American Whitewater
Delaware Navigability Report
Summary
Delaware's right of passage on waterways turns on a state test of navigability that requires usability as a highway for commerce. Delaware Administrative Code has defined such usability broadly to include recreational transport. Where navigable, the public may boat and fish.
State Test of Navigability
Delaware Administrative Code has defined navigable water as a “waterway capable of having been or being used for transport of useful commerce, including waterways which become navigable as the result of alteration such as dredging.”1) While a Delaware court expressly rejected a pleasure boating test2), Delaware regulations have interpreted the transport of useful commerce to include “the transportation of goods or persons by water including, but not limited to, recreational transport, such as canoeing, rafting, sailing, tubing, water-skiing, motor boating or windsurfing.”3)
Extent of Public Rights in Navigable and Non-Navigable Rivers
The owner of a streambed does not have an exclusive right in the fishery. Even where a navigable stream has a privately owned bottom, the public may both fish and boat. Since fishing is included in the navigation easement, the easement may well include other incidents of navigation, such as scouting and portaging. Indeed, the Delaware Supreme Court found that the public has a right of navigation, including the right to fish, in extensions of navigable waters, such as those covering privately owned shores on navigable streams.4)
Miscellaneous
Delaware does not take a completely hands-off approach to managing streams. The state claims jurisdiction over subaqueous, privately-owned lands. Additionally, Delaware requires permission and/or a permit for projects that make use of subaqueous lands if the project might infringe upon the rights of the public.5)