Information Bulletin #3 (Fifth Amendment)
SUBJECT: Roster of Indiana Waterways Declared Navigable or Nonnavigable
HISTORY: This Information Bulletin was first published in the Indiana Register on July 1, 1992 (15 IR 2385). On March 19, 1997, the Commission approved the First Amendment (20 IR 2920) that superseded the original bulletin. On October 11, 2006, the Commission approved the Second Amendment (20061011-IR-312060440NRA) making technical amendments. On June 11, 2008, the Commission approved the Third Amendment (20080611-IR-312080426NRA) adding sections of the Tippecanoe River as navigable in White County, Starke County, and Pulaski County. On May 16, 2017, the Commission approved the Fourth Amendment (20170524-IR-312170265NRA) updating contact information for the Division of Hearings. On September 21, 2021, the Commission approved this Fifth Amendment updating URL links and making other technical changes.
I. NAVIGABILITY
Property rights relative to Indiana waterways often are determined by whether the waterway is "navigable." Both common law and statutory law make distinctions founded upon whether a river, stream, embayment, or lake is navigable.
A landmark decision in Indiana with respect to determining and applying navigability is State v. Kivett, 228 Ind. 629, 95 N.E.2d 148 (1950). The Indiana Supreme Court stated that the test for determining navigability is whether a waterway:
was available and susceptible for navigation according to the general rules of river transportation at the time [1816] Indiana was admitted to the Union. It does not depend on whether it is now navigable....The true test seems to be the capacity of the stream, rather than the manner or extent of use. And the mere fact that the presence of sandbars or driftwood or stone, or other objects, which at times render the stream unfit for transportation, does not destroy its actual capacity and susceptibility for that use.
A modified standard for determining navigability applies to a body of water that is artificial. The test for a man-made reservoir, or a similar waterway that did not exist in 1816, is whether it is navigable in fact. Reed v. United States, 604 F. Supp. 1253 (1984).
The court observed in Kivett that "whether the waters within the State under which the lands lie are navigable or non-navigable, is a federal" question and is "determined according to the law and usage recognized and applied in the federal courts, even though" the waterway may not be "capable of use for navigation in interstate or foreign commerce." Federal decisions applied to particular issues of navigability are useful precedents, regardless of whether the decisions originated in Indiana or another state.
The primary issue in Kivett was ownership of the riverbed from which the defendant was removing materials. If the waterway was navigable on the date of statehood, title to the bed of the river passed to the state of Indiana and could not ordinarily be conveyed incident to the adjoining riparian property. Also, once a waterway is found to be navigable it remains so, even if the waterway is no longer used for purposes of commercial navigation. United States v. United States Steel Corporation, 482 F.2d 439 (7th Cir. 1973).
In the absence of a contrary state boundary, the appropriate line of demarcation for a navigable waterway is the ordinary high watermark. The Indiana Water Resource, Governor's Water Resource Study Commission, State of Indiana (Indiana Department of Natural Resources, 1980), page 107. The Natural Resources Commission has also adopted this standard by rule. 312 IAC 6-1. If not navigable, title to the bed of the river passes to the adjacent property owner or owners.
Ownership is not the only issue determined by whether a waterway is navigable. Public recreational and commercial usage of the surface of a river or stream often depends upon whether the water is navigable. Other legal foundations may, however, authorize public usage. A prescriptive easement may exist. A waterway may be a "public freshwater lake" subject to IC 14-26-2 and 312 IAC 11-1 through 312 IAC 11-5. Pursuant to IC 14-29-8, the Natural Resources Commission may, by rule, declare a waterway to be a "recreational stream."
State legislation also establishes regulatory functions that rest upon a determination of navigability. For example, a permit is typically required from the Indiana Department of Natural Resources before a person can
- place, fill, or erect a permanent structure in;
- remove water from; or
- remove material from
a navigable waterway. IC 14-29-1-8 and 312 IAC 6.
Other notable regulatory standards applicable to navigable waters include IC 14-18-6 (Lake Michigan fills), IC 14-29-4-5 (dedication of channels into navigable waters), IC 14-19-1-1 (general charge of Indiana navigable waters placed in DNR), and IC 14-29-3 (removal of sand and gravel from the beds of navigable waters).