Wa State River Access Laws

[boneaddict]

Anyone in the know on this.   This was basically half the reason I dont fish as much as I used to.  Back in the day on the Methow, Klickitat  and the Wenatchee rivers steelheading or trout fishing was a blast.   Then as people bought land and built their homes on the rivers, it got touch and go as folks "took Ownership" of the river.    I've heard many different things stated such as high water mark, can drift, but feet cant touch the ground etc.    Are there any straighforward RCWs or rules one can quote when the sheriff comes a knockin' ?   

[HntnFsh]

Rules vary from river to river. Some you can access to high water mark.
Others your feet can't touch any part of the ground.
I don't know how to find out which rules apply to each river.

[HighGrouseHunt]

Washington’s water access laws are pretty murky compared to states like Montana where they have pretty clearly articulated what is and is not allowed (despite recent efforts by well heeled newcomers to unwind those pretty solid water access laws).

From what I have been able to find, if a waterway is defined as “navigable” in Washington, then you should be completely legal to fish it via wading or floating provided that you can legally access the river without trespassing across private land, and you do not touch the bank above the normal high-water line.

This is actually laid out in the state constitution: “The state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes: Provided, that this Section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state.”

The definition of a “navigable stream” is where things start to fall apart. Most interpretations seem to come from a 1903 Washington Supreme Court case where it was defined as “a stream is navigable for shingle bolts ”. A “shingle bolt” seems to mean 8’ cedar logs in this case. While you would think that would mean most larger streams in this state would be considered “navigable” there seem to be an awful lot of “exceptions” despite this fairly simple definition. From what I have found, most of those came about well after the 1903 case, and most of exceptions don’t seem like they have ever really been tested in court.

For example in Northeast Washington, most of the Kettle River has been designated as “Non-navigable” despite clearly meeting all reasonable interpretations of navigability under Washington law. Apparently there was some coalition of landowners who got together and lobbied state legislators to have this specific river deemed “non-navigable”. Fortunately this designation currently seems to be largely ignored by landowners and and authorities, and the public has access to the river essentially out of the goodness of landowners hearts, rather than via the state law that typically public access. The danger is that this could change in an instant if a landowner decided that they no longer wanted people Floating through their property, or stopping on a sandbar in the middle of the river.

In my mind, hunters and fishermen would be well served to work with other recreationists such as paddlers, to try and get the state to iron out some of the discrepancies in our stream access laws, while also providing better clarification on what is and what is not allowed and where.

[HereDuckyDucky]

Look into the public trust doctrine. I wrote an article on it in law school.

RW

[Bronson]

Washington’s water access laws are pretty murky compared to states like Montana where they have pretty clearly articulated what is and is not allowed (despite recent efforts by well heeled newcomers to unwind those pretty solid water access laws).

From what I have been able to find, if a waterway is defined as “navigable” in Washington, then you should be completely legal to fish it via wading or floating provided that you can legally access the river without trespassing across private land, and you do not touch the bank above the normal high-water line.

This is actually laid out in the state constitution: “The state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes: Provided, that this Section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state.”

The definition of a “navigable stream” is where things start to fall apart. Most interpretations seem to come from a 1903 Washington Supreme Court case where it was defined as “a stream is navigable for shingle bolts ”. A “shingle bolt” seems to mean 8’ cedar logs in this case. While you would think that would mean most larger streams in this state would be considered “navigable” there seem to be an awful lot of “exceptions” despite this fairly simple definition. From what I have found, most of those came about well after the 1903 case, and most of exceptions don’t seem like they have ever really been tested in court.

For example in Northeast Washington, most of the Kettle River has been designated as “Non-navigable” despite clearly meeting all reasonable interpretations of navigability under Washington law. Apparently there was some coalition of landowners who got together and lobbied state legislators to have this specific river deemed “non-navigable”. Fortunately this designation currently seems to be largely ignored by landowners and and authorities, and the public has access to the river essentially out of the goodness of landowners hearts, rather than via the state law that typically public access. The danger is that this could change in an instant if a landowner decided that they no longer wanted people Floating through their property, or stopping on a sandbar in the middle of the river.

