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FAQs about federal law regarding public ownership, use, and conservation of rivers
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Frequently Asked Questions
Following are answers to FAQs about federal law regarding public ownership, use, and conservation of rivers. Note that this is a general discussion, and is not a substitute for legal counsel on a specific river issue! State law in a particular state may modify some of the following. The following information, which is part of a continuing project of research and publishing about river law, is made possible by the generosity of the members of the National Organization for Rivers.
For more information check out the book, Public Rights on Rivers, which is available for NOR members.
Which rivers are owned by the public?
The U.S. Supreme Court has held that the bed and banks under all rivers, lakes, and streams that are navigable, for title purposes, are owned by the states, held in trust for the public. Title in this context means ownership. This public-trust ownership extends up to the ordinary high water line, (or ordinary high water mark,) encompassing what is commonly referred to as the submerged and submersible land, as opposed to the upland. This type of navigability is called title navigability.
How did the public come to own these rivers and lands?
The Supreme Court has held that navigable rivers, lakes, and streams have been public since ancient times in all civilized societies, and that in colonial America they were held for the public by the King of England. When the original thirteen states took sovereignty of their land from the British after the American Revolution, those states became owners of the land underlying navigable waters. States that subsequently entered the Union have the same ownership rights as the original thirteen states under the Equal Footing Doctrine, and became owners of the land underlying navigable waters as of the date of statehood.
What does navigable, for title purposes, mean?
Through various court cases, federal courts have articulated the following test, which is known as the federal test of navigability for title purposes:
- The waterway must be capable of or susceptible to use as a highway for the transportation of people or goods
- The waterway must be usable for transportation conducted in customary modes of trade and travel on water
- Waters must be navigable in their natural and ordinary condition
- Navigability is determined as of the date of statehood
The courts have determined that the use or potential for use by almost any type of watercraft is sufficient to determine this type of navigability. The use did not have to occur at the time of statehood; it is enough that it could have occurred (i.e., susceptibility.) Modern-day usefulness of a river that has not been artificially modified helps prove navigability for purposes of state title, as do historical uses that no longer exist, such as log drives.
Note that this "federal test" is not found in any one Supreme Court document or other government publication; it is just the sum of the relevant passages and phrases in various court decisions. Congress has never passed legislation defining navigability for title purposes, so the court decisions are the applicable law on the subject.
Are there other legal definitions of the word navigable, and other legal tests of navigability?
Yes! The U.S. Army Corps of Engineers uses the term "navigable waters" which stems from the Rivers and Harbors Act of 1899. This Act, along with associated federal regulations, determines the Corps' jurisdiction over the alteration of waterways. Similar regulations direct the U.S. Coast Guard. "Navigable waters" are also defined in the Clean Water Act as areas subject to the Corps' regulatory authority over filling in waterways. State government agencies also use the term "navigable waters" in regulations relating to boating safety. Federal courts use the term "navigable" in cases involving Admiralty Law and the Commerce Clause of the U.S. Constitution.
None of these other definitions of navigable is the same as the definition federal courts use to determine navigability for title purposes. They may include a narrower range of waterways in some cases and a broader range in others. This has caused much confusion, such as the common misconception that only a few particularly large rivers are legally navigable. The fact is that even rivers and streams that can be navigated only by small watercraft and logs are still navigable for title purposes, even if they are not navigable for other legal purposes.
How can you measure or scientifically evaluate a river to know if it is navigable for title purposes, and therefore publicly owned?
You can't. The federal test of navigability for title purposes does not include any measurements or minimum requirements regarding the width, depth, or gradient of the river, or the amount of water in the river, or the size of watercraft that can navigate the river. There are no scientific criteria involved. It is just a usability test, derived from various court decisions, as described above. It rests on the question of whether people can use the river for transportation in ordinary watercraft, even small watercraft, and the related question of whether people did use it or could have used it at the time of statehood.
What size of watercraft must be able to navigate a river to make it navigable for title purposes?
Federal courts have held that even those rivers that are navigable only by small, non-motorized watercraft are still navigable for title purposes. (Remember that other requirements may apply to navigability for other legal matters, such as cases involving the "commerce clause" of the U.S. Constitution.)
