Pond Boss Forums GENERAL QUESTIONS Pond Boss Who owns the rivers?

The section on National River Law discusses river ownership, use, and conservation law throughout the United States. Following is a review of what individual states can and cannot lawfully do with the rivers within their borders.


4. The states own these rivers up to the "ordinary high water mark." This is the mark that people can actually see on the ground, where the high water has left debris, sand, and gravel during its ordinary annual cycle. (Not during unusual flooding.) It is not a theoretical line requiring engineering calculations. Where the river banks are fairly flat, this mark can be quite a distance from the edge of the water during medium water flows. There is often plenty of room for standing, fishing, camping, and other visits.

I'm not sure how the law reads exactly here in Iowa but I am pretty sure the water itself is the only thing public. The nice thing is that many landowners near the trout streams in the NE coner of the state allow public access along the streams.

If the federal courts have determined that a water body is navigable-in-fact under federal law for any purpose, that water body qualifies as a “traditional navigable water” subject to CWA jurisdiction under 33 C.F.R. § 328.3(a)(1) and 40 C.F.R. § 230.3(s)(1).

Corps districts and EPA regions should be guided by the relevant opinions of the federal courts in determining whether waterbodies are “currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce” (33 C.F.R. § 328.3(a)(1); 40 C.F.R. § 230.3(s)(1)) or “navigable-in-fact.” This definition of “navigable-in-fact” comes from a long line of cases originating with The Daniel Ball, 77 U.S. 557 (1870). The Supreme Court stated: Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

The Daniel Ball, 77 U.S. at 563. In The Montello, the Supreme Court clarified that “customary modes of trade and travel on water” encompasses more than just navigation by larger vessels: The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway.

The Montello, 87 U.S. 430, 441-42 (1874). In that case, the Court held that early fur trading using canoes sufficiently showed that the Fox River was a navigable water of the United States. The Court was careful to note that the bare fact of a water’s capacity for navigation alone is not sufficient; that capacity must be indicative of the water’s being “generally and commonly useful to some purpose of trade or agriculture.” Id. at 442.

In Economy Light & Power, the Supreme Court held that a waterway need not be continuously navigable; it is navigable even if it has “occasional natural obstructions or portages” and even if it is not navigable “at all seasons . . . or at all stages of the water.” Economy Light & Power Co. v. U.S., 256 U.S. 113, 122 (1921).

In United States v. Holt State Bank, 270 U.S. 49 (1926), the Supreme Court summarized the law on navigability as of 1926 as follows: The rule long since approved by this court in applying the Constitution and laws of the United States is that streams or lakes which are navigable in fact must be regarded as navigable in law; that they are navigable in fact when they are used, or are susceptible of being used, in their natural and ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water; and further that navigability 4 does not depend on the particular mode in which such use is or may be had - whether by steamboats, sailing vessels or flatboats- nor on an absence of occasional difficulties in navigation, but on the fact, if it be a fact, that the stream in its natural and ordinary condition affords a channel for useful commerce.

Holt State Bank, 270 U.S. at 56. In U. S. v. Utah, 283 U.S. 64, (1931) and U.S. v. Appalachian Elec. Power Co, 311 U.S. 377 (1940), the Supreme Court held that so long as a water is susceptible to use as a highway of commerce, it is navigable-in-fact, even if the water has never been used for any commercial purpose. U.S. v. Utah, at 81-83 (“The question of that susceptibility in the ordinary condition of the rivers, rather than of the mere manner or extent of actual use, is the crucial question.”); U.S. v. Appalachian Elec. Power Co., 311 U.S. 377, 416 (1940) (“Nor is lack of commercial traffic a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation.”).

In 1971, in Utah v. United States, 403 U.S. 9 (1971), the Supreme Court held that the Great Salt Lake, an intrastate water body, was navigable under federal law even though it “is not part of a navigable interstate or international commercial highway.” Id. at 10. In doing so, the Supreme Court stated that the fact that the Lake was used for hauling of animals by ranchers rather than for the transportation of “water-borne freight” was an “irrelevant detail.” Id. at 11. “The lake was used as a highway and that is the gist of the federal test.” Ibid.11 Also of note are two decisions from the courts of appeals.