In my mind, hunters and fishermen would be well served to work with other recreationists such as paddlers, to try and get the state to iron out some of the discrepancies in our stream access laws, while also providing better clarification on what is and what is not allowed and where.

That's not completely true. There are plenty of areas that have private ownership within tidal water and streambeds, and it's recorded on property documents that are filed with the counties.

For the OP, it generally goes by county but every property could be different. It's a pain. But general rule of thumb is that if you're floating you're ok as long as you don't touch the bottom. Once your or your boat does, it could be trespassing (if property boundaries apply). That goes for stillwater and rivers.

[Cylvertip]

I would check the county auditor's web sight.  There should be land ownership maps that will show if the particular area is public or private.  OnX and Garmin Base Camp get their info from that info and should show it too.  Counties may. Have additional info on high water, etc.

[jackelope]

WA Dept of Ecology definition of the high water mark:

“That mark that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or at it may change thereafter in accordance with permits issued by a local government or the Department of Ecology.”

More interesting info here if you’re bored.

https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1825&context=sulr

[jackelope]

This was just brought up in Duvall, which is why I have all this stuff handy. Also these discussions apparently get a little spicy at times when you live in a river valley town

[Scruffy]

WA Dept of Ecology definition of the high water mark:

“That mark that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or at it may change thereafter in accordance with permits issued by a local government or the Department of Ecology.”

More interesting info here if you’re bored.

https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1825&context=sulr

I am glad I don't have riverfront property but my neighbors do.  Looking on the County Property maps my neighbors property lines would extend almost across the river.  Let's say the county says they have 1 acre of land.  Since I moved in 25 yrs ago the river shifted taking over half of the neighbors property.  So if the State declares ownership within the banks and they been paying taxes on 1 acre of land which half is river now, sounds to me they been over taxed for property the State declares as theirs now.

Since I moved to my house and seeing how a river shifts I will never buy close to a river again.

[salmosalar]

Anyone in the know on this.   This was basically half the reason I dont fish as much as I used to.  Back in the day on the Methow, Klickitat  and the Wenatchee rivers steelheading or trout fishing was a blast.   Then as people bought land and built their homes on the rivers, it got touch and go as folks "took Ownership" of the river.    I've heard many different things stated such as high water mark, can drift, but feet cant touch the ground etc.    Are there any straighforward RCWs or rules one can quote when the sheriff comes a knockin' ?

In "navigable" rivers, you can wade to ordinary high water mark. Tidewaters can be owned privately in WA state. We are in the very small minority of states where tidewater are private.

The closest that I ever came to being shot was on the Klick. I had waded up from an access and the gentleman threatened me as I was "trespassing". I was not, however, dead is and in the right is still dead, so I fished somewhere else.

[Macs B]

Just to futher muddy the water of this discussion...see what I did there?

[duckmen1]

Hey Macs B thanks for posting the Waterfront Titles. That will be a good read.

[blackdog]

There are some properties that were privately owned pre statehood and some tidelands were sold for oyster lands under the Bush and Callow acts.

[Gringo31]

I feel sorry for the deputy who gets this call from the irate "landowner".  He has to respond and has no clue on how to address these things as they're all different.  What a mess.

Great question and great feedback 

[jackelope]

Anyone in the know on this.   This was basically half the reason I dont fish as much as I used to.  Back in the day on the Methow, Klickitat  and the Wenatchee rivers steelheading or trout fishing was a blast.   Then as people bought land and built their homes on the rivers, it got touch and go as folks "took Ownership" of the river.    I've heard many different things stated such as high water mark, can drift, but feet cant touch the ground etc.    Are there any straighforward RCWs or rules one can quote when the sheriff comes a knockin' ?

In "navigable" rivers, you can wade to ordinary high water mark. Tidewaters can be owned privately in WA state. We are in the very small minority of states where tidewater are private.

