?

 
 
  Well we aren't wanting him to
  Posted by: kayamedic on Apr-21-13 8:42 AM (EST)
re present his WHOLE thesis.

Maine waterways are all public. Access to them is not always.
 
 
  Yes, fighting for thousands of years
  Posted by: Glenn_MacGrady on Apr-22-13 1:35 AM (EST)
-- Last Updated: Apr-22-13 1:44 AM EST --

I began my thesis with an exhaustive study of Roman law on the subject, then Spanish and French law -- which are called "civil law" countries, in which the laws are mainly codified by legislatures rather than invented and proclaimed by judges. I then moved into a long analysis of supposed English law from the 14th-19th centuries, and finally into and in-depth survey of American federal law and an overview of general categories of state law, explaining the proper interplay of federal and state laws.

My academic conclusion was that navigability has been a confused hodge-podge since Roman times, both in theory and even more so in practical application. I further found that the entire public trust doctrine was based on an incorrect understanding of English legal history by American judges and treatise writers in the 19th century, especially a wildly creative New Jersey judge in a key case.

The article was 105 pages long with 553 footnotes, and it seems to be too old to be archived in full text on the free internet, but here's the table of contents of the legal journal:

http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/flsulr3&div=6&id=&page=

I should add that when I was in law school at FSU I clerked for the state agency that owns all non-navigable waters in Florida, and assisted in the litigation of many navigability cases against real estate developers and private land owners. After I graduated, my first job was to work for a law firm representing the developers and private landowners in navigability litigation against the state. Then I got my fellowship for an advanced law degree at Harvard, where I decided to investigate the murky historical sources for modern doctrines. After that, my career went in other directions.

 
 
  In Arizona
  Posted by: rikjohnson on Apr-22-13 1:05 PM (EST)
ANY navigable waterway is public!

And a group of paddlers here test this regularly by floating down a seasonal river on a log or such.. they win.

BUT, just because the law does allow you to use the water flowing through private land (you still need owners permission to beach on their land) the Law doesn't really do anythingwhern the landowner decides to run a barbed wire fence across that river or stream!

Also a lot of rivers flow through indian Reservations which cause legal problems as the are a sort of 'soverign nation' status and the reservation can require you to buy a pass.

Also, although the Coilorado River through the Grand Canyon is public, the State can regulate howmany people are on that river at any one tine.

It's like driving a car...
You have the right to drive a car on any road, BUT, the state can require you to buy a Drivers license and take a drivers course and charge a 'repair fee' so if the state wants to stop people from driving, they simply raise the DL fees and over-insure the driving schools until they all close which means you go to a yearly drivers school run bythe state at $500 a year plus $500 a year for your DL and a $500 repair fee per year.
It hasn't been done yet, but it is legal and can be applied to anythingthe govt wants to regulate but cannot actually stop.

So, the state cannot actually stop people from running the Colorado River, but they can overregulate it to make it too expensive to run.

And to get back to your question, in arizona, the state cannot stop you from runnign a river through private property, but they can also be too "busy" to cut all those barbed wire fences the owners run across those 'free access' rivers.
 
 
  Priviledge vs. Rights vs. Entitlement
  Posted by: willi_h2o on Apr-22-13 1:26 PM (EST)
Keeping a low profile, being respectful, quiet, descent,
pleasant and non-argumentative go a long, long way.
 
 
  absolutely
  Posted by: slushpaddler on Apr-22-13 1:31 PM (EST)
 
 
  Yes
  Posted by: PJC on Apr-23-13 1:43 PM (EST)
And above all DON'T LITTER! I know most of us are dedicated "leave no trace" folks, but there are sure many paddlers who aren't. It even behooves us to pick up after them if only to improve paddler relations with landowners. Fire scars are pretty bad form also.

