In Arkansas ownership of the streambed itself (the publics right to use stream corridors for recreation) and the right of the federal government to regulate activities on a stream is based in part on the question of navigability.
In 1980, the Arkansas Supreme Court decided that the definition of navigability includes recreational use with its decision in State v. McIlroy (268 Ark.277).
Under this decision, rivers that are used for recreational use, for even part of the year during normal flow, can be considered navigable.
If a stream is given federal navigability status, the federal government claims the right to regulate activities on that stream up to the high water mark.
If a stream is given state navigability status, the state of Arkansas actually owns the streambed up to the high water mark. Streams in Arkansas can be on both, neither, or only one of these navigability lists.
A determination of Arkansas navigability can only be made by the courts or through legislation.
The river bed of a non-navigable stream is presumed to belong to the adjacent property owner (called a riparian owner). This boundary line could change with the movement of the stream adding or taking away from the total property of a streamside landowner.
The river bed up to the high water mark of a navigable stream belongs to the State of Arkansas to hold in trust for the public.
Many times a determination of state navigability is not made until the issue is raised in the courts.
The term navigability is confusing because it has been defined differently by federal and state entities.
High Water Mark:
The place where action of water is so usual in ordinary years that it marks upon the soil of the bed a character distinct from that of the banks with respect to the vegetation and soil. The high watermark can be very difficult to determine where extensive streambank erosion exists. The highwater mark is NOT the highest point that a river reaches during flood stage.
Legal Definition of Traditional Navigable Waters
A federal determination of navigability signifies federal jurisdiction for regulation. This is not related to the states determination of navigability, which signifies ownership.
What if a stream is on the federal navigable waterways list but not the state navigable waterways list?
The streamside owners would still own the streambed as determined by their deed, but the federal government would have the right to regulate the landowners actions in the streambed.
Under Section 10 of the Rivers and Harbors Act of1899, the Corps of Engineers has jurisdiction for work done in waterways determined to be navigable by the federal government. Their definition of navigability is based on historic commercial use.
This list is only used to define the Corps jurisdiction under Section 10and does not impact ownership rights.
Public Use of Arkansas Waterways
If a waterway has been deemed navigable by the State of Arkansas, the public has the right to use it up to the high water mark. However, the public cannot cross private land in order to gain access to the waterway. Public access on a waterway, whether navigable or not, is supported through Arkansas property law.
Prescriptive Easement:
If a thoroughfare has been used continuously for seven years with the knowledge but not permission of the owner, the publics legal right to access could be protected through a prescriptive easement.
Prescriptive easements traditionally extend only to the thoroughfare itself, and not to surrounding lands.
Generally the judge granting the prescriptive easement defines the terms of use (how and where specifically the public could use the stream corridor)
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