Freedom of Navigation in California

For tips on approaching landowners to ask for access permission, please read this article by Jason Robertson on the AWA website.

Navigability can be generally defined three different ways:

State Title test: the state owns the bed of a waterway.
Federal Commerce Clause: the waterway is susceptible to interstate or foreign commerce.
State-specific tests for navigation. Some states (CA, MT, NY) have liberal standards giving the public a right to travel on waterways which may not be legally navigable under either of the first two tests. This is usually done by public trust doctrine, navigational servitude, recreational standard, or other state-specific arrangements. Some states (CO) have very limited or uncertain rights to navigate under state law.

First let's remember Article X Section 4 of the California Constitution:

CALIFORNIA CONSTITUTION ARTICLE 10 WATER

SEC. 4. No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.

Obstruction of the free passage or use of a navigable waterway is a civil offense:

CIVIL CODE SECTION 3479-3484

3479. Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

Obstruction of the free passage or use of a navigable waterway is also a criminal offense:

PENAL CODE SECTION 369a-402c

(370.) Section Three Hundred and Seventy. Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance.

The following is part of the code concerning the creation of parcel subdivisions adjoining navigable waterways, and it provides clear legislative intent.

CALIFORNIA CODES GOVERNMENT CODE SECTION 66478.1-66478.14

66478.1. It is the intent of the Legislature, by the provisions of Sections 66478.1 through 66478.10 of this article to implement Section 4 of Article X of the California Constitution insofar as Sections 66478.1 through 66478.10 are applicable to navigable waters.

66478.2. The Legislature finds and declares that the public natural resources of this state are limited in quantity and that the population of this state has grown at a rapid rate and will continue to do so, thus increasing the need for utilization of public natural resources. The increase in population has also increased demand for private property adjacent to public natural resources through real estate subdivision developments which resulted in diminishing public access to public natural resources.

66478.3. The Legislature further finds and declares that it is essential to the health and well-being of all citizens of this state that public access to public natural resources be increased. It is the intent of the Legislature to increase public access to public natural resources.

The following from the CA Recreational Trails Act shows more good intent:

CALIFORNIA CODES HARBORS AND NAVIGATION CODE SECTION 68-68.2

68. The director shall cause to be prepared, and continuously maintained, a comprehensive plan for the development and operation of a statewide system of recreational boating trails. The plan shall be the boating trails element of the California Recreational Trails System Plan as required pursuant to the California Recreational Trails Act (commencing with Section 5070 of the Public Resources Code). The plan shall be prepared and continually maintained in accordance with provisions of the California Recreational Trails Act and shall, to the maximum extent practicable, be compatible with other elements of the California Recreational Trails System Plan.

68.2. In conformance with the California Recreational Trails Act, the Legislature hereby finds and declares that there is a statewide and continuing interest in the public's use of the state's inland waterways for recreational purposes. The Legislature further finds and declares that there exists a need to provide for recreational resource planning of the waterways in a manner that provides access and utilization for recreational purposes, consistent with the provisions of the California Recreational Trails Act.

This shows legislative intent to provide access to navigable waterways from new state highway/bridge construction:

STREETS AND HIGHWAYS CODE SECTION 70-86

84.5. During the design hearing process relating to state highway projects that include the construction by the department of a new bridge across a navigable river, there shall be included full consideration of, and a report on, the feasibility of providing a means of public access to the navigable river for public recreational purposes.

This shows legislative intent to provide access to navigable waterways from new county bridge construction:

STREETS AND HIGHWAYS CODE SECTION 940-991

991. Before any bridge on a county highway is constructed over any navigable river, the board of supervisors, after a study and public hearing on the question, shall determine and shall prepare a report on the feasibility of providing public access to the river for recreational purposes and a determination as to whether such public access shall be provided.

This shows legislative intent to provide access to navigable waterways from new city bridge construction:

STREETS AND HIGHWAYS CODE SECTION 1800-1813

1809. Before any bridge on a city street is constructed over any navigable river, the legislative body of the city, after a study and public hearing on the question, shall determine and shall prepare a report on the feasibility of providing public access to the river for recreational purposes and a determination as to whether such public access shall be provided.

Thanks to Ron Rogers for compiling these quotes.