Jake Miller
The question of whether river banks are public property in Washington state is a complex one. While some people assume that river beds in Washington are public land from the high-water line down, and that landowners do not own this portion of the land, this is not always the case. Washington generally uses the federal test of navigability to determine navigable waters within the state, as the state owns the beds of all navigable rivers. This means that if a river is deemed navigable, then the public has a right to use it, regardless of whether the river bank is privately owned. However, Washington does not recognize a right to portage across private land, and it is important to respect landowners' property rights.
| Characteristics | Values |
|---|---|
| Rivers that are navigable for title purposes | The beds and banks are public trust land up to the ordinary high water line |
| Rivers that are not navigable for title purposes | Can be privately owned |
| Rivers with adjacent landowners | Washington did not give water rights to adjacent landowners |
| Rivers with homes on their banks | The river bottom is considered public land |
| Rivers with rocks | The rocks are public property |
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What You'll Learn
The public can access rivers for fishing and navigation
In Washington state, the public can access rivers for fishing and navigation. However, there is some confusion regarding the specific laws and what constitutes public and private property.
The U.S. Supreme Court has held that rivers and streams navigable for "title" purposes are owned by the states. "Title" refers to ownership, meaning that the land underlying these waters is conserved for public benefit, even when the river or stream passes through private land. This means that the public has a right to access these waters for fishing and navigation up to the "ordinary high water line". The determination of whether a river is navigable is based on physical navigability, and no official designation is necessary.
In Washington, this means that if you are on the rocks in a river, you are likely within the median high water mark and on public property. However, it is important to note that local law enforcement has the final say on the ground, and there may be variations in how these laws are interpreted and enforced. Additionally, some local ordinances may supersede state laws regarding high water marks and navigation.
It is also worth noting that, while the public can access rivers for fishing and navigation, they must do so in a respectful and least intrusive manner, as private landowners retain certain rights. The right to portage, for example, must be accomplished in a way that minimally interferes with private property.
Washington state agencies, such as the Washington Department of Fish & Wildlife, also provide resources and manage water access areas to promote recreational fishing and conservation efforts.
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Landowners do not own the portion of the river that is the 'high water mark'
In the United States, riparian rights give landowners access and usage of flowing bodies of water, such as rivers and streams. These rights are regulated by states, with each municipality enforcing provisions on water access and usage. While landowners with riparian rights have unrestricted access to the waters, they only own the land up to the median high-water mark. This means that if a river is running through private land, members of the public can access and use the river as long as they can get onto it from public land.
In Washington state, river beds are considered public land from the high-water line down, and landowners do not own this portion of the land. This means that individuals can walk along the river bank and fish through private land as long as they access the river from public land. This is supported by a 1954 court case, where a canoeist was not considered to be trespassing when he canoed through private land and waded on the stream bed to fish. The court recognised a "public right of access for fishing and navigation to the point of the high water mark".
The high-water mark is determined by the ordinary water level, unaffected by drought or other factors that may cause the water level to fluctuate. The U.S. Supreme Court has held that the beds and banks of rivers and streams that are navigable for title purposes are owned by the states. This means that the land below navigable waters is the property of the state and is subject to public land laws and public trust rights.
It is important to note that the definition of "navigable waters" can vary and may include waters that are only physically navigable during certain times of the year. Additionally, the determination of whether a river is navigable for title purposes is a matter of federal law, even though it determines state ownership.
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Rivers that are navigable are owned by the state
Rivers that are navigable are considered public trust land and are owned by the state. This means that the public has a right of access for fishing and navigation to the point of the high-water mark. The public can cross private property to portage around barriers in the water, but this must be done in the least intrusive way possible. This is true even if the river runs through private land, as long as you can access it from public land, you can walk the bank and fish.
In Washington state, a river is considered navigable if it is capable of navigation for general commercial purposes. This includes floating shingle bolts down the river, but does not include small creeks that can only accommodate a fishing skiff or gunning canoe at high water. A stream that had only been used for transportation by small boats for pleasure was determined to be non-navigable. Washington courts have interpreted this test liberally.
The state of Washington recognizes sections of the following rivers as whitewater river sections: Green, Klickitat, Methow, Sauk, Skagit, Suiattle, Tieton, Skykomish, Wenatchee, and White Salmon. It also recognizes all sections of rivers with at least one class III rapid or greater as whitewater river sections. The State Scenic River system was established to recognize the outstanding natural, scenic, historic, ecological, and recreational values of rivers, and to protect and preserve their natural character.
It is important to note that the law on the ground is whatever local law enforcement says it is, so it is always good to be prepared to educate yourself and others respectfully, and to not be a trespasser on lands above the high-water mark.
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The public can cross private property to portage around barriers
In Washington State, the public can cross private property to portage around barriers. This is supported by a court case from 1954, in which a canoeist was found not to be trespassing when he pulled his canoe over a landowner's fence, continued canoeing on the stream through private land, pulled the canoe up on the bank to get around a logjam, and then waded in the streambed to fish before continuing downstream.
The courts recognised a "public right of access for fishing and navigation to the point of the high-water mark". This means that the public can access any navigable rivers, regardless of state or private ownership of the riverbeds and banks. The right to portage must be accomplished in the least intrusive manner possible.
The high-water mark is an important consideration when discussing public access to waterways. Generally, if you are on the rocks in Washington State, you are within the median high-water mark and therefore on public property. However, this can be difficult to navigate during certain times of the year when rivers are high. It is also important to note that a waterway can be navigable even if it is called a "stream" or "creek" and is only physically navigable during the boating season.
In addition to the high-water mark, other factors can impact public access to waterways in Washington State. For example, conservation easements may restrict the development of land in rural or environmentally sensitive areas to preserve its natural state. Public rights of way also allow the public and government to access private land for roads, sidewalks, or other public infrastructure. These rights of way can have significant implications for property use and are essential considerations when buying or selling property.
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The state can buy access rights to rivers
In Washington state, the law on river access is complex and often disputed. The general understanding is that riverbeds are public land up to the median high-water mark, and landowners do not own this portion of the land. This means that if a river runs through private land, anyone can access it from public land and walk the riverbank, even if it is on private property.
The right of passage or right of way is an important concept in understanding river access laws. While the public has a right of passage to use sidewalks and roads, even if they are on private property, this right is not always clear when it comes to rivers. The law on the ground is often determined by local law enforcement, and it is important to educate oneself on the specific laws and regulations in the area.
The State of Washington has been buying access rights to rivers for the last decade or so. This is done through direct purchases or through regional water banks that facilitate the transfer of water rights. This is an important development in managing water resources and ensuring public access to rivers.
It is worth noting that the concept of navigable rivers is crucial in determining public access rights. The U.S. Supreme Court has held that the beds and banks of rivers and streams that are navigable for title purposes are owned by the states. "Title" here refers to ownership, and the court's decision is based on the history of the original thirteen states taking sovereignty of their land from the British after the American Revolution. This decision also applies to the states that entered the union later, under the Equal Footing Doctrine.
In summary, the state can and does buy access rights to rivers in Washington state, and this has implications for public access and water resource management. However, it is important to be aware of local laws and regulations regarding river access and to respect the rights of landowners.
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Frequently asked questions
River banks in Washington state are considered public property if the river is deemed navigable.
A navigable river is one that can be travelled on using any type of boat, including canoes, kayaks and rafts.
Non-navigable rivers can be privately owned.
Washington does not recognise a right to portage across private land. However, courts have recognised a public right of access for fishing and navigation to the point of the high-water mark.
