Sometime around 2002, I had a run-in with a couple of beer-chugging, rifle-toting locals on a Hill Country Stream. Shots were fired. My then 3-year-old was with me. We left.
That was when I started to pay attention to the issue of public access on the waterways in this state, an interest that carried through to my participation in establishing the Texas Paddling Trail program as an employee of the Texas Parks & Wildlife Department (TPWD).
Fish or paddle Texas streams long enough, and it will happen to you, too: you will be hassled, accused of trespassing, run-off, or – God forbid — even shot at by an irate landowner.
With the population of Texas projected to double in the next 20 years, and the amount of water to – at best – stay the same, such conflicts are bound to become more common.
There is a better than even chance that when that happens, it is the landowner who is breaking the law, not you.*
The local sheriff’s deputy probably won’t know the relevant statutes, and may side with the landowner, who (after all) helped elect his boss.
The county’s game wardens should have a better grasp of the underlying law, and certainly will have more independence, but (as has happened to me and to others) may not be able to offer a definitive answer about a particular creek or stretch of river.
In all likelihood, you will be advised to leave, if for no other reason than to defuse the situation at hand. And, snap! Just like that, your right – your birthright really – to enjoy the natural resources of the state, has been surrendered.
And it is a right, enshrined in common law, the Texas Constitution, and in statute.
It would be terrific if somewhere there existed a master list of streams, or maybe a map, that indicated which rivers and creeks or which sections are public waters.
It would be awesome if there was a single state agency one could go to and get a definitive answer to your question – maybe even before you get on the water.
The frustrating truth is this: you will find neither of these things in Texas.
There are approximately 3,700 named streams and 15 major rivers flowing over 80,000 miles (that’s one-third of the distance to the moon) in the state, and a hodge-podge of state and local agencies with some level of interest or jurisdiction.
Here’s what you need to know:
1. Whether a waterway can be considered public depends on something called “navigability.” A stream can be navigable in fact – canoes, steamboats, ships, or even logs have been or are floated down (or up) it; think Buffalo Bayou, the Sabine River, or the Brazos. But, in 1917, in Welder v. State, the Austin Appeals Court wrote that navigability “in fact” should consider public utility, not commercial use, and that “… hunting and fishing, and even pleasure boating, has been held to be proper public uses.”
A stream also can be navigable by statute. In 1837, the Republic of Texas passed a law (now enshrined, virtually unchanged, in the Texas Natural Resources Code, Section 21.001(3)) – that said streams with an average width of 30 feet are navigable.
2. The width of a stream really depends on the width of the stream bed. Practically speaking, this means that it doesn’t matter whether the creek is bank-full, has a trickle in a channel in some portion of the bed, or even if the water has gone underground for some distance. The depth of the water – whether it is ankle-deep or over your head – is utterly unimportant.
A stream doesn’t need to have water in it to be considered navigable. Appeals court rulings (Tex. River Barges v. City of San Antonio, 2000) and Attorney General opinions (S-208, 1956) affirm that even dry stream beds remain open to the public.
The stream bed is the area between the fixed banks, where upland vegetation (grasses, mesquite or oak or juniper trees, cactus, etc.) grows.
Technically, it is the area between the gradient boundary on either bank – an often hard-to-define point midway between the normal water level and the fixed bank. For our purposes, it is usually enough to determine where the upland vegetation begins.
Gravel banks, islands, sandbars, and backwaters and sloughs may be and often are found within the stream bed, and, generally, are public. Unless the waterway is in flood and out of its banks, in which case … not so much. However, impoundments that extend beyond the stream’s bed also extend the public’s right to use the contiguous waters.
3. There is an implied (but not legally tested) right to scout and portage hazards (including low-head dams) in the stream bed. It is generally assumed that one may enter adjacent private property to look ahead and to go around obstacles. If you do that, the foray onto private property should be limited – just enough to accomplish your objective, and then back into the water you go. Convenience is not a good reason to leave the river bed.
4. Access to public waters must be through landowner consent or from a public park or right-of-way. In practice, in Texas this most often means a public road crossing. We do not have the right to hop (or cut) fences or take shortcuts through someone’s yard to reach a public waterway.
5. If the stream is otherwise navigable, ownership of the stream bed is immaterial. Landowners sometimes will insist that they own the stream bed and therefore you are trespassing, even if you are in the water. They may, but you probably are not. A 1929 law commonly known as “The Small Bill,” recognized that even in the (rare) cases in which the state does not hold title to the bed of an otherwise navigable stream, it retains a right-of-way over it and the public may use it as if it is public property.
