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American Whitewater

Georgia Navigability Report

Summary

The Georgia Department of Natural Resources admits that public access to waterways for the purposes of fishing, hunting, and boating is a complex issue because of the difficulty of determining whether a stream is navigable by Georgia law.1) Georgia law defines a navigable stream as “a stream which is capable of transporting boats loaded with freight in the regular course of trade either for the whole or part of the year.”2) Navigability of streams is often decided on a case-by-case basis through litigation.3)

State Test of Navigability

Georgia law defines a navigable stream as “a stream which is capable of transporting boats loaded with freight in the regular course of trade either for the whole or part of the year.”4) There is no clear-cut standard for navigability in Georgia. Factors to be taken into account may include historical navigability and whether the stream is navigable under “current commercial standards.”5) Public easements of passage are only granted upon acceptance by the appropriate public authorities, regardless of how long boating has occurred on the stream.6)

The Code of 1863, which provided the definition of navigability, was intended to codify then-existing law.7) The Code of 1863 includes the principle that beds of nonnavigable streams belong to the owner of the adjacent land and that the owner of such a stream has the right to exclusive possession of it.8) A private easement in a stream can be acquired by prescription which requires open and notorious, continuous use of the river under an adverse claim for the requisite statutory time period.9)

In Givens v. Ichauway, Inc., the Supreme Court of Georgia found Ichauwaynochaway Creek to be non-navigable10) and not subject to a private easement.11)

Extent of Public Rights in Navigable and Non-Navigable Rivers

Georgia Code § 44-8-5 extends the rights of owners of lands adjacent to navigable streams down to the low-water mark in the bed of the stream, implying that there is no right to portage. Permission must be obtained from owners before fishing in private waters or from private land.12)

Miscellaneous

Individuals or corporations owning or controlling land on both sides of a nonnavigable stream may construct dams, canals, etc., but are liable for property damage resulting from diversion of flow.13) Owners may also divert the courses of nonnavigable water through their land.14) Further, persons owning lands on any stream are authorized to ditch or embank their lands for flood control provided they do not divert the stream from its “ordinary channel.”15) An owner of land through which a nonnavigable stream flows may not obstruct or divert the stream, causing it to overflow or pollute the land of another.16)

The Metropolitan River Protection Act was passed in 1978 and provides strict regulation of development of the “stream corridor” of the Chattahoochee River in the metro Atlanta area. The stream corridor is all land in the area within 2000 feet of the watercourse (banks of the Chattahoochee) or within the flood plain, whichever is greater.17)

It is unlawful to place “boards, wire, barrels, buckets, or any device or obstruction in any stream … in an attempt to catch fish by grappling, noodling, or hand grabbing.”18)

The Department of Natural Resources is authorized to provide for free passage of fish in fresh water streams for spawning by giving written notice to those owning, leasing, or constructing a dam or other obstruction to provide a suitable fish ladder or passageway to allow the fish to pass freely over the dam or obstruction.19)

The Wildlife Resources Division of the Georgia Department of Natural Resources maintains many boat ramps. An interactive map of those ramps can be found at the following website: http://georgiawildlife.dnr.state.ga.us/content/boatrampmap.asp?txtDocument=126.

1) Georgia DNR, Wildlife Resources Division – Aquatic Resource and Fishing FAQs (“Georgia DNR FAQs”), available at http://georgiawildlife.dnr.state.ga.us/content/displaycontent.asp?txtDocument.
2) , 4) Ga. Code § 44-8-5.
3) Georgia DNR FAQs.
5) Givens v. Ichauway, Inc., 493 S.E.2d 148, 151 (Ga. 1997). The court in Givens relied on expert testimony that the smallest barge in use for commercial transport on the river into which the stream at issued flowed was 245 feet long, 35 feet wide, and had a draft of seven and a half feet. Id.
6) Id. at 152-53.
7) Id. at 152.
8) Id.; Ga. Code §§ 44-8-2 and 44-8-3.
9) Givens v. Ichauway, Inc., 493 S.E.2d 148, 153 (Ga. 1997); Georgia Canoeing Ass’n v. Henry, 482 S.E.2d 298 (Ga. 1997); Seaboard Air Line Ry. v. Sikes, 60 S.E. 868 (Ga. Ct. App. 1908).
10) 493 S.E.2d at 151.
11) Id. at 153.
12) Ga. Code § 27-4-2.
13) Ga. Code § 44-8-4.
14) Ga. Code § 44-8-9
15) Id.
16) Ga. Code § 51-9-7.
17) Ga. Code §§ 12-5-440, 12-5-441, and 12-5-444.
18) Ga. Code § 27-4-37.
19) Ga. Code § 27-1-8.