Recreational Use of the Surface and Bed of Navigable and Non-Navigable Waterways
There is considerable confusion as to the consequences of a determination that a waterway is or is not navigable. One area of confusion may be broadly described as rights to public usage. A common question is whether a boater or fisherman may anchor or stand on the bed of a navigable river or lake or whether public rights are confined to usage of the water surface.
Since ownership of the bed and the minerals beneath the bed are in the state, the public may typically use both the surface and the bed for ordinary recreational activities. As will be discussed later, these activities may be limited or prohibited where they would impede navigation or pose a hazard to public safety or the environment. Rights to restrict usage rest with the federal or state government, however, and not with adjoining landowners.
Where a waterway is nonnavigable, the public typically does not have rights to use either the water surface or the bed for recreational activities. Those rights rest with the adjoining landowner or landowners. A person who enters a non-navigable stream or lake without the permission of the landowner may commit a trespass.
Recreational Use of Public Freshwater Lakes and Prescriptive Easements
There are important exceptions to the general rule that non-navigable waterways are not available for public usage. One arises where a landowner or landowners acquiesce in public usage for at least 20 consecutive years. In this instance, a prescriptive easement may arise by which the public acquires the legal right to use the non-navigable waterway. The existence of a prescriptive easement is dependent upon action by a civil court and would be as extensive or limited as decreed by the court. A prescriptive easement could be limited to a right to use only the water surface.
Another important exception is occasioned by what is sometimes called the "Indiana Lakes Preservation Act."12 This statutory chapter establishes public rights on Indiana's "public freshwater lakes," a term defined to include "a lake that has been used by the public with the acquiescence of a riparian owner."13 The term does not include Lake Michigan, Wolf Lake, or Lake George (Hammond).14
The state holds all public freshwater lakes for the use of its citizens for recreational purposes. Included among recreational purposes are fishing, boating, and swimming.15 The courts have treated public freshwater lakes very similarly to the treatment accorded to navigable lakes, although the Indiana Lakes Preservation Act does not speak to bed ownership.16
Most of Indiana's public freshwater lakes are located in the northern one-quarter of the state. Several are located in the Lake Michigan watershed of Northwest Indiana. For Lake County, these include Fancher Lake and Lake George (Hobart). In Porter County, included are Canada Lake, Flint Lake, Long Lake, Loomis Lake, and Wauhob Lake. Swede Lake in LaPorte County is considered a public freshwater lake. In the St. Joseph River watershed of St. Joseph County are Pinhook Park Lake and St. Mary's Lake.17
For a more thorough discussion of the Indiana Lakes Preservation Act, see McInerny, Ground Water and Surface Water Quantity Issues: Emergencies and Damnum Absque Injuria, THE LOST EPISODES OF ENVIRONMENTAL LAW, Indiana Continuing Legal Education Forum (1993).
Physical Boundaries of Navigable Waterways: Ordinary High Watermark
Another area of confusion is what are the physical boundaries of a navigable waterway. The navigable character of a river or lake is not restricted to its channel, but some conflict has existed in Indiana as to what is the boundary of jurisdiction. A decision prior to The Daniel Ball and Kivett suggested state ownership extended only to the low water mark of the Ohio River.18
The persuasive authority is seemingly that the boundary of jurisdiction for a navigable waterway is its "ordinary high water mark." A commentator for the Governor's Water Resource Study Commission noted in 1980 that "federal cases have consistently held that the appropriate line of demarcation (in the absence of a contrary state boundary) is the high water mark, and Kivett declared that federal law must be applied to such issues." 19
The Indiana General Assembly used "ordinary high watermark" as the delineation of navigable waterways in a temporary statute governing utility line crossings.20 The statute also defined the term "ordinary high watermark" to be "the line on the shore of a waterway that is: (1) established by the fluctuations of water; and (2) indicated by physical characteristics such as the following: (A) A clear and natural line impressed on the bank. (B) Shelving. (C) Changes in the character of the soil. (D) The destruction of terrestrial vegetation. (E) The presence of litter or debris." 21
A very similar definition for the ordinary high watermark of a navigable waterway is used by the U.S. Army Corps and has been adopted by rule by the Indiana Natural Resources Commission. The latter definition also sets the ordinary high watermark for Lake Michigan at 581.5 feet I.G.L.D., 1985 (582.252 feet N.G.V.D., 1929). The same elevation is used for the southern shore of Lake Michigan by the Army Corps.22
Reduced to the most basic terms, the physical area of a navigable river or lake is what is included within its ordinary high watermark. Because water levels raise and lower periodically, the actual water's edge at any particular time is likely to be inside or outside the legal boundaries of navigability. The practical result is that sandbars or portions of the banks of a river during a low-water period are likely to be within the ordinary high watermark and public domain. Similarly, beaches along Lake Michigan which emerge during low-water periods are also public domain. Conversely, a person who boats outside the banks of a flooding river or stream is likely to commit a trespass, and beach areas above elevation 581.5 feet, I.G.L.D. (1985) along Lake Michigan are the property of the riparian owner.
