How Illinois Water Access Law Measures Up to Other States
In discussing HB 4708, the IPC is frequently asked how we measure up to other states. The short answer for paddlers: poorly.
Which is why IPC supports the passage of HB 4708 and are asking YOU to help us pass this important legislation!
HB 4708 clarifies that “paddlers have access to and use of all Illinois public waters, defined as any segment of a lake, river, or stream capable of supporting use by commercial or recreational watercraft for a substantial part of the year.”
ALL of our neighboring states follow some version of the public trust doctrine, by which the public holds all of the states’ waterways “in trust” and paddlers therefore have full access to all waterways that can support paddlecraft.
NOTE: State names provide links to the relevant state law, court opinion, or official state information.
The Public Trust Doctrine applies to all navigable waters, which are defined as any waterway on which it is possible to float a canoe or small watercraft at some time during the year.
Riparian owners have sole access to the dry land when the river is below the Ordinary High Water Mark (OHWM) but the public can still use the water, and take brief excursions on land to get around obstacles
A navigable river is one “which can support a vessel capable of carrying one or more persons during a total of a six-month period in one out of every ten years.” Most rivers and larger creeks in Iowa, including non-meandered rivers, are considered navigable.
Indiana rivers that have been designated by statute as “navigable” are open to paddlers. “Navigable” rivers and their river beds are held in trust by the State of Indiana and can be used by the public. On streams that don’t have a navigable designation, the bed remains in private ownership, but the public may use the surface of the stream for paddling.
On public, non-navigable streams, property lines are the same as they are on private, non-navigable streams. The difference is that although you are on private property, you have a right to use public, non-navigable streams for fishing, wading, or boating as long as you stay within the stream bed.
Plenty of other states have similar laws:
In California, “All water flowing in any natural channel is hereby declared to be public water of the State and subject to appropriation.” if you can float a canoe or kayak, it’s navigable. People v Mack Cal. Water Code § 1201
In Idaho, essentially, the question of navigability is just if the waterbody is suitable for public use.
In Minnesota, it seems as though the public gets riparian rights to a body of water when there is public access/a public road that goes up against the body of water.
In Mississippi, “Navigable in fact” extends to recreational activities if you can access the water without trespassing.
In Tennessee If it can be technically used for commercial purposes, even if it isn’t, then it’s navigable.
In Nevada, according to the “Water belongs to the public act”, “[t]he water of all sources of water supply within the boundaries of the State whether above or beneath the surface of the ground, belongs to the public.” Nev. Rev. Stat. § 533.025 (2021).
In Ohio, the ground is owned by landowners, but the water is public property.
Oregon follows the Public Use Doctrine.
In Arkansas, the Public can access water if it is navigable for title reasons or floatable according to the public use doctrine or both.
Finally, in a very important case, the New Mexico Supreme Court recently ruled in favor of the rights of paddlers for water access over the rights of private property owners. However, in this case, landowners appealed the outcome to the United States Supreme Court, which declined to take up the case, which reaffirms the New Mexico State Supreme Court decision. Stay tuned for more on this in our next blog on HB 4708!
In the meantime, contact YOUR House Member and ask them to sign on as a sponsor of HB4708.
This summary was created with much thanks to the research support of the Legislative Office of Rep. Janet Yang-Rohr, House sponsor of HB 4708, Jim Johannsen, Director of Land Conservation, Joe Daviess Conservation Foundation, and Christopher Sweet, Scholarly Communications Librarian. Illinois Wesleyan University.