Understanding river rights
Several years ago I was canoeing on a river and nearly got hung up on barbed wire fences that were strung from bank-to-bank. The landowners probably put them there to keep cattle from going downstream. I'll bet they didn't know that these fences are illegal.
Eric Leaper is the executive director of the National Organization for Rivers. He says you may technically own the bed and banks of a river or stream, but the U.S. Supreme Court says if the waterway was navigable during the fur trade of the 1800's, it's considered navigable today for public use. This means if someone can float at least a canoe or kayak on it, they have the right to be there, even with rapids, waterfalls, or extreme shallow areas.
"It's subject to the Federal Navigational Servitude regardless of who owns the bed or banks under local property law," says Leaper. "There's a navigational easement under federal law that includes navigation, walking along the banks, portaging around obstacles, fishing, fowling, and swimming."
The public does not have the right to trespass on your land to get to the river. They have to use public access points, and this does include where a road crosses over a bridge. Leaper says it's illegal for landowners to connect a fence to the bridge to block public access. It's also a violation of federal law to string fences across the river.
"Landowners keep putting them up, and they're putting themselves at extreme risk for both criminal prosecution, because that is a crime, and also for civil prosecution for liability if someone is seriously injured or drowns on a fence across a river," says Leaper.
State governments can manage river resources, but must do so in ways that don't conflict with federal law.
Read FAQ's on federal law regarding public ownership, use, and conservation of rivers.
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