Some US landowners putting barbed wire across rivers

[CHLChris]

Since one cannot dam a river (since downstream folks have as much right to the flowing water as upstream folks), it stands to reason that this implies that flowing water is owned by no single person, but is a public resource. It would stand to reason, then, that every animal who can flow with that river (fishes or humans) should have equal access to the river water.

The banks on the sides, on the other hand, seem like they could and should be own-able, at least theoretically. Even if one owns both banks of a river, perhaps even if one owns the riverbed, itself, the water that flows on top should NOT be own-able and should be equal access for wildlife and humans, alike.

Am I just naive?

 

[mkwerx]

Since one cannot damn a river (since downstream folks have as much right to the flowing water as upstream folks), it stands to reason that this implies that flowing water is owned by no single person, but is a public resource. It would stand to reason, then, that every animal who can flow with that river (fishes or humans) should have equal access to the river water.

The banks on the sides, on the other hand, seem like they could and should be own-able, at least theoretically. Even if one owns both banks of a river, perhaps even if one owns the riverbed, itself, the water that flows on top should NOT be own-able and should be equal access for wildlife and humans, alike.

Am I just naive?

You have just described Oregon's laws, essentially. But not all states are like that. And in some instances, you can in fact dam a "river" - usually creeks or smaller rivers, not big ones like the Willamette - but it is possible to dam a flowing water privately. Lots of low head dams throughout the country that are private, usually this creates a pool of standing water and still spills water over the top, other dams pass water through release gates. I know of a local pond that was made by damming a creek in that exact manner. The creek still flows - but the land owner has a year round pond.

 

[bbbass]

Since one cannot damn a river (since downstream folks have as much right to the flowing water as upstream folks), it stands to reason that this implies that flowing water is owned by no single person, but is a public resource. It would stand to reason, then, that every animal who can flow with that river (fishes or humans) should have equal access to the river water.

The banks on the sides, on the other hand, seem like they could and should be own-able, at least theoretically. Even if one owns both banks of a river, perhaps even if one owns the riverbed, itself, the water that flows on top should NOT be own-able and should be equal access for wildlife and humans, alike.

Am I just naive?

Yes, landowners and others may file for "Water Rights". These type of allowances allow for the removal of water from a waterway described on the document. Typically it specifies a certain amount of water. This type of right has only peripherally dealt with access... in other words nobody can come on your property w/o your permission for the removal of water. Upstreamers have no right to blockade/dam the water source to the point where they have excess water, in effect removing more water from the resource than their permit allows. Downstreamers can be screwed in that the upstream permit holders can remove their allotted amount without regard to whether enough is left for the downstream users.

Not all waters are public. Not all waters are federal. This tends to be more of a state resource for smaller rivers and streams. Ie, a river like the Deschutes never leaves the state of Oregon. Because the D River has public accessways, the passage cannot be legally blocked, but it is less and issue of who owns the water than it is who owns the banks. The water is owned jointly by the State of Oregon, and because it is a navigable waterway, the feds.

 

[Provincial]

In Oregon, "Navigable" is a legal term. There is a list of Navigable waterways, which means that they have been determined to have carried people or goods in the past. These have been recognized by legislative action or court rulings. Only some streaches of certain streams have been designated Navigable, usually the lower sections.

Access to those waterways is legally authorized. Access to any others has no established legal basis.

 

[bbbass]

In Oregon, "Navigable" is a legal term. There is a list of Navigable waterways, which means that they have been determined to have carried people or goods in the past. These have been recognized by legislative action or court rulings. Only some streaches of certain streams have been designated Navigable, usually the lower sections.

Access to those waterways is legally authorized. Access to any others has no established legal basis.

Agreed. However, I was speaking of "navigable" as it pertains to Federal jurisdiction.

Navigable Waters

Also found in: Dictionary, Thesaurus, Financial, Idioms.
Navigable Waters
Waters that provide a channel for commerce and transportation of people and goods.

Under U.S. law, bodies of water are distinguished according to their use. The distinction is particularly important in the case of so-called navigable waters, which are used for business or transportation. Jurisdiction over navigable waters belongs to the federal government rather than states or municipalities. The federal government can determine how the waters are used, by whom, and under what conditions. It also has the power to alter the waters, such as by dredging or building dams. Generally a state or private property owner who is inconvenienced by such work has no remedy against the federal government unless state or private property itself is taken; if such property is taken, the laws of Eminent Domain would apply, which may lead to compensation for the landowner.


The basis for federal jurisdiction over navigable waters lies in the U.S. Constitution. Since the early nineteenth century, the U.S. Supreme Court has held that the Commerce Clause (Article 1, Section 8) gives the federal government extensive authority to regulate interstate commerce. This view originated in 1824 in the landmark case of gibbons v. ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23. In Gibbons, the Court was faced with deciding whether to give precedence to a state or federal law for the licensing of vessels. It ruled that navigation of vessels in and out of the ports of the nation is a form of interstate commerce and thus federal law must take precedence. This decision led to the contemporary exercise of broad federal power over navigable waters, and in countless other areas of interstate commerce.


In practical terms federal regulation of navigable waters takes many forms. One area of this regulation covers matters of transportation and commerce: for example, rules governing the licensing of ships and the dumping of waste. A second area applies to the alteration of the navigable waters, which is strictly controlled by federal law. The Rivers and Harbors Appropriation Act of 1899 forbids building any unauthorized obstruction to the nation's navigable waters and gives enforcement powers to the U.S. Army Corps of Engineers. A third area of regulation involves Workers' Compensation claims. The concept of navigable waters is important in claims made under the Longshore and Harbor Workers' Compensation Act of 1988 (33 U.S.C.A. §§ 901–950). The act provides that employers are liable for injuries to sailors that occur upon navigable waters of the United States. Navigable Waters

 

[RVTECH]

The homeowners in Sunriver no doubt hate it when flotillas of boats, tubes, canoes etc. float the Deschutes through 'their' property in the summer! Heck I am one of them (floater that is!)

 

[John Brown]

Two words.

Wire.
Cutters.

 

[DirectDrive]

This is becoming even more of an issue as smaller 'toons and squirt boats proliferate.
They can run tiny streams that the larger DB's cannot.

 

[Provincial]

Agreed. However, I was speaking of "navigable" as it pertains to Federal jurisdiction.

Navigable Waters

Also found in: Dictionary, Thesaurus, Financial, Idioms.
Navigable Waters
Waters that provide a channel for commerce and transportation of people and goods.

Under U.S. law, bodies of water are distinguished according to their use. The distinction is particularly important in the case of so-called navigable waters, which are used for business or transportation. Jurisdiction over navigable waters belongs to the federal government rather than states or municipalities. The federal government can determine how the waters are used, by whom, and under what conditions. It also has the power to alter the waters, such as by dredging or building dams. Generally a state or private property owner who is inconvenienced by such work has no remedy against the federal government unless state or private property itself is taken; if such property is taken, the laws of Eminent Domain would apply, which may lead to compensation for the landowner.


The basis for federal jurisdiction over navigable waters lies in the U.S. Constitution. Since the early nineteenth century, the U.S. Supreme Court has held that the Commerce Clause (Article 1, Section 8) gives the federal government extensive authority to regulate interstate commerce. This view originated in 1824 in the landmark case of gibbons v. ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23. In Gibbons, the Court was faced with deciding whether to give precedence to a state or federal law for the licensing of vessels. It ruled that navigation of vessels in and out of the ports of the nation is a form of interstate commerce and thus federal law must take precedence. This decision led to the contemporary exercise of broad federal power over navigable waters, and in countless other areas of interstate commerce.


In practical terms federal regulation of navigable waters takes many forms. One area of this regulation covers matters of transportation and commerce: for example, rules governing the licensing of ships and the dumping of waste. A second area applies to the alteration of the navigable waters, which is strictly controlled by federal law. The Rivers and Harbors Appropriation Act of 1899 forbids building any unauthorized obstruction to the nation's navigable waters and gives enforcement powers to the U.S. Army Corps of Engineers. A third area of regulation involves Workers' Compensation claims. The concept of navigable waters is important in claims made under the Longshore and Harbor Workers' Compensation Act of 1988 (33 U.S.C.A. §§ 901–950). The act provides that employers are liable for injuries to sailors that occur upon navigable waters of the United States. Navigable Waters

So where is the list of Federal Navigable waters?

As I stated earlier, Oregon has a list. I assume that the Feds would agree with that list. All other waters would be potentially "navigable" but until a claim is made and addressed by a court or whatever bureauracy, it is just that - potentially.

There are those who would claim that if one person, one time floated down a section of stream, that stream would then be "navigable" and open to public access.

"Waters that provide a channel for commerce and transportation of people and goods." implies an ongoing traffic with economic benefit. Floating the Deschutes can be argued to meet that standard. Many of the floats are by businesses charging customers for the trip. This meets the Federal standard of "commerce." In practice, I would doubt that the Feds pay attention to any stream not carrying commercial freight or scheduled round-trip passenger service. Someone demanding year-round recreational access to a stream that isn't used for economic purpose doesn't meet that standard.

Recreational access is the current bone of contention. It is an issue that is becoming contoversial as urban populations press the use of private property for recreation in order to enjoy the outdoors and that impact lowers the quality of life of rural residents.

Weyerhaeuser closed its property to public access partially (the bean counters also decided that they could make some money charging for access rights) in response to this trend. Property damage from vandalism, carelessness, and sheer impact from numbers of users was the big concern.

Recreational users trampling the riparian zone, strewing garbage and human waste is becoming more common. This environmental stress will be more of a determining factor than private property rights, and will eventually lead to restricted access. The bad apples always spoil the whole barrel.

