Final Report: Georgia House Study Committee on Navigable Streams 2024-12-01 | WWALS Watershed Coalition (WWALS) is Suwannee RIVERKEEPER®

They decided not to change the 1863 law, and did not chart any clear legislative course forward.

This is better than some courses they could have taken, the Georgia House Study Committee on Navigable Streams and Related Matters.

However, they seem to left the problem for everyone else to navigate in ad hoc partnerships, which could leave paddlers having to negotiate passage among many parties.

Final Report for little change, maybe privatization of passage 2024-12-01, Georgia House Study Committee on Navigable Streams and Related Matters

Here are the recommendations of the committee from their final report:

Maintain the definition of navigability set forth in O.C.G.A. §44-8-5(a) and the right of passage for navigable streams as found in O.C.G.A. §52-1-31;
Refrain from a statutory delineation of navigable and non-navigable streams;
Incentivize and strengthen tools to foster collaboration and partnerships between landowners, nonprofits, and local/state government that increase opportunities for public access and conservation of Georgia’s waterways;
Preserve the Georgia Outdoor Stewardship Program;
Urge the Department of Natural Resources to further publicize and fund new technologies that assist in tracking and resolving disputes on waterways; and
Protect Georgia’s fishing, hunting, trapping, and outdoor recreation traditions, as well as those reliant on waterways such as logging and farming, by carefully analyzing the impact of any potential legislation on these sectors.

They paid commendable attention to what the public had to say, including fishers, paddlers, riparian landowners, loggers, farmers, and trappers (who said current law does not permit them to trap on public waters).

Noting pulls in various directions, the committee continued to support the 1863 law that requires a navigable stream to be “capable of transporting boats loaded with freight in the regular course of trade either for the whole or a part of the year,” while the committee also depended on GA-DNR’s opinion:

⁶ DNR built and currently maintains 259 boat ramps and access areas across the state, and they hold that streams with state-owned boat ramps are open for public use.

The committee did not resolve this or other contradictions.

At least the committee seemed to reject using flow rates to determine navigability. This is especially good for our blackwater coastal plain rivers, where flow rate can vary from almost nothing to covering the flood plain.

DNR mentioned a problematical point and a beneficial point:

DNR law enforcement testified to the study committee about the affidavit process where landowners can submit a list of persons authorized to hunt, fish, or be on a property. During the study committee process, DNR also announced a partnership with the Hunt Regs App to allow Georgians an easy way to report illegal hunting and fishing activities by connecting directly to the DNR Ranger Hotline program.⁸ This free program should allow easier reporting of violations, as well as an opportunity for DNR to collect data and note problematic locations for potential further investigation.

⁸ https://www.albanyherald.com/local/hunt-regs-app-allows-individuals-to-report-poachers/article_622797b0-9c64-11ef-9e2a-779dbd69e816.html

As a landowner (albeit not directly on a major waterway), I appreciate an easy way to report illegal activities.

Here is why that first DNR point about limiting access to a list of persons is problematical:

The property rights enjoyed by landowners are not inalienable. Parties interested in being on non-navigable waterways can speak with landowners to acquire permission or buy those rights from the landowner.

That way lies partitioning passage rights among many riparian landowners, which would make paddling very difficult to manage.

The committee considered many points of view, and ended up with this:

The prevailing view is that most landowners and outdoor enthusiasts have no problem with one another, but seek respect from one another. Respect cannot be legislated, but trespass can be legislated, confrontations can be mitigated, and the details of Georgia law can be better communicated.

The committee seems to be recommending what is pretty close to privatizing navigability and passage:

Durable and sustainable ways of increasing access to Georgia waterways for the public can come in the form of collaborative efforts and private partnerships to secure rights and secure land along Georgia waterways for lasting public use. This can come in the form of partnerships between a combination of private landowners, nonprofit organizations, local governments, and state government. The study committee heard testimony from different preserved areas that used different combinations of stakeholders to collaborate on projects.

The committee did not seem to favor a repeated attempt such as HB 1397, which tried to list all navigable stretches of streams (see point 2 in its recommendations).

I guess we’ll see.

The Laws

2023 CODE OF GEORGIA
Title 44 – PROPERTY (§§ 44-1-1 — 44-17-7)
Chapter 8 – WATER RIGHTS (§§ 44-8-1 — 44-8-10)
Section 44-8-5 – Rights of adjoining landowners in navigable streams
Universal Citation: GA Code § 44-8-5 (2023)

(a) 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.

(b) 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.

(c)

(1) The General Assembly finds that the state procured ownership of all navigable stream beds within its jurisdiction upon statehood and continues to hold title to all such stream beds, except where title in a private party originates from a valid Crown or state grant before 1863. The General Assembly further finds that, by the common law, the citizens of this state have an inherent right to use for passage and for hunting and fishing all navigable streams from low-water mark to low-water mark. The General Assembly further finds that the public retained the aforementioned right even where private title to beds of navigable streams originates from a valid grant, but in such cases, the public’s right is limited to only using such navigable streams for passage and for hunting and fishing.

(2) Nothing contained in this subsection shall be construed to permit entry upon privately owned land adjacent to navigable streams.

Amended by 2024 Ga. Laws 597,§ 1, eff. 7/1/2024.

Amended by 2023 Ga. Laws 92,§ 1, eff. 7/1/2023.

2023 CODE OF GEORGIA
Title 52 – WATERS OF THE STATE, PORTS, AND WATERCRAFT (§§ 52-1-1 — 52-10-4)
Chapter 1 – GENERAL PROVISIONS (§§ 52-1-1 — 52-1-39)
Article 2 – RIGHT OF PASSAGE (§§ 52-1-30 — 52-1-39)
Section 52-1-31 – Legislative findings and declaration of policy
Universal Citation: GA Code § 52-1-31 (2023)

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.

-jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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