The closest that I ever came to being shot was on the Klick. I had waded up from an access and the gentleman threatened me as I was "trespassing". I was not, however, dead is and in the right is still dead, so I fished somewhere else.

According to what I posted above yours, it looks like you're wrong.

[Bareback]

The Klick is classifieds as non navigable…… and yes, there are some cranky land owners on that river, tired of trespassers.

[jackelope]

The Klick is classifieds as non navigable…… and yes, there are some cranky land owners on that river, tired of trespassers.

The Klick is navigable according to the US gov. Bottom of page 5:

https://boat.wa.gov/wp-content/uploads/2021/07/FederalNavigableWaters.pdf

[NWBrute]

The Klick is only considered navigable one mile from the mouth

[NWBrute]

here is more info regarding shoreline access https://apps.ecology.wa.gov/publications/parts/1106010part9.pdf

[jeffro]

I’ve never had a problem, anywhere, in any western state
I’ve been approached.
But maybe my chest rig .44 mag changed their attitude

[CAMPMEAT]

Look at who wrote the laws. An appointed lefty or a voted in person !!

[fireweed]

And the answer is...confusion.
I have researched this for years.  Here is a good resource: https://ecology.wa.gov/Water-Shorelines/Shoreline-coastal-management/Shoreline-coastal-planning/Shoreline-laws-rules-and-cases/Public-Trust-Doctrine

Shoreline access is a bit like corner crossing--everyone has an opinion but nobody really knows.  From what I have researched, only the COURTS can decide if a stream is navigable or not, and each stream is decided on an individual basis based on how/if it was used for commerce at the date of statehood (like floating logs).  Deeds and titles that talk about owning to the center of the river or the bottom of the river DO NOT necessarily mean the public cannot walk below the high water mark.  The public trust doctrine gives the public a right "like an easement" to use the beds and shores of navigable waters even if the title is privately held.  The government never really had the right to sell the public trust interest in using the waterway.  For private tidelands the courts have not definitively decided if the public can walk below the high water mark (especially if fishing) since the state constitution talks about navigation and fishing.

[boneaddict]

Holy moly!   Thank you for all of the great discussion. 

[salmosalar]

The Klick is classifieds as non navigable…… and yes, there are some cranky land owners on that river, tired of trespassers.

Those landowners are using the government entities determination. The first 1 mile has been classified as a federally navigable river for the purpose of Army Corps of Engineers jurisdiction. I am sure that this is what is being cited. The classification ending 1 mile up likely stems from that being the location that ACE cares to have jurisdiction. That location can change as well. A good explanation can be found here: https://www.nap.usace.army.mil/Portals/39/docs/regulatory/regs/33cfr329.pdf

The ACE determination of navigability is separate from any Clean Water Act definition. It is also separate for access purposes, which is a state by state issue.

The state interpretation of it being navigable is the one that matters. Generally, that has been the standard of whether a bolt of shingles can be floated down it. Washington state courts have been very inclusive with regards to what water bodies are navigable. Clearly the Klick is navigable by state standards. In general, if you can float it, it is likely to meet the Wa standard for being navigable and you can access up to the ordinary high water mark.

The Ecology guidance posted with regards to tidelands is quite different from what I have ever known. I will dive in to that a bit more when I have time.

[blackveltbowhunter]

Whenever these threads come up I am reminded of the movie The Patriot, when Mel Gibsons character says " Tell me why I should trade one tyrant a thousand miles away, for three thousand tyrants one mile away." I suppose the answer is there is always an opportunity to become one of the tyrants. 

[Bareback]

The Klick is classifieds as non navigable…… and yes, there are some cranky land owners on that river, tired of trespassers.

Those landowners are using the government entities determination. The first 1 mile has been classified as a federally navigable river for the purpose of Army Corps of Engineers jurisdiction. I am sure that this is what is being cited. The classification ending 1 mile up likely stems from that being the location that ACE cares to have jurisdiction. That location can change as well. A good explanation can be found here: https://www.nap.usace.army.mil/Portals/39/docs/regulatory/regs/33cfr329.pdf

The ACE determination of navigability is separate from any Clean Water Act definition. It is also separate for access purposes, which is a state by state issue.

