North Georgia property owners sent a “loud and clear” message last week to members of a Georgia House of Representatives committee studying freshwater resources.
“We do not have navigable water in our streams here...we do not believe in people tramping across our private property,” Justin Turner, who lives on a family farm in Fannin County, told the committee.
“(You’re) coming across loud and clear,” Stan Gunter (R-Blairsville), said at the close of the meeting to a packed crowd at Old Toccoa Farm Wednesday, October 18.
Turner was among the last of the speakers who spent most of three hours expressing their concerns to the committee, formed after the Georgia Senate passed SB 115, a bill that has waterfront property owners across the state fearful the definition of navigable waters would be expanded.
Not only was worry expressed at the meeting over loss of private property rights, but just as important to many was the devastating affect expanding the definition of navigable would have to the fragile fishing economy in the mountains.
Rodney Tumbling, chairman of the Georgia Council of Trout Unlimited, said expanding the definition of navigable would have “an impact on fishing in Georgia for years to come.”
Terry Bramlett, who raises trout on his secluded Fannin County farm, talked of the huge economic impact of fishing in Fannin County, relating its positive effect on tourism to the Special Local Option Sales Tax that is vital to school system operations.
He warned that allowing fishermen access through private property such as his would destroy that economic impact by introducing pathogens into water that could destroy the trout population for years.
Emily Owenby, of Noontootla Creek Farms, voiced similar concerns at a previous meeting of the study committee. She talked of her family’s continuing conservation efforts to remove invasive species along over 2.5 miles of trout streams flowing through their property. To do that, the public must be kept out of those streams and off their property.
Changing current law would reverse these protections and allow a new invasive species – the human race – to be introduced to the streams. This species would destroy the fishing, she said.
Scott Robinson is chair of the Georgia Department of Natural Resources Fisheries Division and was one of the opening speakers. He said DNR is looking for clarification to the definition of navigable so DNR law enforcement officers do not have to make subjective decisions when called to solve fishing right disputes on area streams. He said these issues arise when private property owners spot someone fishing on their property.
Currently, Georgia law says a boat loaded with freight must be able to navigate a waterway the majority of a year for that waterway to be considered navigable. That standard was established in 1863.
Robinson said the DNR wants to change that regulation to say navigable is represented by water flowing at 400 cubic feet per second (cfs) or greater, water flow of less than 200 cfs is non-navigable and anything between 200 and 400 cfs is a maybe.
While Robinson did not address the Toccoa River in Fannin County specifically, a DNR map outlining water flows showed many parts of the Toccoa flowing at 400 cfs or more as well as many parts in the 200 to 400 cfs range.
These figures were later challenged as being year around averages.
Rob Ballew said, “Based on the 1863 standard, Toccoa below the dam is not navigable...we have to be very careful when we start judging things with our eyes.”
Jay Hamilton said, “The Toccoa is something we have to protect,” saying there should be no question creeks and streams are non-navigable.
Hamilton also reminded the committee that the Tennessee Valley Authority (TVA) and not the state’s DNR controls the water flow below Blue Ridge dam.
Steve Sikes, a Toccoa river property owner and retired game warden, said, “the law is very clear,” and warned against opening up any narrow waterway as navigable.
Turner told the committee there is already 100,000 acres of public land in Fannin County with 42% of the county owned by the federal government. This offers plenty of opportunity for the public to enjoy the outdoors. There is no need to open up private property to the public.
“There’s got to be a limit, a boundary, and a boundary has already been set,” Turner said.
Private property defense include U.S., state Constitutions
Expanding the definition of navigable waterways, which would allow fishing on what is currently private property, is being seen as an effort by Georgia government to illegally take private land.
This message was echoed by many citizens who addressed a House of Representatives committee meeting at Old Toccoa Farm Wednesday, October 18. That committee was assigned to consider SB 115 that was passed by the State Senate at the end of last year’s legislative session. The language in that bill raised concerns in the House, and has been vocally opposed heavily throughout North Georgia at study committee meetings.
Rob Ballew of Gilmer County told the committee, “SB 115 amounts to government taking private property.”
Georgia law says that on non-navigable waterways the property owner bordering that waterway owns property to the center of the stream bed and has the exclusive right to fish there. Where the property is owned on both sides of the stream, the property owner owns the entire width of the waterway.
This protection is used for raising fish as well as conservation measures to maintain existing natural fish habitats. Changing the law would allow an invasive species - humans - to ruin both, Ellen Owenby of Noontootla Creek Farms previously told the committee.
Former state Senator Judson Hill said changing the navigable waterway definition would infringe on the Fifth Amendment of the U.S Constitution as well as the Georgia Constitution.
Navigable waterways are defined in the public trust doctrine of the state Constitution, a definite set by an 1863 standard. That standard says navigable means a boat hauling freight can use the waterway most of the year. “The law is clear now,” Hill said.
He said “clarifications in the law are a change in the law,” and the change being considered would also be a change in the public trust doctrine.
“The best steward of their land are private property owners, not the government,” Hill said.
Referencing the state Department of Natural Resources, Hill said it is “not the right of an agency” to to determine navigable and non-navigable waterways.
He called SB 115 a “slow attempt to allow trespassing.”
Eric Wilhelm, who owns both sides of a Fannin County trout stream, said he has seen a similar private property battle over the beaches in Walton County, Florida.
That battle resulted in lawsuits, signs, chains, security guards and a lot of ugliness. He promised lots of lawsuits if Georgia proceeds with the Senate idea. Private property includes the “right of inclusion,” he said.
Confrontations, liability issues unforseen consequences of SB 115
Members of a state House of Representatives study committee heard warnings of unforeseen consequences if the state’s definition of navigable waterways is expanded.
The committee met at Old Toccoa Farm last Wednesday, the members charged with collecting input on Senate Bill 115 that was passed at the end of last year’s legislative session.
That bill, opponents believe, would allow private property on the state’s trout streams to be opened up to the public.
Jeff Roach, who has owned a home on the Toccoa River for over 30 years, warned one of the unintentional consequences would be opening up the same private property to hunting. Wading would be considered legal in navigable streams.
A hunter seeking “appropriate cover” could find himself trespassing, resulting in a confrontation with the property owner.
Armed confrontations never end well, Roach warned.
He told House committee members they should stick to the old adage, “if it’s not broke don’t fix it.”
Justin Turner, who owns a family farm in Fannin County that borders both sides of a stream, asked if the government opens his property up to the public, and someone gets hurt, “who’s liable?” He received no response.