Caveat: The state has ceded ownership of stream beds to home-rule cities with populations over 40,000. That means that Austin, for instance, can impose ordinances regarding things like the use of motorized vessels on Lady Bird Lake.
The lawful use of a navigable waterway in Texas encompasses all sorts of things – from hiking and camping, to fishing and (sometimes) hunting, to swimming and paddling (Except on the much-contested Blanco River, where a 2015 law, HB 3618, prohibits camping or building fires in the stream bed. This law was clearly designed to limit access.).
It does not include driving a motorized vehicle in a stream bed, or removing gravel or sand or diverting water for private use.
For those last two things you would need permits from TPWD or the Texas Commission on Environmental Quality (TCEQ), respectively — two of the handful of state agencies with an interest in waterways.
The Texas General Land Office (GLO), which grants easements across public waterways, may offer an opinion about the navigability of a particular section of river or creek based on measurements they make using their own GIS mapping applications and … Google Earth.
Yep, Google Earth – a tool available to you in the privacy of your home.
Very occasionally the GLO will send professional surveyors out to take a look-see in person.
Sometimes TPWD will ask game wardens to do the same. Usually this happens at road crossings, casting above and below the access point for some reasonable distance, and typically only in response to a permitting fight or lawsuit.
So, what do you do if you are hassled by a landowner? First, remain calm and be polite. Chances are the person protesting your presence sincerely believes you are on his or her lawn, so to speak.
When the landowner threatens to call the sheriff’s office, offer to call the game warden. TPWD’s 24-hour law enforcement communications center (512-389-4848, or 1-800-792-4263) can route you to a game warden in your county.
Sadly, landowners adjacent to public waterways have plenty of legitimate gripes, including an astounding amount of trash at and downstream from some public access points, folks traipsing across their property or cutting fences, and other acts of vandalism.
Maybe if they see enough of us acting responsibly – packing other people’s trash out with us, practicing catch and release and passing through quietly and respectfully – those negative attitudes will change.
We should be grateful to those landowners, too: whether by design or not, they often preserve water quality by maintaining a riparian barrier of vegetation and by impeding more dense development.
Where things fall apart is when a private landowner fences across a public easement to prevent access, fells a tree across a stream to prevent the passage of a canoe or kayak, or harasses an angler or paddler otherwise lawfully enjoying a day on the water.
The first two instances are something lawyers call “purpresture,” and the Texas Attorney General may sue to remove such barriers.
*The third instance is a violation of a not-often-enough prosecuted statute found in section 62.0125 of the Parks & Wildlife Code, commonly known as the “Sportsman’s Rights Act.”
That statute states that: “No person may intentionally interfere with another person lawfully engaged in the process of hunting or catching wildlife,” which in an accompanying definition explicitly includes fish, and further clarifies that the “process” includes acts preparatory to hunting or catching, such as camping. Violation is a Class B misdemeanor, carrying a penalty of up to $2,000 or 180 days in jail – the same as criminal trespass (Texas Penal Code, section 30.05).
Traipse along enough Central Texas streams, and you will see efforts to intimidate or impede anglers and paddlers through illegal fences, misleading signs, and the like.
I believe I am reasonably well-informed about where I have a right to be, and most often confine my fishing and paddling to streams that I think I can make a defensible case are navigable. If you feel the same way, feel free to ignore those fences and signs.
Some of us believe that the approximately 1 million acres of public lands submerged beneath the state’s waters are crucial to our quality of life.
At some point – and the time is coming sooner rather rather than later – we might want to get organized and to begin challenging the public road easements that are fenced to bridge abutments and the fences crossing navigable streams and the like.
Until then, discretion is sometimes the better part of valor and civility often carries the day. Above all, modeling responsible behavior – being good stewards of the shared resources that are our public waters – will go a long way toward defusing conflict.
I am not a lawyer and this is not legal advice. For an in-depth look at the issues, see TPWD’s Texas River Guide, which has a wealth of related information. My forthcoming book, Fly Fishing Austin & Central Texas (Imbrifex Books, 2019), will include an expanded chapter on Texas river law and a never-before published list of local rivers and creeks and GLO and other opinions regarding navigability. There are some pleasant surprises.