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NOR is the organization that focuses on achieving public-trust ownership of rivers, conserving rivers through public-trust ownership, and ensuring the public's legal rights to enjoy rivers
New Book, New Website!
Here we are, coming to the last few weeks of summer. We have been working hard to make lots of organizational changes this summer. From starting social media (Facebook, Twitter, Google+), to recreating a website, and everything in between, we can’t express how excited we are to have our organization up to speed with current issues and needs. The long awaited book, Public Rights on Rivers, is a big highlight with the new website. Many of you have waited years for this book, and we hope it clearly explains public rights and gives you a resource in your river encounters. Enjoy the new website, and the resources it offers you!
There have been several issues and questions about river law this summer, as usual. We have received many questions, and this specific question seemed like one many people could relate to. There are many rivers that are dammed that create reservoirs. Should these reservoirs be open for public recreation, if the water comes from public rivers? Or can the organization that owns the watershed property and manages the dam and water usage legally restrict non-destructive, non-commercial recreational actives on the reservoir?
The specific example that sparked this question was from the Patuxent River in Maryland. It flows into the Triadelphia and Rocky Gorge Reservoirs, which are managed by the Washington Suburban Sanitary Commission. They state that a paid permit is required for recreational boating on the reservoir, even though it could be reached by putting in upstream and floating down to it.
So, does "navigable river" in the context of public usage rights not apply to a drinking water reservoir, or is the WSSC permit requirement in violation of the law?
Here’s our reply. Navigable rivers are permanently held in trust for the public, for navigation, recreation, and fishing. The water itself is permanently owned by the public. Navigable rivers must be forever free to the public, without charge for navigation, pursuant to the first act of the first Congress of the United States, and subsequent U.S. Supreme Court decisions. This public trust can never be terminated. A government permit to build a dam allows the permit-holder to modify the navigable river by building the dam, but it does not transfer ownership of the water itself. It does not terminate public rights to navigate on the river and the resulting reservoir, without charge, including setting foot on the strip of land along the edge of the water, in connection with navigation and fishing on the water. Reservoir operators typically own the upland around the reservoir. They can charge for public activities on that upland, such as hiking and hunting. In this case, it appears that WSSC has lumped hiking and hunting, on the privately-owned upland, together with navigation and fishing, on the publicly-owned water. The lawful solution would be to charge fees only for hiking and hunting on the privately-owned upland, not for navigation and fishing on the publicly-owned waters. The relevant laws and Supreme Court decisions are cited on our present web site, and are more thoroughly cited in our new book, Public Rights on Rivers.
We also sent a copy of our reply to this question to the WSSC. So there you have it, a question many recreational users might have who want to recreate on a reservoir. Stay connected with us to read about more river law discussion!
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