As an aside, and a tangential, but interesting, issue that has been brought to my attention lately... stream-wide strainers.
We'd all, I think I'm safe in saying, prefer not to trespass on private lands to get around these even when state's laws expressly allow it. So you take a small handsaw to clear a path - no more - through the small branches of a fallen tree. Wouldn't you do the same on a road or sidewalk following a storm if the road crews hadn't gotten there yet? I think of it as neighborly cooperation and almost a civic duty in that situation. And the situation on a navigable waterway is very similar if travel is allowed on it, wouldn't you think?
From what I'm hearing here in this state, that's apparently not so. The tree, dead or alive, is the property of the landowner who's roots its on and he doesn't have to clear it up if he doesn't want to, even if it is blocking a public right-of-way like a stream. And we have no right to make a cut on his tree even if it is down and blocking a public waterway. We could be considered vandals and charged for doing so.

Seems like a pretty Draconian way for a modern government to address an ancient and common travel situation. Apparently liveries and other businesses can cut downed trees if it can be argued that it affects their business in some way, but we as simple travelers on a public right of way aren't allowed to.
Now isn't that an odd twist in a country with a history of pioneering and regard for the rights of the individual such as ours?

Water laws, as I understand it, are some of the first laws on record anywhere. Again, as I understand it (and like most of us my understanding is decidedly limited), one of the main reasons China first consolidated a formal government, one of the earliest, was to regulate water usage and travel on it. Water laws made a nation out of a bunch of tribes.
Yet here we are, thousands of years later, with "gray areas" in water laws that a truck could be driven through.
If not water travel rights, can anything ever be really decided legally?
 
 
  That's the way it is in most states
  Posted by: Reefmonkey on Apr-23-13 3:15 PM (EST)
-- Last Updated: Apr-23-13 3:22 PM EST --

I would favor private citizens being allowed to remove any obstruction to navigation by cutting the parts in the waterway, whether its roots were still on private property or not, but I don't see not being able to as such a big deal. Just quickly portage around it (which you would have the right to do in this situation, so what if an ill-informed landowner calls the cops, youll be long gone by then and would prevail in court anyway), it'll be quicker than cutting through it, then report it to the local fish and wildlife service or local river authority or flood control district. They are going to have an interest in removing any potential logjams that could lead to flooding, and they have the authority to remove it.

If it is on a public water body that you use regularly, and for some reason the local authority never gets around to removing it, send the landowner a polite and friendly (but certified) letter telling him that you want to inform him of the tree that is blocking the publicly navigable waterway running through his land. Ask him nicely if he could please remove it. Your tone should be as though you assume he had no idea the tree had fallen, and you're sure had he known he would have already removed it. Offer to help him out, maybe even to split the costs of a tree removal service with him. If he doesn't comply send him two or three more certified letters first stressing the flood risk the tree poses to him, the safety risk it poses to water users, how it necessitates walking on his land which is your legal right in this case but something you would rather not do if you could help it, and then later stressing his duty to remove the tree. Once you have this paper trail indicating he is aware of the obstruction to navigation but has refused to do anything about it, file a purpresture complaint with the proper authorities.

For help in figuring out who the landowner is, using topo maps and county property maps together are very useful, and then using the county appraisal district website to get contact information.

I don't think this is a matter of "gray areas" in the laws, but merely having the patience to avail yourself of the law by following the proper procedures.

 
 
  Government agencies and tree removal?
  Posted by: Guideboatguy on Apr-23-13 10:57 PM (EST)
-- Last Updated: Apr-24-13 10:11 AM EST --

Your comment about reporting a blockage to some government agency, and your expectation that somebody there would actually do something, seems like quite a stretch. I honestly can't imagine a scenario where anyone in any branch of public service would care or even have such a responsibility. I don't see flooding as an issue at all, since the biggest, densest, nastiest log jams I've seen don't raise the river enough to notice (in fact, as soon as a tree falls and obstructs flow, the river simply scours a hole underneath it), but in any case, the very idea of "improving flow" has, for decades now, been seen as old-fashioned and counter-productive on any river small enough for logjams to be a consideration. What I have seen is that on any river with more than sporadic boat traffic (whether motorboats or paddle craft), someone will clear a path, and if there's no traffic to speak of but the river is narrow enough to be blocked by one or two trees, there will be not just those but dozens or even hundreds of others along any stretch long enough to be considered a daytrip. Maybe trees are scarce in Texas, but here, I think one probably falls across a river, somewhere in the state, about every five seconds :)

 
 
  Here in Texas
  Posted by: mjamja on Apr-24-13 12:13 AM (EST)
river blockages are handled by the "chainsaw fairies". Although I have never seen one myself, every time I pass hrough a john-boat size opening with freshly sawed cuts on each side I say a little thank you to them.

