Water rights and water access can become contentious and complex issues in Texas. It is important to understand exactly how these work, and one of the key distinctions is whether or not a river or stream is considered navigable. If it is, then it is often considered a public stream or a resource that is shared by the community.
There are two ways that this is defined, one with a much clearer definition than the other. The first is if it is “navigable by fact.” However, this does not come with a precise test or definition. It is based on the idea that natural waters are useful for the public and therefore qualify as a public utility. If they are able to be navigated for a significant percentage of the year, they may qualify under this loose definition.
Navigable by statute
The second category is if it is navigable by statute, which can be true even if it is dry for a certain percentage of the year. One key element of this definition is that it has to have an average width of 30 feet. This must be true from the mouth of the river and moving upstream.
When calculating the width of the river, the entire streambed has to be considered. This can go far beyond how high the water is on a certain day, which can change with the time of year based on weather conditions, rainfall and similar factors. Even if the river entirely dries up, if the streambed is greater than 30 feet, it can still qualify as a navigable body of water.
Many small streams and creeks on people’s personal property do not qualify under either of these definitions, but larger bodies of water often do. It is important to understand how the law addresses these issues and what steps to take if a dispute arises.
