Defining Navigable Streams In Georgia

Editorial-Opinion November 2023

Daryl Kirby | October 27, 2023

About the only thing more difficult than pronouncing the word navigable is defining it.

But define it we might.

Lawsuits, unprecedented last-minute midnight action at the capitol, and now public meetings across the state conducted by a who’s-who of legislative  heavyweights… all are currents pulling a creaky old wooden raft toward treacherous waters. Those waters hide rocky shoals that threaten to splinter the raft and send its occupants—anglers and landowners—into the water. Whether they land in the navigable stretch of the stream or in the non-navigable stretch could undermine centuries of public fishing access or centuries of land ownership and private property rights.

With all good intent and purpose, actions have consequences…

The issue of public fishing on streams and rivers is coded in Georgia law by whether the waterway is navigable. The epicenter might be Yellow Jacket Shoals on the Flint River, but now we have north Georgia landowners quaking in their waders about the prospect of amazing private stretches of pristine trophy trout waters being compared to the navigability of middle Georgia shoals.

And we have anglers worried they could lose out on fishing access, ranging from those who treasure the ribbons of blackwater in south Georgia to streams and rivers across Georgia where public fishing has traditionally been allowed and the waters considered public. But some of these waters are where everyone knows it is impossible to float—much less navigate—without getting your feet wet from time to time to pull a canoe or kayak over and around shoals or logjams.

Georgia law currently says, “the term ‘navigable steam’ means a stream which is capable of transporting boats loaded with freight in the regular course of trade either for the whole or a part of the year. The mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable.” The law also says “the rights of the owner of lands which are adjacent to navigable streams extend to the low-water mark in the bed of the stream.” For non-navigable streams, the landowner’s rights extend to the centerline of the stream bed with exclusive fishing rights, or if they own property on both sides of the waterway, the entire stream bed.”

Senate Bill 115 was passed at the last minute—bypassing standard legislative protocols—with the purpose of protecting public access to Yellow Jacket Shoals and guard against future lawsuits that might take away fishing rights to streams and rivers. That action along with the House Study Committee that’s touring the state holding public meetings about fishing access has energized landowners who want to protect their private property rights. If you can float a canoe down a waterway, is it open to the public for fishing—and hunting? Private landowners across the state say not a chance. This is still America, where you can, at least for the moment, work hard and get to a place in life where you can buy your dream sliver of land—and it’s yours.

What’s the defining line?

Several speakers at the north Georgia meetings cited the personal, unique aspect of north Georgia streams. Do you define navigable based on a geographic line? Good luck with that holding up in court.

The term CFS—stream flow rated in cubic feet per second—has been thrown around lately. If you set it at average stream flow, imagine the impacts. How many currently private creeks and small rivers would that open to public access? The north Georgia landowners on the Soque River realize this, and that’s why they showed up for the House Study Committee meeting in Clarkesville a few weeks ago.

If the state redefines what’s navigable and what is not, one way or the other it could have dramatic impacts on sportsmen and landowners. Maybe any new standard begins with traditional use. Past that, any change should face stringent criteria for changing a stream or river’s status when it comes to navigability.

A speaker in Blue Ridge said it well… “We’ve heard discussion that we need clarification. That means a change in the law. You don’t clarify law without changing something.”

What the heck is going to happen? What will change? Unintended consequences and slippery slopes… or in this case, slippery river rocks.

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