The state interpretation of it being navigable is the one that matters. Generally, that has been the standard of whether a bolt of shingles can be floated down it. Washington state courts have been very inclusive with regards to what water bodies are navigable. Clearly the Klick is navigable by state standards. In general, if you can float it, it is likely to meet the Wa standard for being navigable and you can access up to the ordinary high water mark.

The Ecology guidance posted with regards to tidelands is quite different from what I have ever known. I will dive in to that a bit more when I have time.

25 years ago I may have been in a similar confrontation with a land owner on the Klick. I crossed the river in a tail out. Walked up river to fish a hole and had some guy come out of the bushes like grizzly sow. I just left to avoid conflict. Later date in that drainage I ran into an LEO and asked for confirmation on trespass, which was (paraphrased), an owner owns to the middle of the river and I could be ticketed for wading and even anchoring off shore of private land.

Unfortunately, there’s some much grey area, the definition is up to interpretation of law enforcement and judges. Both of those scenarios would only cost me money.

[fireweed]

And remember rivers MOVE.  At statehood the beds and shores are owned outright by the state.  If a river moves, then the state can own high and dry land and a private individual can own the bottom of the river.  This does not mean, however, that the private landowner can kick people off the riverbed or shoreline.  Once while fishing where the WDFW owned one side and a private owned the other the river moved way over onto the WDFW side.  The private landowner, who claimed his deed said he owned to the center of the river, was now claiming ownership of about 10 more acres, and the ability to kick out anglers.  Neither of which was true!

[85yota]

Very interesting as my brother, a west side fowl hunter has been looking into this, this is what the gamie or sherif told him.. high water mark, is public. Now on long flat sections that could be 100 yards of bank, or 10 feet if its steep. He said if the river changes through someone's land, they own the land locked property but high water mark rules still apply and he can duck/geese hunt on the corresponding banks.. Leo said they get tons of call every year from angry homeowners when guns start blazing. Leo was very confident in this, but this trend seems to have opened a can of worms

[jackelope]

Very interesting as my brother, a west side fowl hunter has been looking into this, this is what the gamie or sherif told him.. high water mark, is public. Now on long flat sections that could be 100 yards of bank, or 10 feet if its steep. He said if the river changes through someone's land, they own the land locked property but high water mark rules still apply and he can duck/geese hunt on the corresponding banks.. Leo said they get tons of call every year from angry homeowners when guns start blazing. Leo was very confident in this, but this trend seems to have opened a can of worms

This is only true to a degree. With this, you could make an argument that the entire Snoqualmie valley floor is below the high water mark.

[85yota]

Very interesting as my brother, a west side fowl hunter has been looking into this, this is what the gamie or sherif told him.. high water mark, is public. Now on long flat sections that could be 100 yards of bank, or 10 feet if its steep. He said if the river changes through someone's land, they own the land locked property but high water mark rules still apply and he can duck/geese hunt on the corresponding banks.. Leo said they get tons of call every year from angry homeowners when guns start blazing. Leo was very confident in this, but this trend seems to have opened a can of worms

This is only true to a degree. With this, you could make an argument that the entire Snoqualmie valley floor is below the high water mark.

No that is flood water, and clearly private property, high water mark, from what I understand without googling, is essentially the high river water line, under normal conditions, not flood. And in that particular drainage it's clear where the top of the bank is, and what would be considered flooding.. but I understand your point

[ducks4days]

Very interesting as my brother, a west side fowl hunter has been looking into this, this is what the gamie or sherif told him.. high water mark, is public. Now on long flat sections that could be 100 yards of bank, or 10 feet if its steep. He said if the river changes through someone's land, they own the land locked property but high water mark rules still apply and he can duck/geese hunt on the corresponding banks.. Leo said they get tons of call every year from angry homeowners when guns start blazing. Leo was very confident in this, but this trend seems to have opened a can of worms

This is only true to a degree. With this, you could make an argument that the entire Snoqualmie valley floor is below the high water mark.

