Recommendations leave Georgians’ boating freedom in jeopardy

ATHENS — Recent recommendations made by a Georgia House of Representatives study committee have raised concerns among the state’s river enthusiasts who say that, if acted upon by the full legislature, the recommendations could greatly curtail Georgians’ longstanding freedom to recreate on Georgia’s rivers and streams.

Tasked with clarifying where Georgians can legally fish on the state’s freshwater streams, the House Study Committee on Fishing Access to Freshwater Resources issued recommendations in November calling on the state to determine and delineate the “navigability” of each of Georgia’s rivers and streams based on a restrictive definition of navigability that dates to 1863 and is geared toward supporting barge traffic, not paddling.

This process could conflate navigability, which determines the ownership of the river bottom, with the common law “right of passage” that entitles the public to travel any waterways that will float a boat.

Many of Georgia’s streams that boaters regularly float and fish could be deemed “non-navigable” under the committee’s recommended definition, ranging from popular whitewater runs in north Georgia to peaceful blackwater streams in south Georgia. Even popular paddling destinations on portions of the Chattahoochee, Chestatee and Etowah rivers could be at risk, along with nearly all mountain rivers and small and medium-sized streams throughout the state.

“Right of passage has been enshrined in Georgia law since the 1800s,” Dan MacIntyre, an attorney and Georgia Canoeing Association river protection committee chair, said. “The public has a right of passage on Georgia’s streams that is separate from other public recreation rights like fishing — which more directly hinge on navigability findings — but that distinction has not always been recognized by courts and is absent in the committee’s report.”

“Since Georgia’s inception, when our streams were the state’s highways, we have enjoyed a long-established right to pass down these waterways in boats of all sizes,” Andrea White, southeastern chair for the American Canoe Association, said. “In trying to clarify fishing access, the study committee is using an outdated law to define navigability based on land ownership and freight that ignores the way we use Georgia’s waterways today for recreation.

“There is both Georgia legal precedent and more modern ‘pleasure craft; tests in neighboring states that take recreation into consideration that would be a more appropriate legal test than navigability.”

River enthusiasts point to North Carolina and South Carolina, where state laws evolved from a similar origin as Georgia’s to protect public boating use today. In both states, citizens have the right to travel by pleasure craft, including canoes and kayaks, on any waters that will float such vessels.

“This system has worked extremely well to support both a robust river recreation economy and culture, as well as private property rights, with a relatively clear delineation between the two,” Kevin Colburn, national stewardship director with American Whitewater, said.

The right of passage on Georgia’s streams was established by the Georgia Supreme Court in 1849 when it determined that the public could travel down any water that supported “passage,” regardless of any navigability test involving freight.

But since the codification of the definition of “navigability” in 1863, rights of passage have been conflated with navigability. In 1997, the Georgia Supreme Court ruled that Ichawaynochaway Creek in Baker County was closed to the public based on the state’s 1863 navigability definition. Likewise, in a similar case also in 1997, the Georgia Supreme Court ruled that canoeists did not have the right to pass down Armuchee Creek in Chattooga and Floyd counties because the court deemed it “not a navigable stream.”

The impact on the Georgia outdoor recreation economy, quality of life, and public health impacts of the committee’s recommendations and resulting recreational losses could be staggering. Georgia River Network estimates that there are some 1 million paddlers in Georgia. Those paddlers support more than 70 small businesses that provide canoe, kayak, paddleboard, raft and tube rentals and guide services on the state’s rivers. The U.S. Bureau of Economic Analysis estimates that boating and fishing on the state’s waterways contributed $762.7 million of added value to Georgia’s economy in 2021.

“The General Assembly should act to protect the public’s right to fish, but they also must protect the public’s right to enjoy traveling the state’s rivers by boat,” Rena Ann Peck, Georgia River Network’s executive director, said. “We have a robust culture of boating on Georgia’s rivers and streams, and we need to continue to build that river recreation economy, not take it away from our citizens and ecotourism industry.”

Georgia River Network, American Whitewater, American Canoe Association and Georgia Canoeing Association are encouraging Georgians to communicate with their local legislators about this issue. Individuals can contact their legislators via an email action alert at https://protectgeorgia.org/#/393.

Georgia River Network is a statewide nonprofit river recreation and conservation group with the mission to connect people with and protect Georgia’s rivers. Georgia River Network is the state’s nonprofit partner promoting the Georgia Water Trails Network and maintains the Georgia River Guide free mobile app.

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Georgia River Network