Access to and from Riparian Lands along Navigable Waterways
Still another area of confusion is what are property rights with respect to piers, wharves, and other improvements. The public generally has no right to use a private pier. Similarly, the navigable character of a waterway implies no public right to enter upon or through lands which border the waterway. An exception is recognized so that a boater may lawfully use lands or facilities adjacent to a navigable waterway if the boater is responding to an emergency.23 As stated in the adage, a boater may seek "any port in a storm."
Clean Water Act Jurisdiction
A primary culprit to public confusion concerning navigable waters is the Clean Water Act. Most notably, the pollution discharge permit section (Section 402) and the dredge and fill permit section (Section 404) purport to regulate activities involving "navigable waters."24 This subject frequently arises in the context of federal wetlands regulation. Yet the real basis for jurisdiction under the Clean Water Act is not navigability but rather the Commerce Clause. As stated by the United States Supreme Court,25 "Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statues and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed 'navigable' under the classical understanding of that term." The U.S. Army Corps is not required to demonstrate legal navigability as a constitutional basis for wetlands regulation but may rather found that authority upon the Commerce Clause.
A serious discussion of the Commerce Clause is well beyond this effort, but its application is expansive. Congress has full constitutional authority to legislate what it sees as the national interests for commerce among the states. The commerce power is primarily a power to regulate.26 "[T]he power of Congress over interstate commerce is 'the power to regulate; that is, to prescribe the rule by which commerce is governed. The power...is complete in itself, may be exercised to the utmost extent, and acknowledges no limitations, other than those prescribed in the constitution.'"27
Congress has used the Commerce Clause as its constitutional basis for the regulation of waterways which clearly are not navigable. A good illustration is the Wild and Scenic Rivers Act.28 A commentator has observed, in fact, that "the 'wilder' the river, the more likely that it is not navigable."
Congress was not required to limit its Clean Water Act jurisdiction to those waterways which are "navigable" as the term is ordinarily used, and it did not do so. Reference to navigability in the Clean Water Act is an unnecessary and probably unfortunate legislative construction.
Public Trust Doctrine
A topic of increasing interest is the "public trust doctrine." This doctrine finds its modern genesis29 in an 1892 decision of the U.S. Supreme Court, Illinois Cent. R.R. v. Illinois.30 The Court concluded that states could transfer some of the lands held as navigable waters, either to allow improvements to navigation, or where there was no substantial impairment of the public interest, in the remaining lands and waters. The Court determined, however, the state of Illinois could not grant a private company 1,000 acres of Lake Michigan, including the entire outer harbor of Chicago, because a grant "of all the lands under the navigable waters of a State has never been adjudged to be within the legislative power."
Generally, application of the public trust doctrine is viewed as governed by state law and not federal law. The Supreme Court itself characterized Illinois Central as an application of Illinois law in Appleby v. City of New York.31 State courts typically view the decision as having considerable persuasive authority but not as being binding32.
The Indiana Supreme Court has not directly addressed application of the public trust doctrine. The Indiana Court of Appeals has upheld an injunction against an Illinois corporation, which was removing sand and gravel from the bed of Lake Michigan, on the basis that the lake bed was held in trust for the benefit of the state's citizens.33 By rule, the Department of Natural Resources must consider the public trust doctrine before issuing a license to place a structure or to place or remove material from a navigable waterway. 34
Similarly, the Indiana General Assembly has declared that the "public of Indiana has a vested right" to the "preservation, protection, and enjoyment of all the public freshwater lakes of Indiana in their present state" and the "use of the public freshwater lakes for recreational purposes." The state "holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes." 35
The Natural Resources Commission has found this reference "amounts to a statutorily created public trust doctrine in which the DNR is the trustee" of public freshwater lakes.36 The Commission reflected in a more recent decision that the public trust doctrine is designed to protect a "broad public right to the waters of a public freshwater lake," and in order to fill a portion of a lake, 'very special circumstances' must be present." At the same time, the Commission recognized implementation of the public trust doctrine is not an absolute. Ordinarily, a riparian owner may place wharves and piers in aid of commerce, and a structure does not violate the public trust doctrine if it is placed for a suitable public purpose. 37
Numerous publications have addressed the public trust doctrine and its possible applications. See, for example, Slade, Kehoe, and Stahl, PUTTING THE PUBLIC TRUST DOCTRINE TO WORK, 2nd Ed. (Coastal States Organization, Inc., 1997).
Changing Boundaries of Navigable Waters
There is also a good deal of confusion concerning the transitory nature of the boundaries of navigable waterways and title to adjacent lands. Generally, when boundaries move as a result of slow, natural modifications of the shoreline, title boundaries also move with the delineation at the ordinary high water mark. The opposite may result where boundaries move suddenly or as a result of human intervention. These issues are discussed more fully in the chapter Coastal Dynamics; see, particularly, "The Legal Response; Common Law Treatment."