No that is flood water, and clearly private property, high water mark, from what I understand without googling, is essentially the high river water line, under normal conditions, not flood. And in that particular drainage it's clear where the top of the bank is, and what would be considered flooding.. but I understand your point

So if the valley floods and your canoe floats 5 feet over the normal edge of the river bank that is trespassing?

[furbearer365]

I know a guy that has Toutle River frontage. When he bought the land, the river was on the other side, but over time, has changed and the main channel runs on his side. Since he bought the land when it was in the other side, he said he technically owns the land on the bank, under the river, and the bank on the other side. So anyone who floats the river, by law, they would be trespassing on his land if they got off on the bank that he owns. And all of this possible due to the fact that tide lines and such played no role when the land was purchased

[blackdog]

I don’t believe he is correct.

[Buckjunkie]

I am an appraiser and have appraised many properties in Grays Harbor and Pierce County alongside rivers. I also own property on the Cowlitz near Packwood.

I have not researched whether the river was navigable, but legal descriptions vary from place to place. In some cases the parcel boundary stops at the ordinary high water mark (or where it once was).  In some cases the parcel description extends to the centerline of the river, so as the river shifts course you lose or gain property. In other cases, as in my property in Packwood, it is a fixed point.

onX shows the parcel boundaries. Not sure if this helps as I only fish larger rivers and and always from a boat.

[furbearer365]

I don’t believe he is correct.

Why, because it's just easier not to believe it or do you know something he doesnt??  I'm not saying OnX is legally bound or is the end all be all, but his property boundary lines seem to support his belief. The lines cross the river and extend well past the "tidelline" bank on the other side

[blackdog]

His property is his property, assuming the river is navigable under the “public trust doctrine “ the river remains navigable.

[blackdog]

https://www.perc.org/2019/06/19/the-limits-of-the-public-trust-doctrine/

[fireweed]

I know a guy that has Toutle River frontage. When he bought the land, the river was on the other side, but over time, has changed and the main channel runs on his side. Since he bought the land when it was in the other side, he said he technically owns the land on the bank, under the river, and the bank on the other side. So anyone who floats the river, by law, they would be trespassing on his land if they got off on the bank that he owns. And all of this possible due to the fact that tide lines and such played no role when the land was purchased

First, the Toutle has to be found to be navigable by a court of law.  Given that at statehood logs and bolts were floated its entire length (from Spirit Lake to the Cowlitz) a court will probably rule it navigable.  That means the beds and shores at statehood were/are owned by the state as they lay in 1889.  If the river moved, then, it must be decided if it moved fast or slow.  Given the Toutle's erratic nature it is more likely that it moved fast in this case.  That means that it is quite likely that the public land is now high and dry and the water is flowing over private land now. BUT that makes no difference as far as navigation and fisheries are concerned, and "probably" recreation including touching the bottom.  ("probably" comes from the court ruling).  The Washington supreme court found that the public trust doctrine applies and acts "like an easement" that goes with the water, even if the river moves, the private landowner can technically own the bottom, but the public trust easement follows along with the water.  This was decided on Lake Chelan, as the water was raised and lowered over private land.

From the Dept of Ecology shoreline management handbook:

The waters of the state are a public resource owned by and available to all citizens
equally for the purposes of navigation, conducting commerce, fishing, recreation and
similar uses.
• Private ownership of the underlying land that the doctrine applies to does not invalidate
this trust

(Search online for the Washington State Supreme
Court cases Caminiti v. Boyle, 107 Wn. 2d 662, 732 P.2d 989; and Wilbour v. Gallagher, 77
Wn.2d 306, 462 P.2d 232 (1969)

[jackelope]

Ya. Just because you own both sides doesn’t mean you own the river.  River being the bottom or the water.