What is a navigable waterway?

Don Shearer

Don Shearer

Active member
Hi,

I am hopeful that someone can direct me to some good and valid information on stream access law. More to the point what the stream access law is here in Washington State. If you look at the following pictures you can probably figure out why I am questioning the law. I have driven by this spot for about 10 years and I keep telling myself there is plenty of land to hunt in my state and I don’t have to hunt every inch of it, BUT the sign in the picture just annoys me, much like a small rock does when it gets into your hunting boot. Sometimes those rocks that fall into my boots are so small they don’t hurt but they are kind of just always on my mind and start to wear on my conscious until I have to take my boots off and get rid of the dam rock just so I can quit thinking about it. Well this sign has become like the little rock in my boot. I guess it isn’t so much that I cannot hunt the piece of water, but that if it is within my rights to hunt the piece of land that I am being kept out by an annoying sign then I cannot deal with that.

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There have been a handful of times that I have had people try to run me off of public land. I know this piece isn’t public but if the use of the water is public it amounts to the same thing. Right?

Any advice on where to look for information?

I did find this in the RCW code:
“RCW 91.08.020
Accessible lands defined.

Lands shall be deemed accessible to such waterway when by reason of their nearness to the same their value will be materially increased by the construction or deepening or widening of such waterway.”


Well that really clears things up. :)

My best,

Don Shearer

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sorry cant help ya wit da stone,for your area ,but up here in Nova Scotia only man made ponds are owned,all water ways are accesable,with salt water the property line is the average mean high water mark?? now in them flooded conditions which i have taken advantage of means at times alot of places to hunt.
shermie
 
In Michigan they call a river that has been used for commerce a navigable waterway..you can't hunt it without permission of the landowners on each side though. You can legally portage around obstructions that impede your way in the river. I guess you'd have to look at the riparian laws there to see what you can do. Sometimes states make deals with property owners when the state flood their land for the public good and the landowner retains rights for the surface of the water..happened to me and Bezubic one duck season...couldn't hunt a whole side of a lake..even if we didn't anchor.
 
Don:
You know your are opening a huge can of worms!! My folks had a cottage on the Mississippi with a great fishing wing dam off of their property (that dam is still called The Bosanny dam)people would come across our property to fish it. Checking with the Feds they said theat they (the public) had access to so many feet of shore line and across the property if it wasn't fenced. My dad fenced and gated the rear of the property next to the public road so they would go to unfenced property and walk the shore to the dam sometimes walking in our docked boats. That doesn't answer your question I realize but there are so many rules and regulations for each state and of course our great white father the FEDS regs.
wis boz
 
I'm kind of in the same boat uo here in NB. There is a place where we hunted last year that is an old DU project, 30 years old or so that is just off of a river that seasonally floods. I suspect that the land may have been only flooded in the spring / fall and somewhat dryer in the summer. However thats just my guess. Well anyway there is a man made berm with a flood gate that holds the flood water in there all season. You can float a small boat up and down the marsh no problem. One side of it butts up to a public road. Which in NB should have a 33 foot "right of way". There is a small strip of dry land 50 feet wide or so that seperates this marsh from the main river this land is posted. Eventually the marsh opens up into a rather large pond/ small lake. I checked the provincial property records and it shows the land is owned right up to the main river. Obviously those property lines were drawn up before the area was flooded. So in my mind if I launch a boat from the edge of the public road where I am still on the "right of way" and stay in my boat while I am on this marsh I shouldn't be trespassing as I haven't touched the bottom or shoreline. This marsh is about 2 kms long and 1 KM wide and the pond is about 25 acres or so, it's a fairly substantial peice of habitat. The far side of the pond is not posted so by NB law you can hunt there until the landowner posts it tells you otherwise. This kind of thing comes up all the time on the Miramichi river where land owners have riparian rights to the river bottom and can prevent anglers from walking on it or fishing, however the "right of passage" has always been there to travel the river system.

Bill G.
 
Don, Your best and only answer that matters will come from someone in an official capacity in your home state.

I can tell you how it is in Iowa. Back in the days before statehood, when Iowa was still a territory, the federal government required that the land be mapped and surveyed before statehood was granted. During and as a part of this initial platting/surveying, ALL of the waterways were to be labeled as navigable or non-navigable.

Well guess what, it didn't always get done. A lot of rivers and steams in Iowa that are capable of boat traffic never got labeled as being navigable. In their fine wisdom the state has determined that any waterway not labeled as navigable (even if it wasn't labeled either way) shall be considered non-navigable.

So here in Iowa, it doesn't matter if there is public access or not. It only matters how the waterway was labeled back in the original platting maps. What this means to us here in Iowa is that most of our rivers are open to public use, but the stream bed and banks are private property.
 
We've had this discussion before on the refuge forums.

http://www.refugeforums.com/refuge/showthread.php?t=308705

http://www.refugeforums.com/refuge/showthread.php?t=460655

As you can see, it can get very heated and many people will claim the laws are "confusing" or "ambiguous". They aren't. We even had a run-in with a warden last year and I had to set him straight. Know your rights and push for them....

The FED stuff that's in my pdf should apply to you (second link above; and remember that FED trumps states...), but here's a shortcut of links to check out:

http://www.americanwhitewater.org/

http://www.americanwhitewater.org/archive/article/966/

http://www.americanwhitewater.org/content/Regional_view_region_NW_

http://www.waterencyclopedia.com/Re-St/Rights-Public-Water.html

Good WA resource:

http://law.justia.com/washington/codes/title90/title90.html

http://law.justia.com/washington/codes/title79/79.02.html

http://law.justia.com/washington/codes/title77/77.55.011.html
 
Yep, you asked a hell of a question. If this was tidal, it would be easy. In almost all states (except a few New England states) the State owns from mean high tide seaward. While you cant necesarily cross private property to access state-owned water bottoms, once on it, you normally have the right to travel lateraly down the shoreline, fish, hunt, boat, etc..
Public trust docterine for non-tidal waters is much more complicated and varies by state to state. And it varies if the waterbody is natural or man-made. In Alabama, on navigable waters, the adjacent riparian owners own to mean low water. The public has the right to hunt, fish, anchor and travel below that. The big question is what is navigable? There is a list of navigable waters maintained by our agency. Also, waters that are "navigable in fact" are also considerd navigable water. In other words, if you can float a boat down it, it's navigable. Others waters have been litigated and a determination made. Still others, a determination has never been made and the question is open.
The bottom line is that if you want a proper determination, you need to contact the state agency in your state which is responsible for managing your state-owned submerged lands and for making navigability determinations and aske them specifically about it.
 
Hi,

Thank you all for the reply. I now have a starting point to work from when asking the various state agencies my question regarding public access on Washington waterways.

My best,


Don Shearer
 
Hi Don,

We have the same thing down here in Oregon all the time. Here's what I do know.....if the waterway in question does not have a history of being used by boaters and or is too shallow for safe navigation (as in what your photo shows) it can be deemed a NON-NAVIGATABLE waterway, especially if ot runs thru provate property. Most likely the owner of this piece has had some problems in the past with trespassers on this waterway and has gone to the effort of posting his property with these signs.

A call to the Game Warden in that area will most likely answer your questions about this water area.

Here on the Applegate River where I live, the landowners on either side own the land to the middle of the river, but not the water, it belongs to the State. You may raft or boat down the Applegate River, but you cannot get out of your boat unless you have prior permission to be on that property.

Dave
 
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