South Carolina's state test of navigability is equivalent to a boating test. Thus, rivers that can be floated by a boat should be navigable and open to the public.
State Test of Navigability
The state test for navigability defines as navigable “all streams which have been rendered or can be rendered capable of being navigated by rafts of lumber or timber by the removal of accidental obstructions and all navigable watercourses and cuts . . . and such streams shall be common highways and forever free.”1) In a recent case, the Court of Appeals of South Carolina stated that navigability is determined by “whether the waterway in question has the capacity to support 'valuable floatage.' If the waterway can support such use, it is deemed navigable and thus open to the public.”2) 'Valuable floatage' is defined broadly to include any “legitimate and beneficial public use.”3) Although such public use includes all varieties of commercial traffic, ranging from passage of the largest freighter to the floating of raw timber downstream to mill, recreational uses are no less important - boating, hunting, and fishing have been found to fall within the ambit of valuable floatage.4),5) Whether the waterway is natural or man-made or whether it is impassable by any vessel at certain times of year have been found to have no bearing on the question of navigability.6) The focus remains strictly on capacity, irrespective of actual use. “To be properly categorized as navigable, the watercourse in question must also be connected to other navigable bodies of water such that it forms a means of transportation or conveyance beyond an isolated locality. This requirement of a navigable connection to a broader system of waterways has been at the heart of the navigability concept since its earliest application in this jurisdiction.”7) In one case, the court determined that a 246 acre lake was navigable even though it was sealed off from other navigable waters because it was a man-made obstacle, a dam that prevented the lake from connecting to navigable waters.8) However, in a recent case, it was held that an 88 acre pond did not meet the requirements of navigability because “the streams flowing into and out of the pond were not capable of supporting valuable floatage.”9)
Extent of Public Rights in Navigable and Non-Navigable Rivers
The use of navigable waters by the general public for the purpose of boating, hunting, and fishing is a legitimate and beneficial public use.10) The public trust extends to the ordinary high water mark for navigable tidal waters.11) South Carolina law has not ruled on the right of portage on navigable rivers.
South Carolina's constitution provides that ”[n]avigable waters shall forever remain free public highways.”12) However, South Carolina law prohibits a person from operating personal watercraft while on the waters of the state after sunset or before sunrise.13) Similarly, waterskiing or similar activities are also not allowed between sunset and sunrise.14)
View a map of South Carolina rivers officially designated as navigable: