State lawmakers are trying to challenge property rights along Georgia’s waterways

The Flint River flows quickly over the rocky shallows that provide an inviting habitat for schooling bass, the state’s official river game fish.

But more recently this river has become a spawning ground of a completely different kind.

An Upson County landowner’s attempt to claim exclusive fishing rights on a popular stretch of river has brought long-simmering tensions near boiling point and sparked a new debate in Georgia over public access to the great outdoors. That has left property owners, some with multi-generational roots, pitted against anglers, paddlers and others with traditions firmly rooted in this river.

Fishing is big business in Georgia, where about 1.1 million people have fishing licenses, and the state pours taxpayer money into fishing crews, building boat ramps and conducting surveys and research on Georgia fisheries. Fishing and hunting rights are so important here that they are enshrined in the state constitution.

A view of the Flint River from the Flat Shoals Bridge in Pike County. Jill Nolin/Georgia recorder

“Fishing is really important to Georgia. It’s truly a part of who we are as a people and a state,” said Scott Robinson, chief of the state Department of Natural Resources’ fisheries division.

The state settled with the Upson County landowner earlier this year, alarming public access advocates who feared other landowners would try to follow suit. The issue landed before state lawmakers just as the 2023 session was ending, prompting them to do so Maneuvers at the end of the session to adopt a law to protect public access to fishing on waterways deemed navigable.

But another landowner has since filed a lawsuit in Talbot County seeking exclusive fishing rights to a stretch of river he says is unnavigable. The state has requested that the proceedings be dismissed.

As the issue makes its way through the courts, state lawmakers are also holding a series of meetings on the issue this month. And last week, landowners, outdoor enthusiasts, environmentalists, elected officials and others gathered at Towerhouse Farm Brewery in the town of Gay to speak out about who controls access to the river, particularly for fishing.

“We’re the group that filed the lawsuit that started all of this, and I think that maybe makes me the bad guy in the room,” said Ben Brewton, who is part of the ownership group that sued the state last fall, to the legislators.

Brewton said his father bought the property 50 years ago because he believed the land had exclusive rights to the fishing hotspot.

“Ultimately it’s about whether Georgia, a pro-business state that the governor is very proud of, becomes a state that sees something someone has as desirable and decides to pass a law to take it away from them.” from this person. There is a reputation for governments to do this,” Brewton said.

Are there any further changes coming?

The new law states that the state became the owner of all navigable riverbeds when Georgia became a state in 1788 and that it is the “trustee of the rights of its peoples to use and enjoy all navigable streams suitable for fishing, hunting, passage, Shipping, Commerce and Transportation Under the Common Law Public Trust Doctrine.”

And while it also acknowledges that in some cases a private party may own a streambed, such as where the property has long been approved by the state, the law now states that these public rights to the flowing stream continue to exist.

State Rep. James Burchett, a Waycross Republican and study committee chairman, listens to testimony during a meeting in the town of Gay. Jill Nolin/Georgia recorder

As Governor Brian Kemp signed the measure into law in May he published a special issue opinion He defended his support and countered some of the concerns raised with his office. He also instructed critics of the law to advocate for further changes in the study committee.

State Rep. Beth Camp, a Republican from Concord whose district includes Yellow Jacket Shoals, was one of dozens of lawmakers who voted at the last minute against the bill, which passed the House by a vote of 93-75. although he easily approved the bill in the Senate.

Camp, who is not on the study committee, said she voted no because she didn’t have a chance to read the bill first. Since then, Camp says she has heard strong opinions from both sides of the issue in her district, and she said she would like to see lawmakers clear up any remaining confusion when they return to Atlanta in January.

“I think the committee will have a lot of work to do, but there has to be a balance between the rights of property owners and the public interest,” she said.

The next study committee meeting is scheduled for Thursday in Habersham County, where the The trout in the Soque River are the big draw and are at the center of tension there. Additional meetings are scheduled for Oct. 18 in Fannin County and Oct. 25 in Bulloch County.

State Rep. James Burchett, a Waycross Republican who chairs the panel, said “clarity” could help curb the confusion.

“There aren’t many people who want to extend public interest to these waters. They want to know where I can and can’t fish, and the property owners want the same thing. So that’s what I’m working on right now,” Burchett said after the first meeting.

However, any final recommendations are a decision of the committee, he said. The committee is made up primarily of influential members of the House of Representatives, including five committee chairs and a group chair of the governor. Burchett also serves as the majority leader.

“What is navigable and what is not?”

The bill passed this year applied only to navigable streams, but advocates and others argue that it is not always clear what is considered “navigable” in Georgia.

And this distinction is important when it comes to the rights of a property owner. If a stream is deemed non-navigable, the owner can claim exclusive fishing rights up to the middle of the waterway. If they own both sides, they own the entire streambed. However, if the waterway is considered navigable, the landowner’s rights end at low water.

However, at this point the problem becomes unclear. Federal and state definitions vary, with Georgia’s guidelines based largely on a few court decisions, attorney general opinions, historical documents and an 1863 definition.

“We must remember that this was decided by the legislature in the middle of the war, when many men were absent and 30 or 40% of the population was in captivity. So I’m not sure it has any validity at all to modern life,” said Walker Chandler, a Pike County resident whose concerns have centered largely on ensuring public boating access on the state’s rivers.

Robinson, of the state Department of Natural Resources, acknowledged the challenge of identifying some streams.

He said the state also considers factors such as the width of the stream — typically 30 feet or more — and the amount of water flowing. For example, he said the state could confidently build a boat ramp that would allow more than 400 cubic feet of water to flow through it every second. But between 200 and 400 cubic feet of flowing water is a gray area.

“Basically, any location where we build a boat ramp is considered public access if we build a boat ramp downstream. Otherwise, it would not be appropriate for us to put a boat ramp there,” Robinson said.

April Lipscomb, a senior attorney at the Southern Environmental Law Center, said this year’s new law represents the state’s attempt to “determine the scope of the public trust doctrine” in Georgia, which she said the U.S. Supreme Court has ruled on. is a matter for the states.

Lipscomb told lawmakers in Gay that the new law “corrected” previous court rulings that failed to consider the state of Georgia’s public fiduciary duty.

“I think the biggest challenge going forward will be figuring out which rivers and streams in Georgia are navigable, what testing applies, what that testing looks like, and how to ensure that anglers have easy access to that information.” She said.

The Southern Environmental Law Center also filed a motion to intervene in the Talbot County case last week on behalf of two conservation groups, the Georgia Wildlife Federation and Flint Riverkeeper, hoping to help the state defend new fisheries protections passed this year support .

Gordon Rogers, executive director of the Flint Riverkeeper, argued that the entire Flint River should be considered navigable but called on the panel to provide a “path to clarity.”

“We are counting on this committee to make strong recommendations to the House of Representatives to establish a path to clarity, a process through which all Georgians – waterfront property owners, anglers, paddlers, commercial guides, outfitters, everyone – get to one point “We know where we can and cannot fish. Where we can get through and where we can’t,” he said. “What is navigable and what is not?”

“I understand that people want to enjoy the river, but we just have to figure out how to do it,” said Gay Mayor Ruth Nash. “I believe that people need to learn to respect rivers and the private property along the river.” Jill Nolin/Georgia Recorder