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Traditional
Navigable Waters of the United States.
Public use of water and watery - ways (Lakes, Rivers, Bayous, Streams,
Creeks, and Waterside properties in Arkansas is an extremely complicated
issue.
This Article in no way to be used as a legal definitions, only
awareness of the water ownership issue in Arkansas.
The phrase "stream and streambed is used for all flowing water".
Please seek a lawyer’s opinion for specific answers to Water use land
ownership issues in Arkansas.
In Arkansas ownership of the streambed itself (the public’s right to use
stream corridors for recreation) and the right of the federal government to
regulate activities on a stream is based in part on the question of
navigability.
In 1980, the Arkansas Supreme Court decided that the definition of
navigability includes recreational use with its decision in
State v. McIlroy (268 Ark.277).
Under this decision, rivers that are used for recreational use, for even
part of the year during normal flow, can be considered navigable.
If a stream is given federal navigability status, the federal government
claims the right to regulate activities on that stream up to the high water
mark.
If a stream is given state navigability status, the state of Arkansas
actually owns the streambed up to the high water mark. Streams in Arkansas
can be on both, neither, or only one of these navigability lists.
A determination of Arkansas navigability can only be made by the courts or
through legislation.
The river bed of a non-navigable stream is presumed to belong to the
adjacent property owner (called a riparian owner). This boundary line could
change with the movement of the stream – adding or taking away from the
total property of a streamside landowner.
The river bed up to the high water mark of a navigable stream belongs to the
State of Arkansas to hold in trust for the public.
Many times a determination of state navigability is not made until the issue
is raised in the courts.
The term “navigability” is confusing because it has been defined differently
by federal and state entities.
High Water Mark:
The place where action of water is so usual in
ordinary years that it marks upon the soil of the bed a
character distinct from that of the banks with respect to the
vegetation and soil. The high watermark can be very difficult to
determine where extensive streambank erosion exists. The
highwater mark is NOT the highest point that a river reaches
during flood stage.
Legal
Definition of “Traditional Navigable Waters”
A federal determination of navigability signifies federal jurisdiction for
regulation. This is not related to the state’s determination of
navigability, which signifies ownership.
What if a stream is on the federal navigable waterways list but not the
state navigable waterways list?
The streamside owners would still own the streambed as determined by their
deed, but the federal government would have the right to regulate the
landowner’s actions in the streambed.
Under Section 10 of the Rivers and Harbors Act of1899, the Corps of
Engineers has jurisdiction for work done in waterways determined to be
navigable by the federal government. Their definition of navigability is
based on historic commercial use.
This list is only used to define the Corps’ jurisdiction under Section 10and
does not impact ownership rights.
Public Use of Arkansas Waterways
If a waterway has been deemed navigable by the State of Arkansas, the public
has the right to use it up to the high water mark.
However, the public cannot cross private land in order to gain access to the
waterway.
Public access on a waterway, whether navigable or not, is supported through
Arkansas property law.
Prescriptive Easement:
If a thoroughfare has been used continuously for seven years – with the
knowledge but not permission of the owner, the public’s legal right to
access could be protected through a prescriptive easement.
Prescriptive easements traditionally extend only to the thoroughfare itself,
and not to surrounding lands.
Generally the judge granting the prescriptive easement defines the terms of
use (how and where specifically the public could use the stream corridor)
For more information contact the Arkansas Attorney General.
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