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Old 10-09-2019, 11:31 PM
Mr Downtown is offline
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How far upstream can I (legally) paddle?


My new (imaginary) kayak ships can float in only six inches of water. If I put in to, say, the Missouri River and head upstream, and then up a tributary, and then up one of its tributaries . . . eventually I'll find myself in a stream small enough that the rancher who owns the land has put a fence across the stream.

Is there a federal regulation, or some common-law concept, about what magnitude of streams must be kept open for navigation? Does the right of navigation extend only to steamboats, or to cabin cruisers, or to my (still imaginary) kayak?
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Old 10-09-2019, 11:52 PM
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It varies by state. For example, in Montana where you'll end up if you follow the Missouri, navigable waters (a federal designation) are supposed to be open to the public for boating or wading up to the high water line. You cannot get out on private property. Federal and state public land are of course open for recreation. It's a rather important issue in Montana.

Other ones I remember hearing, second hand as I haven't done the research: in Colorado it's similar but it can be interpreted as forbidding you from touching land, including potentially pushing off with an our. Otherwise you'll generally find that eastern states are more pro-landowner than western (not just relating to waters but land), but there are exceptions.
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Old 10-10-2019, 12:06 AM
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Quote:
Which rivers are owned by the public?

The U.S. Supreme Court has held that the bed and banks under all rivers, lakes, and streams that are navigable, for title purposes, are owned by the states, held in trust for the public. Title in this context means ownership. This public-trust ownership extends up to the ordinary high water line, (or ordinary high water mark,) encompassing what is commonly referred to as the submerged and submersible land, as opposed to the upland. This type of navigability is called title navigability...

Federal courts have held that even those rivers that are navigable only by small, non-motorized watercraft are still navigable for title purposes. (Remember that other requirements may apply to navigability for other legal matters, such as cases involving the "commerce clause" of the U.S. Constitution.)
http://www.nationalrivers.org/which-...he-public.html

See the Frequently Asked questions on the side of this post to further clarify.

Last edited by PastTense; 10-10-2019 at 12:06 AM.
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Old 10-10-2019, 11:44 AM
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I have a relative in the Western part of central Ohio and he lived on a farm near the start of a stream that flowed into the Ohio River and was only a mile or so away from a stream that flowed into Lake Erie. Never heard of farmers actually fencing off a stream as this would just cause trouble for the farmer. Who wants a stream backing up and flooding your crops?

If you wanted to create a pond or personal reservoir you can easily draw from the stream and place it to the side. Most of the year you can easily walk across these types of things without getting your ankles wet.
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Old 10-10-2019, 01:13 PM
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Originally Posted by Si Amigo View Post
I have a relative in the Western part of central Ohio and he lived on a farm near the start of a stream that flowed into the Ohio River and was only a mile or so away from a stream that flowed into Lake Erie. Never heard of farmers actually fencing off a stream as this would just cause trouble for the farmer. Who wants a stream backing up and flooding your crops?

If you wanted to create a pond or personal reservoir you can easily draw from the stream and place it to the side. Most of the year you can easily walk across these types of things without getting your ankles wet.
Presumably something like this (which is not a great example but best image I can find, this one is pointedly not intended to impede boaters). Which would still require regular care and inspection, as any large flotsam could accumulate and clog. But I don't think fencing is that common, but (non-enforceable) no trespassing signs are used.
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Old 10-10-2019, 02:30 PM
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Originally Posted by Si Amigo View Post
If you wanted to create a pond or personal reservoir you can easily draw from the stream and place it to the side.
Not necessarily. Those downstream of you may have rights to that water. Water rights can get weird. Not long ago it was illegal for Coloradans to collect their own rainwater.
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Old 10-10-2019, 02:42 PM
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Roughly speaking (though it varies from state to state), in the eastern US, you can do whatever you like with rivers and streams that cross your property, including diverting them to form reservoirs, but in the western US, there are a whole slew of complicated regulations (called "riparian rights laws") about what you can and can't do.
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Old 10-10-2019, 02:47 PM
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In California, I have been informed that if you're fishing, you have rights from bank to bank to wander along the creek. You can't necessarily step on shore, but you can wade.
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Old 10-10-2019, 03:41 PM
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Originally Posted by Chronos View Post
Roughly speaking (though it varies from state to state), in the eastern US, you can do whatever you like with rivers and streams that cross your property, including diverting them to form reservoirs, but in the western US, there are a whole slew of complicated regulations (called "riparian rights laws") about what you can and can't do.
That is a vast overstatement of the riparian rights in the Eastern US. For one thing an individual cannot dam a navigable waterway to make it not so. You also must respect up- and downstream rights, though that is a bit harder to describe and there have been many court cases about it.
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Old 10-10-2019, 04:05 PM
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I've seen in the Intermountain West fences across creeks. They are there to prevent cattle from wandering off (or getting into a non-grazing field). They go fairly low to the creek but don't block it. (Even the lightest kayak wouldn't be usable on a lot of these most of the time.)

