Pennsylvania Navigability Report
A body of water is navigable if it is or can be used for commercial shipping purposes at any stages of water. The public can use navigable waterways for recreational purposes regardless of the ownership of the land beneath. On the other hand, if a body of water is non-navigable, it is owned and can be regulated by those who own the lands beneath it and abutting it.
State Test of Navigability
The common law ebb and flow doctrine has been rejected in Pennsylvania.1) A body of water is deemed navigable if it is navigable-in-fact.2) However, navigability for mere recreational purposes, e.g., floating a canoe, does not suffice.3) To be navigable-in-fact, and in law, a body of water must be “used or usable as a broad highroad for commerce and the transport in quantity of goods and people.”4) Bodies of water not usable for commercial shipping purposes are deemed “non-navigable.”5) The courts have distinguished bodies of water where the water itself is the focus of attraction from those that form trade routes.6) Only the latter is deemed navigable.7)
In addition, courts have declared certain rivers as public rivers and, therefore, open to the public. These rivers include Ohio, Monongahela, Youhiogeny, Alleghany, Susquehanna, and its north and east branches, Juniata, Schuylkill, Lehigh, and Delaware.8).)) Moreover, navigability of rivers is not determined on a piecemeal basis.9) Thus, once a river is held to be navigable, its entire length is deemed navigable.10) Privately-owned creeks and small streams are customarily non-navigable.11) However, if they are “of sufficient capacity, at any stages of water, to be used for transportation of lumber or other goods,” they are held subject to public easement and are navigable.12)
Acts of assembly have declared various streams public highways and, therefore, navigable.13) However, at least some courts have held that a stream that is not navigable-in-fact cannot be made navigable by the mere passage of an act of assembly.14) Hence, the most reliable test for determining navigability of a body of water is whether it is navigable-in-fact, i.e., it is or can be used for commercial shipping.
Extent of Public Rights in Navigable and Non-Navigable Rivers
A navigable body of water in Pennsylvania is publicly owned and may only be regulated by the Commonwealth.15) Cases suggest that the public has the right to boat, fish, and swim in such navigable waters.16) Ownership of land beneath does not afford any right superior to that of public to use the waterway.17) On the other hand, the use of a non-navigable body of water is subject to regulation by those who own the lands beneath and abutting the water.18)
Portage rights of the public along the banks of navigable waters likely extend to high-water mark.19) However, above the high-water mark, they are likely subject to regulation by the riparian owner.20)
The Fish and Boat Commission regulates fishing and boating in Pennsylvania pursuant to Title 58, Part II, of the Pennsylvania Code. Also, the Department of Conservation and Natural Resources regulates fishing, swimming, boating, and whitewater boating in state park waters pursuant to Title 17, Chapter 11, of the Pennsylvania Code.21)