Navigability for title purposes originated with early American court decisions that predate the invention of motors. These decisions in turn refer to public use of rivers under earlier British law and under the laws of ancient civilizations. Title navigability depends on a river's physical navigability at the time of statehood. In frontier America rivers were frequented by fur trappers in canoes. Lewis and Clark, the famous explorers, traveled by canoe, as did thousands of other settlers and frontier traders.
As areas of the country became more populated with settlers, another common use for rivers was to float logs downstream from forests to lumber mills. This was often done through major rapids and waterfalls that still challenge expert canoeists and kayakers today.
Early American court decisions concluded that navigable rivers were those rivers that could be used "as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water." Subsequent decisions confirmed that navigation by small watercraft such as those used by fur trappers and explorers, as well as floating logs downstream, qualified as commerce, trade, and travel, for purposes of title navigability.
In recent decades, interests opposed to public ownership of rivers have argued that guided recreational trips on rivers should not qualify as commerce for title navigability purposes. Again, the courts have specifically rejected this. Today, commercial river trips for recreation are a major economic activity for numerous smaller towns around the nation. Trips using inflated rafts are perhaps the best known, but commercial trips using individual canoes and kayaks are also common. Modern plastic canoes and kayaks require less care and maintenance than those used in the past by fur trappers and Eskimos, but otherwise they are about the same. This type of navigation, although newly popular, is essentially hundreds, or thousands, of years old.
Interests opposed to public ownership of rivers have also tried other arguments to narrow the definition of "commerce" for title navigability purposes. The courts have consistently rejected these "narrow definitions of commerce," and have instead opted for a broad definition. Outside of the courtroom, the word "commerce" refers to the exchange of goods, but it also refers to traffic of any kind, including communication and social interaction between individuals, as in "the commerce of ideas." With a broad definition, river "commerce" would include any traffic on a river, including an individual canoeist paddling down a river to admire the scenery. The courts have not supported a narrower definition relating to title navigability.
Do shallows, rapids, and other obstacles make a river non-navigable for title purposes?
No. The courts make no requirements that a river be uniformly deep, or flat, or that navigation be practical going upstream as well as downstream. As already mentioned in the previous paragraphs, the presence of rapids, even numerous rapids and waterfalls, does not disqualify a river.
Recall that the courts view navigability and public-trust ownership as having originated in ancient civilizations and in America prior to the twentieth century. In their natural condition, all rivers have shallow areas and obstacles, such as gravel bars, sand bars, rocks, logjams, etc. People unfamiliar with river navigation tend to assume that a river's depth is fairly uniform, but in fact flowing water inherently removes sand, gravel, and debris from some areas and deposits it in others, resulting in great fluctuations in depth, from very shallow to very deep. Even the mighty Mississippi, perhaps America's best-known navigable river, was historically full of hazards and shallows, requiring flat-bottomed boats and constant checking for depth. The pen name of the famous American author, Mark Twain, was originally a frequent expression from one riverboat crewman to another, to report a depth of two fathoms. (Twelve feet.) Even with such checking, riverboats frequently ran aground on submerged sand and gravel bars.
One of the most famous navigable rivers of the world, the Nile, is also full of shallow areas in its natural condition. Historically it was the key resource of the ancient civilization of Egypt. Today it is navigated by small ships that carry overnight passengers and have dining rooms, sleeping rooms, etc. Some of these small ships are two stories high but are cleverly designed to only extend nine inches below the surface of the water. Nevertheless, they still occasionally run aground on the shifting sand and gravel bars. Freeing them can take many hours. Such is the inherent nature of river navigation.
People who navigate rivers, as well as people who discuss navigability law, wish that rivers were uniformly deep, but nature refuses to cooperate. Riverside landowners, government agencies, and other people affected by navigability law often assume that to qualify as "navigable" a river would have to be reasonably deep, so they keep looking for some objective criteria for navigability, such as a certain depth measurement. Unfortunately the federal test of title navigability contains no such criteria. In effect it is not a river test as much as it is a people test: It rests on the question of whether members of the public find the river--in its natural, cantankerous condition, as it was at the time of statehood--useful for navigation, despite having to push their boats off of its sand bars and carry them around its waterfalls. If the answer is yes, the river is navigable for title purposes and is public land up to the ordinary high water line.
But don't really big waterfalls, or really big rapids, make a river non-navigable for title purposes?
