Fishing, boating passage, and navigability in Georgia waters 2023-10-12

Update 2023-12-31: Fishing Access in Georgia: House Committee Report 2023-12-01.

What waterways are navigable? How does navigability apply to fishing rights and private ownership of waterways? What about right of passage? How does the Georgia state constitutional Right to Hunt and Fish apply? And what about GA-DNR boat ramps?

[Access, Navigable, Boat Ramps]
Access, Navigable, Boat Ramps

This controversy started with a lawsuit about the Flint River, but it has already spread to other rivers and creeks, and sooner or later will affect the Suwannee River Basin.

The Chair of the Georgia House Study Committee on the subject is Rep. James Burchett, District 176, which includes southwest Coffee, Atkinson, Lanier, and northeast Lowndes Counties, all in the Suwannee River Basin. Plus he is the County Attorney for Brooks County.

If you know him, maybe you’d like to talk to him about the importance of river passage and public fishing rights. As he is reported to have said, “The intention is to find clarity. The property owners and fishermen all want to know, where can we fish and where can we not?”

[Committee Chair Rep. James Burchett]
Committee Chair Rep. James Burchett

You may recall WWALS helped pass Georgia SB 115, hailed as Public right to fish saved in final seconds of General Assembly session, by Dave Williams, GPB News, April 14, 2023.

[SB 115 - 0.C.G.A. 44-8-5(c) The General Assembly finds that the state procured ownership of all navigable stream beds within its jurisdiction upon statehood and, as sovereign, is trustee of its peoples' rights to use and enjoy all navigable streams capable of use for fishing, hunting, passage, navigation, commerce, and transportation, pursuant to the common law public trust doctrine.]
SB 115 – 0.C.G.A. 44-8-5(c) The General Assembly finds that the state procured ownership of all navigable stream beds within its jurisdiction upon statehood and, as sovereign, is trustee of its peoples’ rights to use and enjoy all navigable streams capable of use for fishing, hunting, passage, navigation, commerce, and transportation, pursuant to the common law public trust doctrine.

That bill dealt with the conditions of the original Flint River lawsuit, but it opened several cans of worms.

It says the state “is trustee of its peoples’ rights to use and enjoy all navigable streams capable of use for fishing, hunting, passage, navigation, commerce, and transportation, pursuant to the common law public trust doctrine.”

But what streams are navigable? The U.S. Army Corps of Engineers has two definitions. Federal and state definitions do not agree. Georgia has several tests of navigability, plus a de facto Department of Natural Resources definition.

The public trust doctrine was only mentioned once before in Georgia law. What is Georgia’s version of that doctrine, and how does it apply?

These questions are being discussed in a series of meetings of a House Study Committee on Fishing Access to Freshwater Resources, authorized by HR 519.

[Fishing Access to Freshwater Resources Study Committee 10.12.23 Part 1]
Fishing Access to Freshwater Resources Study Committee 10.12.23 Part 1

The first meeting on October 4th was apparently quite interesting. The second meeting on October 12th drew more people, and presentations by the Southern Environmental Law Center and the Georgia Department of Natural Resources, as well as talks by many people including Mike Worley, President of the Georgia Wildlife Federation. Two more committee meetings are planned, with a report to the House by December 1st.

SELC slide 25 says, “ The overwhelming majority of states (~40) have expressly adopted the public trust doctrine to protect public uses of waterways.”

Well, now it’s time for Georgia to make up its mind. So far, according to SELC slide 28,

Public Trust Doctrine in Georgia Cases

  • No discussion of the public trust doctrine in caselaw for navigable, non-tidal streams.
    • For instance, in Parker v. Durham, there was no discussion of whether the state owned the beds of navigable waters in trust for the public at statehood and what that meant.
  • But, Georgia caselaw has recognized a public right of passage on all rivers and streams that are susceptible of use for a common passage. E.g., Young v. Harrison.

[Public Trust Doctrine in Georgia Cases]
Public Trust Doctrine in Georgia Cases

There’s a third can of worms: is public right of passage the relevant issue, rather than navigability?

And a fourth can of worms, the Georgia Constitutional Right to Hunt and Fish, “The tradition of fishing and hunting and the taking of fish and wildlife shall be preserved for the people and shall be managed by law and regulation for the public good.” Ga. Const. art. III, § ¶ VI

[Right to Hunt and Fish, GEORGIA CONSTITUTION: Paragraph XXVIII]
Right to Hunt and Fish, GEORGIA CONSTITUTION: Paragraph XXVIII

Oh, and can of worms number 5, see SELC slide 29, “DNR uses public funds to build and maintain boat ramps and to stock fish.”