I hear a few paddlers have even taken to carrying an extra Shiner(beer) or two as an offer of appreciation in case they happen upon these delightful creatures.

Mark
 
 
  Woody Debris Removal
  Posted by: willi_h2o on Apr-24-13 12:26 AM (EST)
-- Last Updated: Apr-24-13 12:40 AM EST --

Volunteer groups are stewards of the river and
keep some smaller rivers navigable for recreation
in Michigan. They work closely with the state agencies
and are up-to-date on what constitutes trespassing.

A river is a trail - just like the ones used for
cycling, jogging, hiking and equestrian groups.
Maintenance is required and expected for navigability.

http://upload.wikimedia.org/wikipedia/commons/thumb/3/36/Shiawassee_Heritage_Water_Trail.jpg/800px-Shiawassee_Heritage_Water_Trail.jpg

Woody Debris Removal Manual :
http://www.rochesterhills.org/documentcenter/view/255

 
 
  Ecological Considerations
  Posted by: Guideboatguy on Apr-24-13 9:57 AM (EST)
I just skimmed a little bit of that last article, and I wish to read it in its entirety later. Thanks for posting that. That article recognizes the value of woody debris, something that the old ideas of "flood control" and "lets get this river flowing faster" failed to recognize, to the great detriment of many rivers. Thankfully, at least around here, government agencies involved in such things have long abandoned such ideas.

Some folks in our local paddling club made a big project of opening a path through deadfall obstacles on a creek near here, and they got approval from the DNR to do so, but with the stipulation that removal of material be kept to a minimum. "Clearing" the creek, even at particular locations, would not have been permitted. An earlier post here about government agencies being interested in maintaining clear flow makes me think some backward states are clinging to ancient ideas about "improving" the natural condition of things. Thank goodness that's becoming less and less common.

On that topic, I heard a talk at Canoecopia addressing this very thing, but in regard to developed lake shores. It's been found that even the small amounts of brush laying in the water along a lake shore (the amount of brush is infinitely small relative to the volume of water when compared to most rivers) is critical habitat for lots of life, things on which everything else ultimately depends. When every landowner removes that little bit of brush from the water in front of their house, just to make it look nice, the negative consequences are pretty severe.
 
 
  Absolutely true
  Posted by: PJC on Apr-24-13 2:27 PM (EST)
Though during the years when I was working at a farm down the road from me we did pretty much "clear" a section of the creek that flowed through after having found that if we didn't during times of flood a good deal of water would be diverted from the creek course through our fields. And it did damage. There was current when the creek was obstructed, standing water only when it wasn't. But that was just in one section where we had problems, we left the rest pretty much be.

I'd never suggest clearing a stream of all woody debris - but cutting a path - three or four feet wide and something that a paddler might have to duck to get under seems like a "good deed" done for all involved, paddlers, land owners, the DNR (since they don't have to listen to complaints about something they would never do anything about, at least in this state, anyway).
There is a safety aspect, though admittedly usually pretty minor, to this also. It isn't always perfectly safe clambering up a muddy undercut bank, hauling a boat, upstream of a strainer. Often that's the only way around, and it could contribute to erosion if enough people follow the same route around or if its in unstable condition due to the weather. Beating a path through what's often deep, soft mud on the inside of a bend isn't without consequences either.

