Update 2024-02-28: Navigability in HB 1397 in GA House Natural Resources & Environment Quality Subcommittee 2024-02-26.

Here is the Final Report with Recommendations after four public input meetings and a decision meeting of the Georgia House Study Committee on Fishing Access to Freshwater Resources.

Chair Rep. James Burchett and GA House Fishing Access Study Committee 2023-11-30, plus fishing, fish, boating, and trash

Basically, they want to preserve both fishing rights (and private property rights) while preserving boating right of passage. The Study Committee found right of passage tied to navigability, so its key recommendations are to determine and delineate which parts of which rivers and streams are navigable.

If you know Committee Chair Rep. James Burchett or any of the committee members, please contact them asking for maximum navigability while preserving private property rights. Or contact your Georgia state house member.
http://openstates.org/find_your_legislator/

Burchett

The committee was chaired by Rep. James Burchett, whose District 176 includes parts of the Alapaha River Basin. He is also the Brooks County Attorney, and that county includes Okapilco and Piscola Creeks downstream and its eastern border is the Little and Withlacoochee Rivers. The committee was populated with leaders of the Georgia House and its committees.

Room

The Committee seemed to think navigability of a stream determines whether adjacent landowners own to the center of the stream or not.

“Determining navigability informs the rights of adjoining landowners of that river or stream. In 1863, Georgia codified its definition of navigability. For navigable streams, according to O.C.G.A. §44-8-5, adjacent landowner rights to that navigable stream extend to the low-water mark in the bed of the stream, The state, therefore, owns the submerged land unless the adjacent landowner’s title can be traced to 1863 or before. With non-navigable streams, on the other hand, the adjacent landowner owns to the center of the stream. If the landowner owns both sides of the stream, therefore, the landowner owns the entire bed of the stream and can exclude others. These rights with respect to non-navigable streams also include exclusive fishing rights.”

That view does not account for stretches such as the Little River between GA 76 and GA 122 which can be dry, yet at other times quite navigable. The low water mark in such cases is the bottom of the stream.

The Committee also recognized Georgia’s trout fishing industry (which is a north Georgia thing), and recommended more investment in public fishing properties. It’s not clear whether that includes more GA-DNR boat ramps.

They recommended keeping SB 115, last year’s bill that led to this committee, but they want the Public Trust Doctrine removed from it, “in recognition of the doctrine’s standing as a common law provision”. That seems like an attempt to sweep that Doctrine under the rug that won’t work, because, as the committee acknowledged, the Public Trust Doctrine is part of common law. Also, that Doctrine is already in Georgia State Law related to tidewaters, in O.C.G.A. §52-1-2 (2022): “The General Assembly further finds that the State of Georgia, as sovereign, is trustee of the rights of the people of the state to use and enjoy all tidewaters which are capable of use for fishing, passage, navigation, commerce, and transportation, pursuant to the common law public trust doctrine.” So removing the Public Trust Doctrine from SB 115 does not avoid the question of how far does it extend upstream from tidewaters.

Such quesitons including fishing rights, navigability, and right of passage that the committee considered grew out of a case involving the Flint River; see previous post. https://wwals.net/?p=63282 Similar questions arise about rivers and creeks in the Suwannee River Basin, including the Withlacoochee, Little, Alapaha, Alapahoochee, and Suwannee Rivers, as well as Okapilco Creek and others.

COMMITTEE RECOMMENDATIONS

Upon the conclusion of its meetings, the House Study Committee on Fishing Access to Freshwater Resources makes the following recommendations:

1. Determine and delineate the navigability of each of Georgia’s rivers and streams based on the statutory definition;
2. Preserve the definition of navigability set forth in 0.C.G.A. §44-8-5(a);
3. Maintain the underlying purpose of SB 115 while removing references to the public trust doctrine in statute in recognition of the doctrine’s standing as a common law provision;
4. Clarify statutory language relating to trespass and stiffen the penalty under the Hunting and Fishing Code to enforce existing law;
5. Ensure the protection of the right of passage for navigable streams as found in O.C.G.A. §52-1-31;
6. Recognize the importance of Georgia’s trout industry, including its unique ecological needs and economic benefits, and seek to preserve the state’s trout waters; and
7. Support additional investment in public fishing properties.

This is O.C.G.A. §44-8-5(a) (and (b)):

2020 Georgia Code Title 44 – Property Chapter 8 – Water Rights §44-8-5. Rights of Adjoining Landowners in Navigable Streams

1. As used in this chapter, the term “navigable stream” 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.
2. 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.

This is O.C.G.A. § 52-1-31:

Section 52-1-31—Legislative findings and declaration of policy

The General Assembly finds and declares that by the common law the citizens of this state have an inherent right to use as highways all navigable streams and rivers which are capable of transporting boats loaded with freight in the regular course of trade either for the whole or part of the year and that this right of use extends to the entire surface of the stream or river from bank to bank. The General Assembly further finds that the common law regarding such right of use has not been modified by statute nor is it incompatible with the federal or state constitutions. Therefore, the General Assembly declares that ensuring the right of use by all the citizens of this state of navigable streams and rivers which are capable of transporting boats loaded with freight in the regular course of trade either for the whole or part of the year as highways has more than local significance, is of equal importance to all citizens of the state, is of state-wide concern, and, consequently, is properly a matter for regulation under the police powers of the state. The General Assembly further finds and declares that structures located upon navigable streams and rivers which are used as places of habitation, dwelling, sojournment, or residence interfere with the citizens’ right to use the entire surface of such streams and rivers which are capable of transporting boats loaded with freight in the regular course of trade either for the whole or part of the year from bank to bank as highways and must be removed to ensure the rights of the citizens of this state to such usage. It is declared to be a policy of this state and the intent of this article to ensure such rights of the citizens of this state by authorizing the commissioner of natural resources to remove or require removal of certain structures from such streams and rivers which are capable of transporting boats loaded with freight in the regular course of trade either for the whole or part of the year in accordance with the procedures and within the timetable set forth in this article.

Here are images of the report, a copy of which is also on the WWALS website.

List of committee members

Introduction and Meetings

Committee Findings: Georgia’s Fishing Landscape

Navigability and Rights of Landowners

Navigability, the Flint River, and Senate Bill 115

Text of HB 115 and establishment of this committee

Public Trust Doctrine

Committee Recommendations

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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