Update 2024-03-08: A 19th-century navigable definition does not work for 21st-century river economies 2024-02-29.

I watched it so you don’t have to, Monday’s meeting of the Georgia Natural Resources & Environment Environmental Quality Subcommittee.
https://www.youtube.com/watch?v=pnl5fJP5ptM&t=1425s

The subcommittee is meeting again at 1PM today, February 28, 2024, with HB 1397 as the only thing on the agenda, and Rep. John Corbett again chairing.
https://www.house.ga.gov/Documents/Agendas/Natural%20Resources/January%2024,%202011%2027.pdf

See also the input I sent the legislators yesterday, Navigable stream additions to GA HB 1397 2024-02-27.

This is not a transcript. Except where I use quotation marks, it is a paraphrase of what I found to be the important points of the Monday subcommittee meeting.

Rep. James Burchett, Navigability in HB 1397 in GA House Natural Resources & Environment Quality Subcommittee 2024-02-26

The bill’s sponsor, Rep. James Burchett (District 176, Waycross) said he was concerned about people boating on oxbows and creeks onto private property, so the bill definitely did not include tributaries as navigable. He worries that currently the Georgia Department of Natural Resources (GA-DNR) is in a difficult position of having to decide matters of law.

Burchett said that he constructed the list using the Georgia definition of navigability, but he also alluded to GA-DNR’s definition that where they put boat ramps it’s navigable, and he did not really answer the committee chair’s question as to whether there was a record of how the list came about.

He also noted the bill had no appeal mechanism built in. He added that it would be a good idea to enlist some local authority to help, then appeal up to a committee of the legislator. “Some local water authority,” he said. The chair suggested an Administrative Law Judge appeal. Burchett seemed to sidestep that.

Rep. John Corbett, chairing the subcommittee, asked if there were tier 1 and tier 2 streams. Somebody from GA-DNR (apparently Commissioner Walter Rabon) said the list in the bill is the tier 1 list, based on past decisions by DNR.

Burchett worries about adding to the list, because it changes ownership from center of the river to the low water mark. They discussed that U.S. Army Corps has a different definition of navigable and Georgia does not use that definition.

Rep. Vance Smith (128, Pine Mountain) said in Harris County Mulberry Creek was huge and people park cars alongside it to boat and fish all across Harris County. Burchett said “I’m in a posture to be open to these things.” Then he cautioned the committee about adding more streams because it might distrupt the Georgia definition of navigability. He said he wanted to void litigation. Earlier, he mentioned he wanted to avoid heated discussions in the woods between armed floaters and landowners.

Rep. Corbett wondered if there’s a map showing where these things were, for example Crystal Lake Road on the Alapaha River. Burchett said there was a map, but he did not appear to have it on him.

Chair Lynn Smith returned to the issue that declaring a stream navigable could be considered a taking. Burchett said some stream landowners would make the argument that the state took some of the rights of the land if not all of them.

Joe Cook said he didn’t think the bill was ready for prime time. Need input from paddlers, sportsment, etc. He recommended a study committee to determine which streams are used now, and which ones we want to keep open. He pointed out several examples. Armuchee Creek downstream of US Highway 27 it crosses the road twice, so which one is it? Conasauga River downstream of the boundary between Georgia and Tennessee; it goes into Tennessee and back into Georgia, which one is it? He said the folks in Harrison County are very angry, because it says Tallapoosa River downstream of the boundary between Harrison County and Paulding County. He said there are many things that need to be corrected in the bill alone. And while he appreciated that streams that are not in the list could be navigable. But it presumes that those not on the list are not navigable. He said there are plenty of other streams that people have been using for recreation for decades. And letting property owners shut off streams that have been used for generations is a problem.

He also said the bill actually changes the definition of what is navigable. The current definition heard today is if you can float a boat down it loaded with freight. But the Tallulah River is deemed navigable by this bill, despite its whitewater rapids in the Tallulah Gorge. Ditto the Chattooga River. He said if you put a load of peaches or cotton on the Tallulah or Chattooga, you’re going to lose your load. The Chattahoochee is deemed navigable up to Highway 115, but about six miles down from that is the whitewater stretch of Class II rapids that attracts boaters. But upstream of 115 you can put a boatload of freight, but the bill deems it non-navigable. There’s an outfitter up there that has been putting people on that part of the stream for fifty years.

He thanked Rep. Burchett for trying to clarify hunting and fishing rights, but passage is still an issue: where we can paddle a vessel down that stream. Our 1863 definition of navigablity doesn’t work; we need a new one to figure out where have the right to paddle downstream and where they don’t. He urged the legislators to take their time on this; it will need a lot of input from a lot of people to get it right.