The fellow who brought this to my attention (while I was manning a booth at Canoecopia for a volunteer river protection group) was speaking of a part of a creek just outside of our county that another local volunteer group was working to clean up. They encountered an obstinate landowner who claimed that if he let them cut a path through the downed trees his property would be over run with drunken canoeists and he would have to clean up after them. (Not likely...) He flatly refused to let them cut a path through the downed trees on his land and his stated reason is that he wants to discourage folks from paddling the stream. He continues to do so. Alas, having seen what some, especially the rental paddlers, often do out on the river proper, I can see where those fears might come from.

Of course for most of my life, I've just portaged around such things, quickly, quietly, almost covertly. Or if I felt in a generous mood toward future paddlers or thought I might be back often myself, I'd cut a path quickly, quietly, and almost covertly.
I feel no guilt about it either way. And I totally agree with reefmonkey, it is no big deal either way, as I see it.
But until I met this fellow it never occurred to me that there was ever anything potentially criminal about clearing a small opening for a canoe while on the water. It was just something one did to get rid of an annoyance, like swatting mosquitoes or removing a stone from one's boot. Who questions who's stone that is in your boot or if those mosquitoes are "live stock" and the property of the owner of the land they fly over? (Perhaps raised on site to discourage drunken paddlers?)

So I mentioned it here because it seems related to the topic of "who owns the river; is it public or private".
 
 
  It's a stretch that happens quite a lot
  Posted by: Reefmonkey on Apr-24-13 5:46 PM (EST)
-- Last Updated: Apr-24-13 6:10 PM EST --

where I live, where it is flat and low and we get a lot of rainfall and are floodprone. Most of our creeks and bayous are channelized. I have done a lot of stormwater planning and permitting for industrial facilities, and have worked with the flood control district extensively. They do routine maintenance, including vegetation removal, and usually catch a downed tree when they are in the area, but they also encourage private citizens to inform them of downed trees or other damage to channels through their citizen service center.

From their website:

"Does the District remove debris from channels? From property?
Debris Removal operations remove dead trees and other impediments to conveyance from district channels. A number of channel locations have been identified as areas where debris collects regularly; these locations are on cyclical schedule for debris removal approximately once every eight weeks. The District also has programs to collect floatable debris (such as Styrofoam cups) from several waterways in Harris County. The District is not allowed to remove debris or trees from private property."

...

"Please help to ensure that the District knows about damage to any particular channel. The District would appreciate it if you would let us know about the problem, so appropriate action can be taken to repair it. Please contact the Citizen Service Center."


It's not about some states being "backward" or "old-fashioned", it is about balancing human uses and needs with ecological considerations, and since the topography, hydrology, and ecology vary greatly across this country, the way other states manage drainage basins may differ from the way your state manages its (or you believe it manages its) but that doesn't mean they are wrong.

 
 
  That makes sense
  Posted by: guideboatguy on Apr-24-13 6:34 PM (EST)
-- Last Updated: Apr-24-13 7:00 PM EST --

I get it. Basically, your natural channels have mostly been replaced by ditches. Naturally they need to be prevented from returning to their natural state if they are to function as originally intended. I suppose if you don't have much higher ground available in the area, continued development in such places can't be avoided. Here, it's the other way around, and it's very difficult to get government approval to build in lowlands like that, and channelization of natural rivers and creeks is no longer done. It wasn't always like that of course, and I view the current level of protection afforded to such places as progress, hence my comment to the effect that the continuation of destructive practices like that seems old-fashioned by comparison.

As far as what I "believe" to be my state's policy toward removing deadfall, never in my life have I heard of them doing anything of the kind. Local highway departments will, on very rare occasions, find it necessary to remove logjams from the upstream side of bridge pilings, but that's not a reflection of river management. Rivers that are small enough to be blocked by downed trees simply aren't "managed" to maximize or otherwise alter rates of flow. For that matter, other than what the Army Corps of Engineers does on the Mississippi and commercially-used parts of the Fox, it's not done on larger rivers either. I understand that there WAS some occasional dredging of the upper reaches of the Fox River because it's connected to an ancient barge canal, though neither that part of the river nor the canal have been used since the arrival of the railroads more than 100 years ago. That dredging was the result of some sort of mindless federal game, where deciding whether or not the channel needed to be maintained simply hadn't been assessed during the whole time the system remained unused, so it was done on principle. That's the way it was explained to me by someone who keeps track of such things, but I was also told that they eventually "figured out" that the work was unnecessary and it hasn't been done in a very long time.