No, they don't. Many thousands of people have admired and felt the power of America's most famous waterfall, Niagara Falls, from the pool of water at the base of the falls, on board the Maid of the Mist, a tour boat. The entire excursion took place within this single pool of water, confined by the falls on the upstream side and large rapids on the downstream side. Yet the boat operated for many years, charging passengers for the trip in a plainly commercial fashion. The Maid of the Mist is an outstanding example of navigation on a very limited stretch of river.
Few people attempt to run the actual falls of Niagara Falls, and local authorities prohibit this (the offender is often dead by the time he is apprehended.) The rapids located just downstream from the falls and the pool of water are perhaps the largest in North America. The river in this section often flows at over 100,000 cubic feet per second, more than most rivers ever reach. Courts found this section navigable for title purposes as well.
What if the river is only physically navigable during the wet season of the year?
It still qualifies as navigable for title purposes. But a normally dry creek bed or "wash" that is only temporarily navigable during extreme weather does not qualify. (If it's normally dry because of upstream dams, then it does qualify. The legal test is based on the river's natural condition.)
Does it matter whether the waterway is called a "river" or a "creek" on maps and signs?
No. Some "rivers" are not physically navigable in even the smallest watercraft, and some "creeks" are large enough for fair-sized boats carrying several passengers. The name of the waterway has no legal significance.
So how do you tell the difference between a navigable river and a non-navigable river, for title purposes?
In ancient civilizations, as well as in early America, navigability has never been a technical concept. As the U.S. Supreme Court says, "Rivers that are navigable in fact are navigable in law." The intent of the courts has been that the difference between navigable and non-navigable rivers should be a practical matter that can be understood by ordinary people such as settlers, fur trappers, and riverside landowners. The courts have confirmed that even logs and small boats such as canoes, kayaks, and rafts qualify as navigation for title purposes. Therefore a navigable river is one on which you can use a small boat, and a non-navigable river is one on which you can't.
This difference between the two has not been discussed in detail in court decisions, but it is apparent to anyone who will take the time to look carefully. A river that is small yet navigable may contain many rocks and shallow spots, but there is still a route down it, a small channel that is passable in small boats. This route may be left, right, or center, and it may occasionally be interrupted altogether, but on most of the section of river there is a route.
The bed of a non-navigable river or creek, on the other hand, is an undifferentiated jumble of rocks. In steeper terrain, the water is spilling over the rocks in a sort of cascade, while in flatter terrain, the water is threading its way between the rocks. In either case, there is no route down it; it is equally impassable on the left, right, or center. A key difference between the two is that higher water flows on a navigable river or creek make it easier to navigate, by making the route down it wider and deeper. (Although very high flows may make it dangerous to navigate.) But higher flows on a non-navigable river or creek do not help navigation much--they just bring more water spilling over or around the rocks, making more noise and spray, but still not creating any distinguishable route. On a non-navigable river or creek, even a skilled boater using a good canoe or kayak would be continuously blocked by some combination of rocks, logs, and overhanging brush from the banks. (This combination of blockages varies depending on the local terrain and vegetation.) In other words, it is simply not worth it from the boater's point of view. It may be nice to walk along and admire, but not to boat. It may have occasional pools where fish hide under the ledges, and you could cast a line. If you own the land through which it flows, (or you are a guest of the landowner,) you can walk along it, admire it, or cast a line into it, in a state of privacy. It is, simply stated, "not navigable in fact."
Not all rivers are readily categorized--there are some rivers that are in a "gray area" between navigable and non-navigable. However, river disputes seldom involve those rivers. Instead, they usually involve rivers that are obviously navigable by small boats, and are in fact regularly navigated. For example, a farmer or rancher may erect a fence across a river and expect boaters coming down the river to terminate their trip at that point and leave the river, even though the river is every bit as navigable downstream from the fence as it is upstream. So, in actual practice, the "gray area" between navigable and non-navigable rivers is seldom the problem.
What if the current property owner's deed reads to the middle of a river, or seems to surround and include the river?
If the physical characteristics of the river are such that it meets the federal test of title navigability, it is public land up to the ordinary high water line. Since a deed can only convey interests actually owned by the seller, and since the bed and banks of all navigable rivers passed to the states at the time of statehood, it is likely that the state is the true owner. The state's ownership is a "prior existing right" and is frequently mentioned as such on deeds. Somewhere along the chain of property transactions, a deed may have been changed to include the riverbed. Unfortunately, if this happened it was likely done incorrectly.