 

[Ura-Ki]

Every one is pretty much on track. My set up has two dams and holding ponds, it is also an origional home stead with grist mill and full water rights. I am allowed to hold back 40% mean flow year round, and cannot shut off any more then the 40%! My water rights also guarantee that a low flow year does not require I release any water down stream, regardless of low flow status! Hikers and fly fishermen do have the right to access with permission IF they wish to enter the stream via my property, but cannot access it with out permission in writing signed and dated! Further more, I cannot block access above or below my property, and can not stop or harass as long as they do not leave the stream bed! It is not navigable waters, but is a natural resource, and contains trout, with the catch being my dams must provide up stream passage for them! The small dam has a mean head hight of 8 feet, and fish ladder that is unregulated, and head hight must be maintained to the bottom of the opening of the ladder, the second dam is 24 feet head hight, and is governed the same, with the exception of flood control and emergency spillage, but the bottom penstock is considered passable for the fish if I have to drop the head! We get mainly bookies, and a few Golden trout, some can get into the 3 pound range and are good fun to catch, fish and game require that caught fish not be removed from the water, same as other protected species, so it's catch and release only and barbless hooks! Where things get interesting is Power production, I cannot have a hydro electric power set up in stream, but a law dated 1904 allows power production via the water wheel from the mill, so I skirt the requirements via that law, and it has not been challenged in court yet!

 

[ob1]

. I know of a local pond that was made by damming a creek in that exact manner. The creek still flows - but the land owner has a year round pond.

Well, I don't think there is a creek running along the Oregon / California border, but if one suddenly appeared , I'd be up for running barbed wire along it.

 

[ma96782]

Question.....
LOL.....to all those claiming to own the water that flows over their land.

If/when that water should somehow cause damage (or injury) down stream.....then the aggrieved, should be able to sue YOU? Does that sound FAIR? Or, is it now GOD's water.

And, YES, if you cause a flow problem....YOU should be accountable. LOL.....but we all know, that in some cases, some pockets ain't deep enough.

Aloha, Mark

 

[Ura-Ki]

In my case, because I have flood control, I am responsable for maintaining reasonable flow, how ever, during a flood event, I am not liable for any damage down stream, unless a dam collapsed, and even then, subject to investigation of the cause! It does get tricky during the spring melt, allowing the access over the dam while maintaining enough hold back for the Water rights needs! I habe set minimums I require, and as long as those are met, I'm not liable further then that! If we had a super drought, things get ugly, as I have to maintain flow, even at the expand a of my rights, which is why I maintain two resavors!

 

[Provincial]

Question.....
LOL.....to all those claiming to own the water that flows over their land.

If/when that water should somehow cause damage (or injury) down stream.....then the aggrieved, should be able to sue YOU? Does that sound FAIR? Or, is it now GOD's water.

And, YES, if you cause a flow problem....YOU should be accountable. LOL.....but we all know, that in some cases, some pockets ain't deep enough.

Aloha, Mark

In Oregon, the State owns the water, no matter where it is or flows. If the water causes damage to you or your property, guess what? The State has no responsibility. Just like damage from the game animals that the State owns.

 

[bbbass]

@Provincial

My point was that Federal Law prohibits obstruction of "navigable" waters as defined within the law. Is that a bad thing? I don't understand the focus on a "list".

 

[Argonaut]

@Provincial

My point was that Federal Law prohibits obstruction of "navigable" waters as defined within the law. Is that a bad thing? I don't understand the focus on a "list".

The definition of "navigable" has been very fluid over the last decades. Obama tried to say that even a seasonal stream or pond is navigable and under federal control. Off course, that created a huge uproar with landowners and farmers all over the country. I don't remember how that was resolved but the uproar has subsided. There was a family in the Priest lake area that wanted to build on a lot that had a seasonal Creek running through it and sued because the Fed would not allow it. As I remember, they won there case in the Supreme Court, were awarded damages and allowed to build. It took many years and hundreds of thousand dollars in lawyer's fees.

 

[Ura-Ki]

Folks are warned with signge all around my property not to enter, even with water way rights access, it's not me they need to worry about, it's my some time visiting neighbor Grizzly who has taken a liking to us and the property, and gets mighty upset if disturbed! Trust me, you don't want 900+ pound 6 year old Grizz on your case about your fishing "His" stream or picking "His" berries!

 

[bbbass]

The definition of "navigable" has been very fluid over the last decades. Obama tried to say that even a seasonal stream or pond is navigable and under federal control. Off course, that created a huge uproar with landowners and farmers all over the country. I don't remember how that was resolved but the uproar has subsided. There was a family in the Priest lake area that wanted to build on a lot that had a seasonal Creek running through it and sued because the Fed would not allow it. As I remember, they won there case in the Supreme Court, were awarded damages and allowed to build. It took many years and hundreds of thousand dollars in lawyer's fees.

Thanx man!!!

 

[44magman]

Who owns water? The US landowners putting barbed wire across rivers

I don't know what is right or wrong here. I'm posting this simply for awareness, and for those who might own land with a waterway or those considering a property purchase with a waterway.

I own a piece of land with a nice salmon steelhead river on it. I am constantly having to educate fisherman and kayakers that the public only owns to the high water mark on NAVIGABLE rivers. Not all rivers are navigable

 

[Provincial]

As 44magman says, many people (especially fishermen/fisherwomen) seem to think that every stream with fish in it is "Navigable." Only a limited number are, and that is why the "list" is important.

With population growth and urbanization pressure on the accessible fishing streams has increased, and people try to force access on more areas.