 
 
  Again a gross oversimplification
  Posted by: reefmonkey on Apr-24-13 9:29 PM (EST)
I wouldn't call buffalo bayou, sims bayou, white oak bayou, armand bayou, greens bayou, cypress creek etc "ditches." Many different management strategies have been used over the years.
 
 
  Fair enough
  Posted by: guideboatguy on Apr-24-13 9:36 PM (EST)
-- Last Updated: Apr-24-13 9:55 PM EST --

It's too difficult to ascertain all pertinent details in such brief posts. I figured that any "channelized" (therefore, presumably dredged and straightened) stream that's so narrow as to become blocked by fallen trees can't be much more than a ditch. Sorry about that. In any case, presuming that there's most likely some government agency doing similar things on "ordinary rivers" didn't make any sense to me, and I still wouldn't make that extrapolation based on such a unique situation. Clearly this is a very unusual place, as far as man-made changes/management goes. As another example of what I'm thinking, any river I've ever seen where blockages can develop would be completely inaccessible to any kind of heavy equipment, except at bridges and a few scattered locations where a road might not be too far away. Making the river accessible to such action would require a tremendous amount of road-building. Certainly no machinery could possibly be floated in on an "ordinary river" of such size that fallen trees might be of concern to anybody, but I suspect that's no problem on a channel that's been dredged, straightened, and is maintained in such a condition.

 
 
  No, what happened is you chose
  Posted by: reefmonkey on Apr-25-13 3:47 AM (EST)
-- Last Updated: Apr-25-13 3:48 AM EST --

Disparagement over admitting you were wrong about whether or not a public entity might do tree removal on public waterways. No need to complicate it any more than that.

 
 
  I WAS confused
  Posted by: Guideboatguy on Apr-25-13 9:03 AM (EST)
-- Last Updated: Apr-25-13 9:24 AM EST --

I guess it's time to drop it, but I honestly didn't get how the management of rivers that are both channelized and very large (as you now imply) is relevant to a discussion of rivers that are so tiny that the legality of carrying your boat around complete blockages caused by fallen trees is cause for concern. It seems you were comparing apples to oranges and I didn't expect such a comparison from you. I also wouldn't have expected you to make a comparison between such heavily managed rivers within such thoroughly industrialized/urbanized areas to the kinds that occur elsewhere, nor the accompanying statement that reporting fallen trees to some government authority is only natural. I "get it" that this is normal where you live, and yes it seemed backward to me when I had the topic of small, natural rivers in my mind, but I'm not "wrong" to mention that 99 percent of us don't see any such "management" on our rivers.

By the way, I used to read your contributions to some of the debates on B & B, and I always thought you showed really good sense in presenting your ideas, so yes, this whole idea that one should actually expect government help regarding fallen trees really was a "stretch" in my mind, because it wouldn't happen in any place I've ever been or heard about.

 
 
  Again you are relying on assumptions
  Posted by: Reefmonkey on Apr-25-13 10:40 AM (EST)
I did not imply that these were "large rivers", just that they were not little ditches. There is quite a lot of room for streams of many different sizes within those two extremes.

Take Buffalo Bayou, the most important stream in my area, which runs for about 50 miles, starting in rural Fort Bend County to just southeast of downtown Houston where it becomes the Houston Ship Channel and then empties into Galveston Bay. From its headwaters to the western edge of the Houston city limits, it is managed by the US Army Corps of Engineers. From there to downtown, it is managed by the Harris County Flood Control District with USACE cooperation, and once it becomes the Houston Ship Channel, it is managed by the Port of Houston Authority.

