American Whitewater

American Whitewater

Maryland Navigability Report

Summary

Only streams that are tidal and capable of being boated, including small rowboats and possibly kayaks, are defined as navigable and open to the public. What rights, if any, a boater has on streams that are not influenced by the tide has not been conclusively determined.

State Test of Navigability

Maryland adheres to the ancient common law rule that navigable streams are those streams subject to the ebb and flow of the tide.¹⁾ A second test, whether the stream is navigable-in-fact by small boats such as rowboats, might also be employed by a court as an additional restriction on determining whether a tidal stream is navigable.²⁾ The state owns nearly all the navigable waters and the bottoms of navigable streams in the state (with the exception of certain colonial land grants), and the public has the right to use the shore of navigable streams up to the ordinary high water mark.³⁾ The navigable waters of Maryland comprise 2,429 square miles or 20% of the State's total surface area, and the shoreline runs for 3,190 miles.⁴⁾

Extent of Public Rights in Navigable and Non-Navigable Rivers

The public has the right to recreate in waters subject to the ebb and flow of the tide. This right extends to the ordinary high water mark. Of course, under the federal navigational servitude,⁵⁾ the public has the right of navigation in waters navigable in fact that are not subject to the tide. What other rights the public has in waters not subject to the tide, if any, has not yet been determined. The state maintains a recreational system of water trails for kayaking and canoeing and state parks with navigable rivers that includes nontidal waters.⁶⁾ Regulations of the Maryland Department of Natural Resources cover safety and commercial whitewater kayaking on certain designated rivers, including the Youghiogheny Wild River.⁷⁾

Miscellaneous

Trespassing from water vessels onto property that is conspicuously posted against trespassers is a misdemeanor subject to a fine of up to $500 and 3 months in prison.⁸⁾

¹⁾ Department of Natural Resources v. Mayor and Council of Ocean City, 332 A.2d 630, 634 (Md. 1975). It should be noted, however, that the author found no cases that held that the public has no rights in streams which are not influenced by the tide, and the recreational system of navigable water trails in the state includes nontidal waters. Thus, there still remains the possibility of the state adopting some type of test that would determine whether the public has a right to recreational use of nontidal streams.

²⁾ Wagner v. City of Baltimore, 124 A.2d 815, 820 (Md. 1956).

³⁾ Harbor Island Marina, Inc. v. Board of County Commissioners of Calvert County, 407 A.2d 738, 744 (1979); Board of Public Works v. Larmar Corp., 277 A.2d 427, 437 (Md. 1971).

⁴⁾ Md. Dep't of Gen'l Services, Maryland Manual 1979-80 1 (1979).

⁵⁾ See generally, Kaiser Aetna et al. v. United States, 444 U.S. 164, 175 (1979), United States v. Chicago, M., St. P. & P.R.R., 312 U.S. 592 (1941

⁶⁾ http://www.dnr.state.md.us/outdoors/boating.html.

⁷⁾ COMAR 08.18.01, 08.15.04.

⁸⁾ Md. Criminal Law Code Ann. §§ 6-402, 6-403 (2006).