Navigability a concept as fluid as water

LORRINE THOMPSON THE OLYMPIAN

OLYMPIA -- A map of state rivers and lakes hangs in Steven Ivey's office at the Department of Natural Resources.

Some version of the map has existed for decades, perhaps for more than a century. But the map is still labeled as a "draft" in red ink, and it always will be, Ivey says.

That's because the map is an assessment of the navigability of state rivers and lakes, and whether a water body is navigable is a fluid notion at best.

"It's a living and breathing document. It's always going to change," says Ivey, an aquatic land surveyor.

Unless a court has stamped a river as navigable or not, the determination can change at any time.

Why does it matter?

Because navigability is the cornerstone for deciding who can own a river or lake and its shorelines.

If it's navigable, then the state owns it and it's a public body -- except for some shorelands, which the state can sell.

If it's not navigable, then the body of water and its shorelines can be privately owned. That means individuals can own all the land involved, including the beds under water. The water itself, however, is public property. Sort of.

Ownership of rivers, lakes and tidelands in Washington, as well as public rights to access and use of water bodies, is a murky area of law, not unlike a flooding river clouded with sediment.

More than 110 years after statehood, Washington land and aquatic experts still examine individual conflicts and situations to figure out who can do what with and around a waterway.

Ivey is a specialist in aquatic land ownership, so he fields questions from confused state residents wondering where they can and can't be when it comes to rivers and lakes.

"I get calls from recreational boaters and fishermen all the time," he said.

A common question is: When am I trespassing?

The safest answer: On any gravel bar in the center of a water body, you're OK. And on the gravel or rocky shores of a public river, up to the line of vegetation, you're OK.

The answer is a little hazier on non-navigable rivers, Ivey says. "That's still a gray area."

It's best not to get off a boat or raft or inner tube and tromp around any property if you don't know where you are.

That's why the river guides who work for River Recreation Inc. in Lynnwood know the rivers they work as if map lines were drawn in the water, says the company's owner, Don Martin.

The guides know where they can put rafts in the water and where they can be taken out, get permission from private property owners involved, include owners on insurance policies, and often pay fees at public river sites.

"It's not as cut and dried as people think," Martin said. "You have to really be in tune with what's going on on the river."

What's navigable?

In England, well before some of its residents turned into American colonists, the monarch claimed ownership of any navigable waterways for use in the public interest.

The waterways were needed for travel, commerce, food and water.

American colonists followed suit when setting up their own governments. When Washington became a state in 1889, its constitution laid the same claim to all navigable waters.

But what is "navigable"?

That is still being debated, but some general rules include:

- A water body capable of supporting commerce with vessels typically used for commerce. A river that can support canoes, for instance, would not necessarily qualify.

- Water bodies that supported commerce at the time of statehood, even if they don't now in their current conditions.

- Water that is "tidally influenced," such as Puget Sound and rivers that flow into the ocean.

- Navigability must be sustainable in the river's natural condition. The determination isn't about whether navigability can be created with artificial means.

State aquatic land experts use a number of different resources to assess rivers and lakes, including historic documents, physical measurements, water capacity and tidal influences.

However, the only permanent way to determine a river or lake's navigability is by going to court.

"Very, very few" rivers and lakes have been adjudicated in Washington, Ivey said.

'Public highway'

Washington rivers that aren't large enough to be fully navigable have a second shot at some kind of public determination.

They can be considered "public highways," capable of being used for special commercial purposes such as floating logs or travel by small tugboats.

The definition was created because of Washington's forest industry, Ivey said.

Although DNR has not assessed which state rivers could be considered public highways, the definition could open up some public use rights, Ivey said.

Public trust doctrine

Recently, a development company purchased rights from the state to a tide flat in Skagit County and proposed a large Venetian village development -- complete with water channels between buildings.

"The state stopped them," Ivey said.

Why?

Because of something called the "public trust doctrine."

This also traces back to old English law and likely well beyond that. It says that the public has a right and an interest in natural water systems because they support life, commerce and travel.

It is similar to the public claim to navigable waters, but more far-reaching.

The public trust doctrine applies to all natural water bodies, regardless of navigability, and it's why people can't own the water or the fish and wildlife in it.

It's also why dozens of local, state and federal government offices exist to oversee and protect clean water, fish and wildlife habitat, navigability of waterways, and more.

The Venetian village idea was axed because it could affect the water system and encroached on public rights.

"That's what started the shoreline management act in many ways," Ivey said. "That's where you get into the debate about public access to water and tide lands."

For instance, although private property owners can't own the water and wildlife, the state has not created a law that says boaters and rafters have a definite right to use the water.

Montana has done so, but "Washington has not gone that extra step," Ivey said. "Right now it's all philosophy and theory."

About the only certain thing is that members of the public cannot trespass on private property to get to a river or lake. They have to find a public access point.

Living with public trust

Dennis Boos has lived on the Deschutes River for about 10 years, and he's gotten used to people floating or boating down the river in sunny weather, sometimes stopping on his bank for a rest or snack.

From his home, "I can tell by their body language if I'm going to find garbage down there," he said. "I can also tell if I'm going to go down and find it spotless."

It's something Boos understands is part of living on a river. "I can't kick people off the river. Nobody owns the river," he said.

His only disappointment is finding litter and broken bottles on his river bank.

"Why would someone break bottles where they swim?" he said.

But the river makes up for that worry in other ways.

"Even on a real rainy, miserable day, I'll put my coat on and go down and walk by the river," Boos said. "It's peaceful. Water is always that way."

Mike Pettit, who lives at river mile 11 on the Deschutes, has gone a little further than Boos to protect himself from trespassers.

Pettit has called police when boaters and other river users have docked on his property and begun to trash the area.

"It took us two or three years to get it straightened out," said Pettit, who ended up in court on some trespassing cases but finds things more peaceful now.

But Pettit and his family also have been happy to let neighbors use their property for dipping into the river, which belongs to everyone, he said.

Someone floating the river is "kind of like a hot air balloon flying over," he said.

Both Pettit and Boos believe county officials made the right decision in stepping away from a large logjam that is upriver from their properties.

Unless the jam is threatening public property, it's up to river property owners to battle and deal with the consequences of natural river actions, they say.

The property owners have a right to save their homes and land, but "I don't think taxpayer dollars should be used for it," Pettit said.

Boos supports his neighbors' efforts to clear the jam themselves, but would rather not see government interfering with the jam, he said.

"I think the river will refigure out what it wants to do," he said. "It always does."

On the Web:

- Department of Natural Resources

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