From its headwaters to downtown Houston, much recreational activity takes place on the bayou. It is too narrow and shallow for motorboats, but many private kayakers and canoers, as well as canoe livery services, travel on it. Its width in this area is about 150 feet. From the headwaters to the USACE flood control gates, the surrounding land is rural for the most part, though exurban growth is changing that. From the gates eastward for about 12 miles, the bayou is bordered on both sides by public parkland, and from the end of that segment for another 13 miles it passes through private property, mostly upscale private houses with dense forest. Then it passes through a city park before opening up to a mix of smaller city parks and a more urban landscape around it just west of Downtown. So much of its course west of downtown Houston it is really just a large creek passing through attractive forested land, making it a very pleasant and well-used recreational waterway, that is also managed for flood control. This is not an apples to oranges comparison at all.

Two issues:

First: You said "I honestly can't imagine a scenario where anyone in any branch of public service would care or even have such a responsibility." Well, I provided you a scenario. Not an apples to oranges scenario, but a scenario of a stream attractive enough to be used for recreation, small enough that logjams could present a flood issue, and managed by a government agency that does remove trees when they fall in it.


Second: You said "I don't see flooding as an issue at all, since the biggest, densest, nastiest log jams I've seen don't raise the river enough to notice (in fact, as soon as a tree falls and obstructs flow, the river simply scours a hole underneath it), but in any case, the very idea of "improving flow" has, for decades now, been seen as old-fashioned and counter-productive on any river small enough for logjams to be a consideration." The US Army Corps of Engineers and Harris County Flood Control District seem to disagree with you, at least in this instance, and I am not inclined to debate the wisdom of their management plan with you, my only point was that the thing you said you "can't imagine" occuring, occurs. How often it occurs is up for debate, but I doubt that buffalo bayou and the other streams of Harris County are so exceptional as to be singular. PJC did not mention a particular body of water he was talking about, he seemed to be merely talking about the issue in general, so I merely mentioned this as a possible course of action. Since 81% of the US population lives in urban areas and it is likely that a water body an urban dweller uses regularly (and I did suggest this course of action only for a water body he uses regularly) is going to be fairly close to that urban area, it's not that much of a stretch that such a body of water might be used recreationally as well as managed for flood control.
 
 
  I'd debate USACE mgm't plans!
  Posted by: slushpaddler on Apr-25-13 11:54 AM (EST)
-- Last Updated: Apr-25-13 11:58 AM EST --

I can give you numerous examples of where and how those management plans have failed all or parts of a community. The USACE is in large part responsible for why the upper great lakes are low presently. I'm particularly skeptical when it comes to the USACE. The USACE is like a DOT in that they have a limited scope and concerns.

In my state where streams and rivers have significant gradient, I have to side with gbg - deadfall presents little if any flood danger. On the other hand, watershed organizations across my state who help manage streams from a habitat standpoint - blue ribbon trout streams, for example - advocate leaving deadfall in place. They get support from state agencies. If flooding is an issue, state agencies obviously take that into consideration.

I'd also reference my conversation with Willi that paddlers in my state face a tough uphill battle if they think their use should get equal or greater consideration than habitat issues relating to fishing. Better to work toward compromise and common goals and apply them where appropriate.

Probably where we all agree is that the approach to woody debris removal is context dependent.

Anyway, this is a really good thread because it makes us think about these issues from many perspectives and contexts (plus, I think Glen's post and research re: the history of navigable waters is pretty interesting).

 
 
  That's fair enough
  Posted by: Reefmonkey on Apr-25-13 1:01 PM (EST)
I wasn't really dealing with whether or not cremoving a felled tree or even any of these agency management practices are appropriate, just that at least in some places they do exist and PJC could attempt to avail himself of them if he so desired.
 
 
  I paddle all the places PJC does ...
  Posted by: guideboatguy on Apr-25-13 2:00 PM (EST)
... and no, there is no government agency here that can, or wants to, remove fallen trees. In fact, the agency most closely in charge of such things will instruct you to leave them be, as much as possible.
 
