River Law: Fact and Fiction
|Common misconceptions about river law:||What the U.S. Supreme Court has actually said the law is:|
|Misconception: A court, or government agency, designates rivers as legally navigable. If a river isn't officially designated, it isn't legally navigable.||Fact: The U.S. Supreme Court has repeatedly ruled that "rivers that are anvigable 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.|
|Misconception: Only certain large rivers, capable of navigation by motorized ships carrying commercial freight, are legally navigable. Other rivers, where they flow through private land, belong to the surrounding landowners. The public may be allowed to run such rivers in some cases, but may not touch the banks.||Fact: Even rivers that are physically navigable only by canoe, kayak, and raft are still legally navigable. (The courts have also ruled that commercial recreational river trips qualify as commerce). Because they are legally navigable, such rivers are held in trust for the public by the states, for navigation, recreation, and fisheries. The land along them is public land up to the ordinary high water mark (which can be quite a distance from the water--it's the land where the vegetation and soil show the effects of water.) The public can use this land for walking, fishing, resting, camping, and other non-destructive visits.|
|Misconception: If a landowner's property deed includes the land around a river, and makes no mention of the river being public, then the river is private.||Fact: Public ownership of physically navigable rivers, including the land up to the ordinary high water mark, pre-dates property deeds. What the property deed says or doesn't say about the river is irrelevant.|
|Misconception: Rivers that flow through federal land (National Parks, National Forests, etc.) belong to federal agencies, whose "river management plans" can determine when, and if, navigation and recreation will be allowed.||Fact: Physically navigable rivers that flow through federal lands are still held in trust for the public by the states. River management plans must preserve the public's paramount rights to navigate and recreate on these rivers.|
|Misconception: Since the state "owns" the river and the land up to the ordinary high water mark, the state can sell or give away the river to private owners for various projects or private uses.||Fact: The state does not actually own the river, it holds it in trust for the public for navigation, recreation, and fisheries. The state is obligated to preserve the river for these public benefits.|
|Misconception: Public ownership of physically navigable rivers varies from state to state, as do the public's rights to canoe, kayak, raft, walk along, and otherwise visit such rivers.||Fact: Public ownership of physically navigable rivers is the same in all states. It's a U.S. Supreme Court standard, and it includes those rivers that are physically navigabale by canoe, kayak, and raft. The public's right to visit additional non-navigable streams (those too small for even canoes, kayaks, and rafts) does vary from state to state, but this variation only applies to those small streams.|
The National Rivers Website is made possible by the generosity of the members of the National Organization for Rivers (NORS.) The material in this section is a result of the NORS River Law Project. To help this work continue, start or extend your membership by going to NORS memberships. Thank you for your support!
NORS was founded in 1978.
For more information on your legal rights to canoe, kayak, raft, fish, picnic, camp, walk along, and otherwise visit rivers, see the other items on the River Law menu.
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