Is this Stream Navigable?

| May 31, 2011 | 5 Comments

This will most likely be one of my most confusing and somewhat controversial blogs yet, so please bear with me. Since we’re getting closer to the summer season, the question about the legality of river access here in Texas (and other states for that matter) has become a hot topic in our store. There are many concerns as to where paddlers and tubers can put-in or take-out, stop to take a break and even where they are allowed to float.

This brings me to water rights, which refer to whom the water belongs to. In regards to paddling, the focus is not so much on use for drinking or agriculture but more about public navigability rights — where you can and can’t be. Here in Texas, they define waterways as navigable and non-navigable. This is where most people get confused with the law because there are so many different definitions and contradictions — in other words, a lot of “gray area”.

According to state law and to help define a navigable stream, it is one that is at least 30 feet wide (the entire river bed, exposed or not) from mouth up. Anything else is considered non-navigable. There are some exceptions but if you stay focused on the 30ft. rule, you will be comfortable knowing that you are within the boundaries of the law. Non-navigable streams are generally considered private property. Along a non-navigable stream, generally the public at large has no right of use and a private landowner may forbid public entry upon or along the waterway.

Gaining access to navigable rivers is only permitted at a public venue, such as a park. Trespassing on private property to get to a public waterway is never acceptable. Some landowners will allow people to access a river for a small fee, which are usually private businesses that line the river. One thing to keep in mind is that state law prohibits parking on a highway bridge and generally forbids (with certain exceptions) parking in the main traveled part of a highway so be sure to park in clearly marked parking areas.

Another major concern is in regards to what is defined as public or private land. This is a common situation people run into when simply wanting to get out of their boats to rest or even camp. Since most of the land in Texas is privately owned it can be a tricky. Some private property lines stop 5 feet from the water line while others actually meet up with the water line and in some cases they even contain the whole riverbed (the bottom of the river). This is where it can get very confusing. There is no one “Rule of the Land” law as it varies in different parts of the state and waterways. The best thing you can do when in doubt is to think conservatively and yield to the property owner. Certain rivers have clauses to them that can contradict the law at hand.

My advice is simple, learn more about your local waterways. When you are planning a trip, be sure to properly research area water laws by contacting the local county office and try to obtain or access as many maps as possible. Many published maps identify public land, parking areas and launch points. Here is a link to an overview of laws regarding the navigation of Texas streams.

We’ve heard countless stories of paddlers getting confronted by landowners saying that they can’t be there. Do you have a story you’d like to share with us? If so, comment below.

Have fun but be prepared!

Dave Graves
Assistant Manager
ACK – San Marcos

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Category: Canoeing, Kayak Fishing, Kayaking, Knowledge, Resources

Comments (5)

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  1. Justin Davies says:

    Is New Braunfels new river access fee illegal? It would seem to be in direct contradiction to all existing navigable waterway laws for public access to be restricted unless a fee is paid. Whether it applies to city residents or not is immaterial, as the city does not “own”the river. The same question applies to their bans on items on the river, as the local police should have no authority beyond the riverbank, the river itself being State jurisdiction. Why has no one challenged New Braunfels severe overreach?

    • Joseph Dowdy says:

      I understand that local outfitters did recently challenge the ban on disposable containers and I believe it was overturned. MySA covered the story here: http://www.mysanantonio.com/news/local/article/Judge-overturns-New-Braunfels-river-can-ban-5178725.php

      • DRC says:

        There have been numerous incidents in recent years of cities attempting to restrict navigation on waterways that are navigable by statute, including Barton Creek and the Lower Guad. In 2016, New Braunfels Parks & Rec accosted several experienced whitewater boaters for taking out at Common St. during a 5k release, despite the fact that those boaters had run the river at that level and taken out at Common St. many many times in the past. Austin has, in recent years, begun issuing blanket boating bans on Barton Creek and other area creeks when the water is high. I am not a lawyer and would love for someone who is to render a legal opinion on this, but my understanding (and that of many other boaters in Texas) is that cities do not have the authority to “close” a river or creek that is navigable by statute. They can of course close access to the river or creek through city property, but you would still be within your rights to access the waterway through a state or county easement, such as a highway crossing, as well as to access city property to portage around hazards to navigation (dams, etc.) To me, these issues seem to fall under the same category as boater/landowner river access disputes, except that the landowner is a city. Cities don’t own the waterway and thus, per my understanding, cannot close it without state intervention. Such does occur sometimes. For instance, the state closed the Lower Guad to navigation after the devastating 2002 flood, but I don’t think they’ve done so since.

        • Larisa Manescu says:

          Hey,

          These are interesting points you bring up! We just had recent flooding in Austin and after digging around a bit to see if the City can restrict navigation on waterways, I found this recent article which cited the Waterway Restriction Plan for the City of Austin; this gets into the gritty details of the restriction. I’m sure each city has its own type of plan to turn to during severe weather!

          Best,
          Larisa

  2. Ty says:

    It is my understanding, that on navigable rivers, the property boundary is up to the “normal high water mark”. Therefore, it seems like one could camp out on a sand bar or other low lying piece of land.

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