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.
|Table of Contents|
|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.
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)
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.
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.
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?
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.
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.
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.
some rivers private?|
Posted by: melenas on Apr-19-13 1:10 PM (EST)
As people have said, navigable streams are public,
Posted by: timothy585 on Apr-19-13 1:23 PM (EST)
Lots of insight and knowledge posted in your responses. Thanks!
Posted by: kayamedic on Apr-19-13 5:03 PM (EST)
Check out the Shingle Shanty case in NY State.
You have the Spanish grant issue wrong|
Posted by: Reefmonkey on Apr-22-13 5:47 PM (EST)
The issues with Devils and Frio were not|
Posted by: Reefmonkey on Apr-22-13 6:01 PM (EST)
Posted by: jimyaker on Apr-19-13 3:58 PM (EST)
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.
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 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.
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".
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.
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: old_user 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.
Listen to Glenn|
Posted by: rpg51 on Apr-21-13 8:18 AM (EST)
Well we aren't wanting him to|
Posted by: kayamedic on Apr-21-13 8:42 AM (EST)
re present his WHOLE thesis.
Yes, fighting for thousands of years|
Posted by: Glenn_MacGrady on Apr-22-13 1:35 AM (EST)
Posted by: rikjohnson on Apr-22-13 1:05 PM (EST)
ANY navigable waterway is public!
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,
Posted by: slushpaddler on Apr-22-13 1:31 PM (EST)
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.
That's the way it is in most states|
Posted by: Reefmonkey on Apr-23-13 3:15 PM (EST)
Government agencies and tree removal?|
Posted by: Guideboatguy on Apr-23-13 10:57 PM (EST)
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.
Woody Debris Removal|
Posted by: willi_h2o on Apr-24-13 12:26 AM (EST)
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.
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.
It's a stretch that happens quite a lot |
Posted by: Reefmonkey on Apr-24-13 5:46 PM (EST)
That makes sense|
Posted by: guideboatguy on Apr-24-13 6:34 PM (EST)
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.
Posted by: guideboatguy on Apr-24-13 9:36 PM (EST)
No, what happened is you chose |
Posted by: reefmonkey on Apr-25-13 3:47 AM (EST)
I WAS confused|
Posted by: Guideboatguy on Apr-25-13 9:03 AM (EST)
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.
I'd debate USACE mgm't plans!|
Posted by: slushpaddler on Apr-25-13 11:54 AM (EST)
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.
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!
Posted by: willi_h2o on Apr-24-13 2:44 PM (EST)
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.
Posted by: willi_h2o on Apr-24-13 5:45 PM (EST)
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.
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.
Posted by: old_user on Apr-22-13 4:15 PM (EST)