Due to erosion these creeks almost always have steep banks. And since it's a dry area the water level is usually quite low but once in a while gets a big burst from an upstream downpour. I think the ranchers just hope that a debris dam doesn't form.

Some of the worst floods in that region happen when natural debris dams form and a really big downburst causes several of them to break and whoosh. There goes the next several towns downstream.

Last edited by ftg; 10-10-2019 at 04:05 PM.
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Old 10-10-2019, 06:00 PM
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Originally Posted by Patch View Post
In California, I have been informed that if you're fishing, you have rights from bank to bank to wander along the creek. You can't necessarily step on shore, but you can wade.
You can legally walk the entire shoreline of California too, despite Vinod Khosla's objections.
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Old 10-10-2019, 06:08 PM
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There are places in Colorado where you could not get your kayak through because there's a fence and a net. One of them is near Deckers. I don't know how they did that because, basically, the state's laws are that you have the right to the waterway but not to the land it's flowing through. But yet, some sections are blocked. This open waterway thing has resulted in some conflict between rafters and fishermen.

It's legal (or used to be anyway) to paddle your kayak through the Denver Country Club on Cherry Creek. They made it harder by diverting the creek under a couple of streets in a kind of narrow and scary channel, and it may be impossible now, but at one time it could be done, and was done. You can't step onto shore and play golf though.

Last edited by Hilarity N. Suze; 10-10-2019 at 06:09 PM.
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Old 10-11-2019, 08:43 AM
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Originally Posted by Hilarity N. Suze View Post
They made it harder by diverting the creek under a couple of streets in a kind of narrow and scary channel, and it may be impossible now, but at one time it could be done, and was done. You can't step onto shore and play golf though.
I doubt that it's to make it harder, it's more likely for better management of flood control.

The creek behind my house (I live in a flood plan) goes underneath a major road through two like 12 foot diameter pipes and then goes into a pond downtown. You can kayak through it when there isn't a flood. It then goes underneath a horse track for about half a mile and visible in that horse track to the side is a flood gate that can be raised and lowered. I suspect that you could kayak that when there isn't a flood but it would down right creepy.
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Old 10-11-2019, 10:38 AM
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If you go up the Missouri and then up the Madison, and after some necessary portages past Hebgen Dam and maybe the rapids before Quake Lake, when you enter Yellowstone National Park you'd theoretically be obligated to pay $20 per person per week. I don't know that they monitor entrance, but I expect there's a non-zero chance of meeting a ranger there given that it's a prime flyfishing area.
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Old 10-11-2019, 11:07 AM
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In my county in Virginia, you can't dam creeks/rivers and you can't let your cattle graze in the any more.

In the state of Virginia from what I've seen no one owns the waterways but they can own the ground the waterway flows through. So you can kayak through anyone's property, but once you set your foot on the bottom things get more legally murky.
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Old 10-11-2019, 12:17 PM
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Originally Posted by Chronos View Post
Roughly speaking (though it varies from state to state), in the eastern US, you can do whatever you like with rivers and streams that cross your property, including diverting them to form reservoirs, but in the western US, there are a whole slew of complicated regulations (called "riparian rights laws") about what you can and can't do.
Coincidentally, yesterday my wife was going to be teaching property law in her college Business Law class. Curious what she would spend 2 hours on, I asked if she would cover various property law concepts - including riparian rights. In her words, she "wasn't going to touch that!"

Just suggesting the complexity of such matters once you get beyond the most basic representations... Also, suggesting that we don't have the most thrilling dinner conversations around our house!
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Old 10-11-2019, 01:59 PM
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And I think that some eastern states have been adding to their riparian regulations, too. Especially some of the states bordering Georgia, who's trying to drink everyone else's milkshakereservoirs.
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Old 10-13-2019, 09:54 AM
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It's possible to canoe the entire length of the Mississippi River, and many people have. The "official" starting point is Lake Itasca in northern Minnesota. The river there is so narrow that you can cross it on stepping stones.
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Old 10-14-2019, 02:27 PM
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Originally Posted by thelurkinghorror View Post
You can legally walk the entire shoreline of California too, despite Vinod Khosla's objections.
If you were walking the shoreline, then it would have nothing to do with Vinod Khosla, because you wouldn't have to trespass across his property to get to where you're already at.
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