State lawmakers angling to wade into question of property rights along Georgia’s waterways

“We are the group that filed the lawsuit that kicked this all off and so I guess that makes me perhaps the villain in the room,” Ben Brewton, who is part of the ownership group that sued the state last fall, said to lawmakers this month. Jill Nolin/Georgia Recorder

The Flint River flows rapidly over the rocky shoals that create an inviting habitat for the shoal bass, the state’s official riverine sportfish.

But more recently, this river has been the spawning ground of a different sort.

An Upson County landowner’s attempt to claim exclusive fishing rights on a popular stretch of the river has brought long-simmering tensions near a boiling point and ignited a fresh debate in Georgia over the public’s access to the great outdoors. That has pitted property owners, some with multigenerational roots, against the anglers, paddlers and others with traditions firmly anchored in this river.

Fishing is big business in Georgia, where about 1.1 million people hold a fishing license, and the state sinks taxpayer dollars into stocking fish, building boat ramps and conducting surveys and research on Georgia fisheries. Fishing and hunting rights are so highly regarded here that they are enshrined in the state Constitution. 

“Fishing is really important to Georgia. It’s really a part of who we are as a people and a state,” said Scott Robinson, who is the chief of fisheries with the state Department of Natural Resources.

The state settled with the Upson County landowner earlier this year, which alarmed proponents of public access who worried other landowners would try to follow suit. The issue landed before state lawmakers just as the 2023 session was winding down, leading them to use late-session maneuvers to pass a bill designed to protect the public’s access to fishing on waterways deemed navigable.

But another landowner has since filed a lawsuit in Talbot County seeking exclusive fishing rights on a stretch of the river that they argue is non-navigable. The state has asked for the case to be dismissed.

As the matter works its way through the courts, state lawmakers are also holding a series of meetings this month on the issue. And last week, landowners, outdoor enthusiasts, environmentalists, elected officials and others gathered at Towerhouse Farm Brewery in the town of Gay to have their say about who controls access to the river, specifically for fishing. 

“We are the group that filed the lawsuit that kicked this all off and so I guess that makes me perhaps the villain in the room,” Ben Brewton, who is part of the ownership group that sued the state last fall, said to lawmakers.

Brewton said his father purchased the property 50 years ago believing the land came with exclusive dibs on the fishing hotspot.

“In the end, what this is about is whether Georgia, a business-friendly state that the governor takes great pride in, is going to become a state that finds something someone has that is desirable and decides to institute a law to take it away from that person. There’s a name for governments to do that,” Brewton said.

More changes coming?

The new law asserts that the state became the owner of all navigable stream beds when Georgia became a state back in 1788 and that it is the “trustee of its peoples’ rights to use and enjoy all navigable streams capable of use for fishing, hunting, passage, navigation, commerce, and transportation, pursuant to the common law public trust doctrine.”

And while it also concedes that a private party can own a stream bed in some cases, such as when there is a long-standing state grant to the property, the law now says that those public rights to the flowing stream still remain.

When Gov. Brian Kemp signed the measure into law in May, he issued a special statement defending his support and countering some of the concerns lodged with his office. He also directed critics of the law to make their case for more changes through the study committee.

State Rep. Beth Camp, a Concord Republican whose district includes Yellow Jacket Shoals, was one of dozens of lawmakers who voted against the last-minute bill, which squeaked through the House with a 93-to-75 vote even as it easily cleared the Senate.

Camp, who is not on the study panel, said she voted no because she did not have a chance to read the bill first. Since then, Camp says she has heard strong opinions from both sides of the issue in her district, and she said she would like to see lawmakers address any lingering ambiguity when they return to Atlanta in January. 

“I think the committee is going to have their work cut out for them, but there has to be a balance between property owners’ rights and public interest,” she said.

The next study committee meeting is set for Thursday in Habersham County, where the Soque River’s trout are the big draw and are at the center of tensions there. Other meetings are planned for Oct. 18 in Fannin County and Oct. 25 in Bulloch County.

State Rep. James Burchett, a Waycross Republican who is chairing the panel, said “clarity” may help tamp down the confusion. 

“There’s not a lot of folks who want to expand the public interest into these waters. What they want to know is where can I fish and where can I not fish, and the property owners want the same thing. So, that’s where I’m keying in on right now,” Burchett said after the first meeting.

Any final recommendations, though, would be a committee decision, he said. The committee is notably loaded up with influential House lawmakers, including five committee chairs and a floor leader for the governor. Burchett also serves as the majority caucus whip. 

‘What is navigable and what is not?’

The bill that passed this year only applied to navigable streams, but advocates and others argue that what counts as “navigable” in Georgia isn’t always clear.

And that distinction matters when it comes to a property owner’s rights. If a stream is deemed non-navigable, then the owner can claim exclusive fishing rights out to the center of the waterway. If they own both sides, then the entire stream bed is theirs. But if the waterway is considered navigable, the landowner’s rights stop at the low-water mark.

This is where the issue becomes murky, though. Federal and state definitions differ, with Georgia’s guidelines largely hinging on a smattering of court rulings, attorney general opinions, historical documents and an 1863 definition.

“We have to bear in mind that that was something that was adopted by the Legislature during the middle of a war when a lot of the men were away and 30 or 40% of the population was in bondage. So, I’m not sure if it has much validity at all for modern life,” said Walker Chandler, a Pike County resident whose concerns largely centered on ensuring public boating access on the state’s rivers.

Robinson with the state Department of Natural Resources acknowledged the challenge of labeling some streams.

He said the state also considers factors like the width of the stream – usually 30 feet or wider – and the volume of water flowing. For example, he said the state can put in a boat ramp with confidence where more than 400 cubic feet of water is passing through every second. But between 200 and 400 cubic feet of flowing water is a gray area.

“Basically, anywhere we put a boat ramp we do consider downstream of there to be open to public use, otherwise it wouldn’t be appropriate for us to put a boat ramp there,” Robinson said.

April Lipscomb, a senior attorney with the Southern Environmental Law Center, said this year’s new law represented the state’s attempt to set “the scope of the public trust doctrine” in Georgia, which she says the U.S. Supreme Court has ruled is for states to decide. 

Lipscomb told lawmakers in Gay that the new law “corrected” earlier court rulings that had not considered the state of Georgia’s public trust responsibilities.

“Moving forward, I think the biggest challenge is going to be to figure out which rivers and streams in Georgia are navigable, which test applies, what that test looks like, and how to make sure that anglers have easy access to that information,” she said. 

The Southern Environmental Law Center also filed a motion last week to intervene in the Talbot County case on behalf of two conservation groups, the Georgia Wildlife Federation and Flint Riverkeeper, in hopes of helping to bolster the state’s defense of the new fishing protections passed this year.

Gordon Rogers, executive director of the Flint Riverkeeper, argues the entire Flint River should be considered navigable but he urged the panel to chart a “pathway to clarity.” 

“We’re counting on this committee to make strong recommendations to the House to establish a pathway to clarity, a process by which all Georgians – waterfront property owners, anglers, paddlers, commercial guides, outfitters, everyone – can get to a point where we know where we can fish and where we cannot. Where we can pass through and where we cannot,” he said. “What is navigable and what is not?” 

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