By Matt Aiken & David Williams / The Nugget & Capitol Beat -------------- If you’re hoping to paddle, float or fish in local rivers this summer you might want to consult property lines before shoving off into the Etowah or Chestatee. A recently enacted state law is making it a bit more complicated for boaters to go with the flow and, according to law enforcement officials, can result in criminal trespass citations for river-goers in and around North Georgia. Just ask Peter Regan. The Dahlonega resident was mid-paddle when he came across a series of No Trespassing signs hanging directly over the Etowah River near Hightower Church Road last month.
“The three signs were hung on a wire suspended over the Etowah River itself,” he told The Nugget via email. “It was not on the banks.”
Naturally, he paddled his kayak faster, which only brought him to more signs.
“A second set was downstream facing upriver,” he said.
Next to those signs was an empty lawn chair, which he took as an ominous sign.
“I wish I had taken a photo but I was in moving water and not eager to stop, as you can imagine,” he said.
At the time Regan was not in violation of any property laws, according to Sheriff Stacy Jarrard of the Lumpkin County Sheriff’s Office.
But as of July 1, all that changed, he said.
Jarrard said that in the past his understanding of the waterway property law was that “if it floats, it’s fine.” This meant that if a boater or tuber or angler floated above the water, and didn’t stand in the river bottom, they were not trespassing on rivers that flowed through private property.
Earlier this year, the General Assembly passed legislation that actually guarantees Georgians the right to fish and float in the state’s “navigable” rivers and streams.
The problem for local boaters and floaters is that North Georgia currently has no navigable rivers, as defined by that law.
Senator Steve Gooch, who voted for the law, told The Nugget that this aspect of the law has always been in place, but was unenforced.
“That did not change July 1st,” he said. “That’s been the law for decades or centuries. It just hasn’t been enforced.”
Jarrard said the lack of enforcement was due to the murkiness of the previous law.
“What I understand with the law is, if it’s not a navigable waterway, then the property owner can now post a No Trespassing sign and you cannot float through it and you cannot fish it if they own both sides of the river or creek or waterway,” he said, adding that he double-checked with the Georgia Department of Natural Resources just to make sure.
Jarrard added that the same rules apply if property owners on both sides of the river agree to post such a sign.
If caught floating through a posted area, local river-goers could face a criminal trespass warning.
“We would have to issue them a trespass notice,” said Jarrard. “And then from that moment forward if they are caught back in that area they could be charged with trespassing.”
NAVIGABLE OR NOT
The complicated issue of river rights is one that’s been discussed and debated beneath the Gold Dome for years. Where can we paddle? Where can we float? And for many, the most pressing question, where can we fish?
The new legislation actually guarantees Georgians the right to do all those things, but only in the state’s navigable rivers and streams. Now comes what promises to be the trickier question of deciding which rivers and streams are navigable and which are not.
"This is the harder one to figure out," said Mike Worley, president and CEO of the Georgia Wildlife Federation.
A Georgia House study committee will soon begin tackling that task this summer and make recommendations to the full House - if any - by Dec. 1.
It will be chaired by Rep. Lynn Smith, R-Newnan, who also chairs the House Natural Resources & Environment Committee, and include Majority Whip James Burchett, R-Waycross, who chaired a study committee on the fishing rights issue last year and was chief sponsor of this year's bill.
The study committee won't be working from a blank slate. Burchett introduced legislation this year naming 64 rivers and creeks "presumed to be navigable."
The list includes such no-brainers as the Altamaha, Chattahoochee, Flint, and Savannah rivers. But others that may or may not make the list aren't so clear-cut.
The Nugget checked the list and found that, at this point, the Chesatee is included as navigable downstream of the “confluence with Tesnatee above Copper Mines Road.” Meanwhile, the Etowah River has been listed as navigable downstream of Highway 9.
That could change though. And Worley is concerned about those rivers that won’t make the list.
"There are some well-known streams throughout the state that are going to be question marks," Worley said.
Worley named the Toccoa River, Seventeen Mile Creek, and Ichawaynochaway Creek as examples. The Toccoa is on the list included in Burchett's bill, but the other two are not.
"There is a lack of clarity over what's navigable and what's not," said Gordon Rogers, executive director of the environmental advocacy organization Flint Riverkeeper. "We need to hash that out."
ON THE HOOK
Historically, Georgians have enjoyed the right to fish in the state's navigable waters. But that right came into question early last year when a property owner along a portion of the Flint River asserted an exclusive right to control fishing from the bank on its side of the river to the center of the stream and banned fishing there.
Four Chimneys LLLP sued the state alleging failure to enforce the ban and won an agreement from the Georgia Department of Natural Resources in March of last year promising to enforce the ban. That agreement prompted the General Assembly to pass a bill on the final day of the 2023 legislative session codifying a public fishing rights guarantee into state law.
No sooner had the ink dried on that legislation when some waterfront property owners began objecting to language in the bill guaranteeing access to fishing on navigable waterways as a "public trust."
After holding a series of hearings on the issue around the state last fall, Burchett introduced a fishing rights bill removing the public trust doctrine. The General Assembly passed House Bill 1172 in March primarily along party lines after minority Democrats complained it didn't go far enough to protect fishing rights.
Prior to July 1, Worley said he had already heard stories of anglers being approached by property owners and told they can't fish.
"I don't think the language (in the bill) was clear enough," he said. "There are going to be lawsuits."
Rogers said he doesn't fear the threat of litigation.
"I'm fishing where I've fished for decades and doing it the way I've been doing it for decades," he said. "If a property owner wants to bring an action contrary to that, fine."
Rogers praised Burchett's efforts to get a bill that would satisfy both property owners and the state's anglers.
Gooch told The Nugget that this is what the bill is all about.
“I always lean toward private property rights,” he said. “If you own it, you control it.”
He noted that this won’t impact popular local businesses like Appalachian Outfitters and Chestatee River Adventures since they don’t have conflicts with riverfront landowners.
But Rogers warned that the new study committee faces a difficult task when it comes to deciding which rivers and streams - or portions thereof - will be open to fishing and which won't.
If it was easy, Burchett's bill declaring dozens of waterways navigable would have passed this year. Instead, it died without even a committee vote.
"Whoever does that is going to run into a buzzsaw from both sides," Rogers said. "There's going to be people who say it's not enough and people who say it's too many."
GO WITH THE FLOW?
Lumpkin’s own State Representative Will Wade, who also voted for the bill, isn’t on the study committee, but told The Nugget that floating in certain non-navigable areas will likely be debated in the House.
He added that leasing might be an option as well.
“I also believe that many landowners that own one side of the river or both sides would be willing to consider leasing access to floaters,” he said. “Just like many land owners are willing to lease land for hunting. I am always going to lean toward private property rights.”
Meanwhile Regan just wanted some clarity on what exactly he’d floated through in his trusty kayak last month.
“Imagine you are in the middle of a forest, with no take-out for miles and then to see a chair on the banks adjacent to a Private Water sign suspended over the river,” he said, “[It’s] not a pleasant feeling. Take it from someone who just experienced it.”
So what do you do if you find yourself floating down the Etowah or Chestatee and come across such signage?
Jarrard said it’s best to head back upstream. Otherwise a criminal trespass citation might follow.
“I would stop and attempt to get out at that spot and make arrangements to go a different direction and not go through it,” he said. “It’s the right of the land owners now to be able to do that, from what I am being told. … Law enforcement does not write laws. Legislature writes laws. We’re just enforcing the laws we’re given.”