Rep. Burchett had a question. He said the definition actually says transporting boats loaded with freight in the regular course of trade for either whole or part of the year. He wanted to know if at high water you could do that. Joe Cook said on the Chattooga or the Tallulah there is no point at any time of the year that you could float a boat loaded with freight. Burchett wanted to know if Cook was advocating removing the Tallulah from the list. Cook said he’s advocating that by including it on the list you’re shifting the definition of navigable. Burchett said we need to take it off the list. Cook reiterated his point. The definition of navigable doesn’t work for where we use our rivers today. Burchett wanted to know if there were any others that do not adhere to the definition of navigable. Cook said there very well may be; he’d like to sit down and talk to Burchett about it. Burchett again asked if Cook was advocating removing them from the list. Cook said, “No I’m not. I’m pointing out that the definition of navigable is problematic because there are streams that are on this list that clearly are not navigable by the definition, yet thousands and millions of dollars of business is done on the Chattooga River, putting people down the Chattoga River and whitewater rafting. We’re doing commerce on those rivers.”

Corbett said “We’re pushed for time. I’m going to ask that y’all get together offline.”

Burchett had one more question. “The right of passage. Have we limited that in law to navigable streams, currently?”

Cook said, “I believe you have, yes.”

I think it’s not that clear, but that the author of the bill had to ask means the bill is not ready for prime time.

Rena Peck said of 38 Georgia water trails there are 5 that are not completely on the list in the bill: 10 miles of the upper Chattahoochee, 10 mies of the Yellow River, South River Water Trail, South & West Chickamauga Creek, and Coosawattee Watershed Water Trail. She gave examples of outfitters that put people on the water trails. So we want these water trails to be part of this list. She gave them copies of the list of water trails.

Suzanne Welander, author of the paddling guidebook, Canoeing and Kayaking Georgia, which has been in publication for 50 years now, testified in opposition, because of the application of a 160+-year-old definition of navigability “to the modern recreational activity that we see on our rivers throughout the state of Georgia.”

She noted outdoor recreation is a huge driver of rural economies, with over $1.1 billion into Georgia’s economy in 2022: specifically boating and fishing. We’re also a tourism destination for other states and countries that don’t have our nice climate where we don’t freeze over in the winter. 238,000 Georgians have jobs in the outdoor recreation industry as well.

She called the 1863 definition ancient and no longer applicable, as well as inconsistently applied. The bill list says presumed navigable, although some of them would prove impossible to freight a barge today. And today we don’t use rivers for that; we use roads and rail for freight.

The Flint River through Sproull Bluff is listed as navigable, but that would not work. There was an effort 50 years ago to build a dam to make it navigable, but that was voted down as part of Governor Jimmy Carter’s fight to preserve that stretch of river for outdoor recreation.

Over 1 million residents for Georgia enjoy recreational boating, wherever they can, even when they have to wait for rainfall. They legally access rivers from any public land, not necessarily where there is a DNR boat ramp. It could be and often is where there is a state highway crossing the river.

Fully half the streams in her guidebook by this bill are deemed not navigable. A total 115 Georgia waterways with a legacy of boating access are not included.

At a minimum the bill needs to be amended to make clear that it makes no judgement of navigability of streams not listed. She thinks that puts landowners at more risk of controversy and conflict. She said she had been shot at and escorted off land even though she was on a public road.

Finally, she asked to protect any Georgia stream capable of floating a boat and make sure it remains open to the public.

Dan MacIntyre, River Protection Chair, Georgia Canoeing Association, with about 400 family members, around for at least 55 years. People who want to paddle the Georgia rivers.

Two questions: the federal is “if it floats your boat, you can do it.” This bill creates a conflict between federal and Georgia law on every stream that is not determined to be navigable. He thinks Georgia once had that law and still does, because the supposed appeal was by a code convention that did not have power to repeal it.

Second question: How do we get definiteness? In Florida, SC, NC, and Tennessee, they use a recreational test to determine right of passage. Navigability is not a good word for this in Georgia, because navigability is about landowner property rights. “This bill is not going to bring peace.” He said it would resound in the court system. He recommended using a recreational test.

Burchett said in Georgia whatever floats your boat is not navigable. He said that would be huge expansion from the Georgia definition. He once again offered to remove some items from the bill’s list. Burchett said he knew of only one court case. He said that he gets it that some people are floating on non-navigable waterways. He said he wanted to add to the bill that its list is not navigable. Yet he said if you float a boat up a creek into my property that is very problematic. Or an oxbow. Shootings, fights. “This is not an issue that we can just continue to kick down the road.”

He says changing the definition of navigability would throw all caselaw out the door. “I fear that people want, if they can pull a kayak in three inches in water, they want to go there. That is not something I am willing to budge on.” He said he was open to adding or deleting items in the list.

I think he’s missing the point, such as all the waterways Suzanne Welander said were in her book but not included in the bill.

Chair of this committee session John Corbett said they would have a committee meeting Wednesday. He also said he would love to see a map.

They did not vote.

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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