In some states the property owner next to a river may have certain rights, such as the right to construct a small dock that extends onto the public land at the edge of the river.
Note that a determination that a river is navigable for title purposes is not a "taking" of private property under the U.S. Constitution-the river and the land along it were public land all along. A "taking" can only occur if the land in question was clearly privately owned in the first place.
Who decides which rivers are navigable for title purposes?
The U.S. Supreme Court has repeatedly ruled that "rivers that are navigable in fact are navigable in law." If a river is physically navigable, it is legally navigable. No court or agency has to designate it as such.
If there is a dispute about whether a river is navigable for title purposes, only the federal courts can ultimately decide it, and that is a lengthy, expensive process. The courts only consider a river when a legal case arises-they don't go around rating rivers just to help get things organized. Only a few rivers in the entire nation have had court determinations. The rest of the rivers which are "navigable in fact", i.e., physically navigable in small watercraft per the federal test, are public land up to the ordinary high water line, even though most of them do not have any official designation as such.
Can states create their own definition of navigability for title purposes?
No, it's a federal test, as explained earlier. State legislatures cannot create their own definitions of navigability for title purposes, nor can they direct state agencies to create their own definitions.
However, state legislatures and agencies can decide certain other river use issues, as described later in this publication. Federal courts have also recognized that state courts have concurrent jurisdiction to apply the federal test.
Obviously neither the federal courts nor the state courts will ever have time to consider every river in the nation. So state government agencies or legislatures can make a provisional determination based on whether the river is physically usable as described in the federal test. If a state agency's determination accurately reflects both the physical characteristics of the river and the legal standards of the federal test, then the federal courts would presumably concur.
But keep in mind that rivers that are physically navigable per the federal test are public land even with no state determination. Conversely, if a river is navigable in fact per the federal test, but a state agency or state legislature declares it not navigable and not public land, such a declaration must be regarded as erroneous.
Can states sell or give away rivers, or riverside land?
Federal courts have held that the state does not simply own the river and the riverside land, it holds it "in trust for the public." These court decisions, taken together, are known as the Public Trust Doctrine. The state holds the resources in trust for the benefit of all the people. The general public has a right to fully enjoy these resources for a wide variety of public uses including navigation, recreation, and fisheries. The state cannot divest itself of these public-trust ownership.
The state can sell or lease pieces of land along a river, such as for public or private docks, etc., but not the whole river. Such transactions must be beneficial for use of the waterway. They cannot interfere with public use of the overall waterway.
- Which rivers are owned by the public?
- How did the public come to own these rivers and lands?
- What does navigable, for title purposes, mean?
- Are there other legal definitions of the word navigable, and other legal tests of navigability?
- How can you measure or scientifically evaluate a river to know if it is navigable for title purposes, and therefore publicly owned?
- What size of watercraft must be able to navigate a river to make it navigable for title purposes?
- Do shallows, rapids, and other obstacles make a river non-navigable for title purposes?
- But don't really big waterfalls, or really big rapids, make a river non-navigable for title purposes?
- What if the river is only physically navigable during the wet season of the year?
- Does it matter whether the waterway is called a "river" or a "creek" on maps and signs?
- So how do you tell the difference between a navigable river and a non-navigable river, for title purposes?
- What if the current property owner's deed reads to the middle of a river, or seems to surround and include the river?
- Who decides which rivers are navigable for title purposes?
- Can states create their own definition of navigability for title purposes?
- Can states sell or give away rivers, or riverside land?
- Where is the ordinary high water line?
- What can the public do on rivers that are navigable for title purposes?
- What public activities can government agencies lawfully restrict?
- Can state governments expand public rights to visit rivers?
- What about walking briefly on private land while in the process of navigating a river?
- What about waterfalls? Can boaters run them? Can they walk around them?
- What about getting to and from the river?
- What about motors on rivers?
- What about commercial river trips?
- What about mining in river beds, for gold, gravel, etc.?
- What about construction and bulldozing along a river?
- What about river pollution?
- What about ownership of the water itself?
- How do I determine if a certain river is public, and what public uses should be allowed on it?
- What about river navigability committees and commissions?
- What happens when riverside landowners go to court?
- What happens when river recreationists go to court?