And see GA-DNR slide 10, “Streams with state-owned boat ramps are open for public use.”

[South Georgia Rivers and Access Points]
South Georgia Rivers and Access Points

That GA-DNR map seems a bit lacking. There are two public boat ramps on Reed Bingham State Park Lake, which are shown on GA-DNR’s interactive map of boat ramps, plus there is another upstream on the Little River: Red Roberts Landing. So apparently from there the Little River all the way to the Withlacoochee should be navigable. See the WWALS table of public access points on the Withlacoochee and Little Rivers.

[WLRWT-Sign.pdf]
WLRWT-Sign.pdf

On the Withlacoochee River, Langdale Park Boat Ramp in the north of Valdosta does not seem to be depicted, and there are several public access points upstream from there, three of them on state highway rights of way, so presumably owned by the state of Georgia.

For the Alapaha River, the map seems to depict Berrien Beach, Lakeland, and Statenville Boat Ramps. But the land under Statenville Boat Ramp is not owned by the state, and not by Echols County, either. Yet upstream Sheboggy Boat Ramp at GA 82 was upgraded by Berrien County, and is owned by either the county or the state on the highway right of way. See the WWALS table of public access points on the Alapaha River.

[ARWT-Sign.pdf]
ARWT-Sign.pdf

The Suwannee River is probably the least likely to be contested. The Army Corps of Engineers considers it navigable. The U.S. government owns the Okefenokee National Wildlife Refuge, and there are GA-DNR boat ramps at Stephen C. Foster State Park, the Suwannee River Sill, and Fargo. See the WWALS table of public access points on the Suwannee River.

[SRWT Wide]
SRWT Wide

See also the WWALS map of all public boating access points in the Suwannee River Basin in Georgia and Florida.

[Suwannee River Basin, landings, logos]
Suwannee River Basin, landings, logos

Naturally, we are seeing apprehension like this, North Georgia property owners warn expanded public fishing would hurt fly-fishing industry, by Dave Williams, Capitol Beat News Service, October 12, 2023. But it is not clear anybody is talking about expanding public fishing rights, rather preventing decreasing public fishing rights. And, as I hear was acknowledged in the most recent study committee meeting, cold north Georgia streams are quit a bit different from warn south Georgia blackwater streams. Not that that has stopped an attempt to block access to the Seventeen Mile River, which is a tributary of the Satilla River.

So, please read up, maybe watch the videos, and I hope you will help persuade the Study Committee and the Georgia House that we all need public access to our rivers.

Georgia S.B. 115

The text of SB 115 was completely replaced on the last day, so you have to look at Latest bill text (Enrolled) [PDF]:

Senate Bill 115
By: Senators McLaurin of the 14th, Dugan of the 30th, Kennedy of the 18th, Moore of the 53rd, Dolezal of the 27th and others

AS PASSED

A BILL TO BE ENTITLED
AN ACT
1 To amend Code Section 44-8-5 of the Official Code of Georgia Annotated, relating to rights
2 of adjoining landowners in navigable streams, so as to provide for intent, title to, and public
3 use of navigable waters; to provide for related matters; to repeal conflicting laws; and for
4 other purposes.

5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

6 SECTION 1.
7 Code Section 44-8-5 of the Official Code of Georgia Annotated, relating to rights of
8 adjoining landowners in navigable streams, is amended by adding a new subsection to read
9 as follows:
10 “(c) The General Assembly finds that the state procured ownership of all navigable stream
11 beds within its jurisdiction upon statehood and, as sovereign, is trustee of its peoples’ rights
12 to use and enjoy all navigable streams capable of use for fishing, hunting, passage,
13 navigation, commerce, and transportation, pursuant to the common law public trust
14 doctrine. The state continues to hold title to all such stream beds, except where title in a
15 private party originates from a valid Crown or state grant before 1863. The General
16 Assembly further finds that the public retained the aforementioned rights under such
17 doctrine even where private title to beds originates from a valid grant.”

18 SECTION 2. 19 All laws and parts of laws in conflict with this Act are repealed.

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

You can help with clean, swimmable, fishable, drinkable, water in the 10,000-square-mile Suwannee River Basin in Florida and Georgia by becoming a WWALS member today!
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