In FPL Energy Marine Hydro, a case involving the Federal Power Act, the D.C. Circuit reiterated the fact that “actual use is not necessary for a navigability determination” and repeated earlier Supreme Court holdings that navigability and capacity of a water to carry commerce could be shown through “physical characteristics and experimentation.”

FPL Energy Marine Hydro LLC v. FERC, 287 F.3d 1151, 1157 (D.C. Cir. 2002). In that case, the D.C. Circuit upheld a FERC navigability determination that was based upon three experimental canoe trips taken specifically to demonstrate the river’s navigability. Id. at 1158-59. The 9th Circuit has also implemented the Supreme Court’s holding that a water need only be susceptible to being used for waterborne commerce to be navigable-in-fact.

Alaska v. Ahtna, Inc., 891 F.2d 1404 (9th Cir. 1989). In Ahtna, the 9th Circuit held that current use of an Alaskan river for commercial recreational boating is sufficient evidence of the water’s capacity to carry waterborne commerce at the time that Alaska became a state. Id. at 1405. It was found to be irrelevant whether or not the river was actually being navigated or being used for commerce at the time, because current navigation showed that the river always had the capacity to support such navigation. Id. at 1404. 5

In summary, when determining whether a water body qualifies as a “traditional navigable water” (i.e., an (a)(1) water), relevant considerations include whether a Corps District has determined that the water body is a navigable water of the United States pursuant to 33 C.F.R § 329.14, or the water body qualifies as a navigable water of the United States under any of the tests set forth in 33 C.F.R. § 329, or a federal court has determined that the water body is navigable-in-fact under federal law for any purpose, or the water body is “navigable-in-fact” under the standards that have been used by the federal courts.

The problem with the word "navigability" wrt water rights is that it has so many definitions and meanings. The best thing to do is to ask: 1) What is the definition for this type of navigability; and 2) even if navigability is found, what does it mean under that test?

First, there is Federal Navigability for Title. This form of navigability decides whether title to land under water is vested in a state or the United States. The test is: Was the water used OR susceptible of being used in its ORDINARY condition as a highway for commerce on the date the state became a state? If so, title is vested in the state.

Second, there is federal navigation for easements, which is the same test except it does not actually determine title to the land under the water.

Third, there is federal navigability for Clean Water Act jurisdiction. The Clean Water Act controls dumping and altering waters defined as navigable under this navigability test. The water is navigable if either of two tests are met: 1) The wetlands subject to federal jurisdiction under the CWA are those with a “continuous surface connection” to “waters of the United States;" or 2) The waterway is navigable if there is a “significant nexus” between a wetland in question and navigable waters of the Unites States. This focuses on an economic impact, not necessarily a physical surface connection.

Fourth, states can have their own navigability rules that affect title to land under the water. For instance, Texas uses BOTH the federal navigability for title defintion and a second definition: if the river has an average width of 30 feet from beginning to end, it is considered navigable.




A completely separate issue is public access to rivers defined as navigable. This is a problem when the banks (and possibly the beds) of rivers are privately-owned land. If you buy riverfront property, this could be the case. This is largely a state issue. In Texas, the water of navigable rivers is publicly owned, but the beds and banks are privately owned. Landowners can prevent people from trespassing across their land even to access navigable waters. However, the public is free to put-in at low-water crossings and can thus use the water.

Both of the above two rules clashed in a very interesting Texas water law case. Person "A" owned land around the Medina River. A dammed the Medina River to create the aptly-named Diversion Lake. A thus owned the bed and banks around both that part of the river and the new lake. Person "B" put-in on the Medina River at a low water crossing and was fishing the river. B ended up in Diversion Lake even though B did not trespass across A's land. A put up a fence at the entrance of Diversion Lake to stop B and others on the river from accessing the lake. B sued, claiming that the waters of the lake were navigable water even though A owned both the bed and banks. The court said:

When A dammed the Medina River to create Diversion Lake, it was public water that spread into the lake. This gave public waters a new bed, and the artificial change in the river's course does NOT destroy the navigability of the water. The public has a right to use the lake for fishing. A cannot keep the public off the lake; A can only keep the public from trespassing across his land to get to the lake.