 
  I'm of...
  Posted by: Al_A on Apr-24-13 12:47 AM (EST)
two minds when it comes to removal of blockages. If it's on a well-used waterway, especially one that has canoe liveries, any tree soon gets cut, either by the canoe livery or by whoever is using it. If I'm on such a waterway, that's pretty much what I expect to happen and I'm fine with it. But on a wild, little used river, I ain't gonna cut it myself and I DON'T want anybody else to do so. That's just part of the risk and the experience of being on a wild stream.
 
 
  that's wise advice
  Posted by: slushpaddler on Apr-24-13 2:34 PM (EST)
Add to that, that some watershed organizations prefer that deadfall be left in place for habitat. I know a river where they'd hang you for clearing it!
 
 
  Garbage collection
  Posted by: willi_h2o on Apr-24-13 2:44 PM (EST)
-- Last Updated: Apr-24-13 2:54 PM EST --

Those woody debris strainer messes make wonderful
garbage collectors for all those styrofoam worm cups
and lids the fishermen seem to "loose" along with their
plastic water bottles, bobbers, and beer cans.

Nothing like decorating a natural debris pile with garbage
for that outdoor experience while paddling.

Everyone lives downstream from somebody else.
Some clean it up, others are apathetic and turn a blind eye

Fishing license fees don't exactly fund clean-up efforts
-at least not in Michigan, because the state does ZERO

http://picasaweb.google.com/108590711667865641354/KayakingShiawasseeRiverArgentineToCorruna#


This work was done by 501-3c NonProfits
to open the river via "slots" for navigability.

Maybe other states are different

 
 
  I'm not sure I agree
  Posted by: slushpaddler on Apr-24-13 4:02 PM (EST)
Maybe that's true in the southeastern part of the state, where game fishing isn't as popular. I know that TU does plenty of work on trout streams in the northern LP and UP. And fishing pays the bills up north.

Many cleanups and stewardship programs are coordinated by watershed groups who aren't necessarily interest-specific toward paddling or canoeing.

I would agree, however, that the State doesn't give paddlers much consideration compared to the fishing community. But fishing is a huge tourism draw for the state.
 
 
  Blue Infrastructure
  Posted by: willi_h2o on Apr-24-13 5:45 PM (EST)
-- Last Updated: Apr-24-13 5:47 PM EST --

Paddlers buy gas, supplies,along with
breakfasts, lunches, and dinners;
in the communities
where they go for those day trips.

When gas hits $4.50 - $5.00 a gallon you'll see
more powerboat folks switching over to low cost canoe/kayak rec.

Michigan legislature better wake up and see the wave

 
 
  my opinion:
  Posted by: slushpaddler on Apr-25-13 11:46 AM (EST)
Whether one agrees with it or not, fishing is a revenus activity in the state of michigan. Fishing provides much more revenue than paddling.

State regulatory agencies regulate with this in mind. Building fishing and fish habitat structures is seen much differently than building whitewater features, for example. If you do not believe me, keep an eye on the City of Ann Arbor and the battle they will face to create whitewater features in an urban section of the Huron River.

I'm not saying I agree with any of this, but I am saying it's reality.

One can swim upstream and force adversarial relationships between user groups, roll the dice as the underdog, and see what happens. Or, one can form cooperative stewardships with different user groups, accept a certain amount of compromise, and work toward the goals of each group. guess which option will be the most successful in realizing the underdog's goals?

 
 
  The thing...
  Posted by: Al_A on Apr-25-13 11:42 PM (EST)
that anglers complain about is that they pay a more for their recreation than paddlers who don't fish pay. There are excise taxes on fishing equipment that raise the cost of it by something like 10%. There are fishing licenses to buy. That money goes to the state fish and game departments, and in many states the fish and game departments buy up the land and maintain public accesses with it that non-fishing paddlers happily use without paying anything for it.

As a paddling angler, I think it's absolutely stupid to have adversarial relationships between paddlers and anglers.
 
 
  LOOK HERE:
  Posted by: SuperTroll on Apr-22-13 4:15 PM (EST)
http://www.adventuresports.com/river/nors/us-law-menu.htm
 

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