What waterways are considered 'navigable' in Pennsylvania?

For centuries, navigable waters were identified as waterways used for commerce, such as floating logs or transporting furs.

The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army announced in December a rule establishing a durable definition of “waters of the United States” (WOTUS) to reduce uncertainty from changing regulatory definitions and might protect people’s health and support economic opportunity. But it didn’t really change things for people living in Pennsylvania who are concerned about boundary lines.

“In general, Pennsylvania does not anticipate any changes for landowners, farmers and anglers.  Pennsylvania DEP is authorized to regulate activities that may affect 'waters of the commonwealth' pursuant to state laws such as the Clean Streams Law and Dam Safety and Encroachments Act,” Jamar Thrasher, press secretary for the Pennsylvania Department of Environmental Protection, said in an email. "The federal rule is being issued jointly by the U.S. Army Corps of Engineers and EPA to bring federal consistency to interpretations of 'Waters of the United States.'"

The Pennsylvania Department of Conservation and Natural Resources also doesn’t foresee any changes  for public water access along private properties.

“The new Waters of the United States Rule (WOTUS) has no effect on public access to waterways in the Commonwealth of Pennsylvania, the WOTUS rule concerns the regulatory authority over waters under the Federal Clean Water Act," Wesley Robinson, DCNR press secretary, said through an email.

But what does navigability mean for people wanting to enjoy the outdoors and those who own property along major waterways?

Donald Benczkowski retired after serving as the Coastal Resources Program manager for the Pennsylvania Department of Environmental Protection, at DEP headquarters in Harrisburg. He has worked with property owners and anglers on the topic while working in various positions across the state.

“I spent a fair amount of time on the water,” he said.

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One of the areas he’s familiar with is Lake Erie.

“Lake Erie is the lake most affected by development and agriculture,” he said about Pennsylvania’s coastal program.

Pennsylvania is a low-water-mark state, meaning property owners along the Great Lake own property out to the low water mark. It’s a specific elevation above sea level.

“Public access means different things to different people. People who want to go fishing or people who want to watch a sunset. It can be someone who wants to walk along the shoreline for their own well being. It doesn’t mean that you can have a party down there. It’s kind of like a sidewalk,” Benczkowski said about defining public access.

He said the low water mark for determining property lines along Lake Erie is determined as where the property is 568.6 feet above sea level based on 1955 International Great Lakes Data. The high water mark is 572.8 feet above sea level.

“Public access is based on common law and the Public Trust Doctrine where certain activities are allowed,” he said about the two water marks. Permitted activities include fishing, hunting and navigation such as on a kayak.

Benczkowski said the regulations create nuances for property owners and the public. “Public access isn’t to be gained through private property, though.” You can’t walk across someone’s private property to get to the navigable waters. You have to get to there by staying in public areas.

“You can’t just haphazardly walk up to a house and use their stairs and get down to the beach area and go fishing and use those stairs to get back up. That’s clearly private property,” he explained.

Instead, you have to enter the area through the lake from sides that are public.

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Advice for anglers

He urges people to be respectful of property owners along shorelines when trying to access waters that may not be clearly open to the public. “There’s nothing to say that you can’t knock on someone’s door and say, Hey, I love fishing, I’m respectful of peoples’ properties. Is there any way I can use your property to access the lake? If you get permission, that’s one way of doing that.”

Offering to pick up trash or do something similar for the property owner is a good way to build friendships.

Be ethical in your fishing and get to know property owners and pick up litter. “Keep your playground clean,” he said. “Be respectful of not only the lake but the landowners who are living in those areas adjacent to the waters. Sometimes that makes the difference.”

For example, the Pennsylvania Steelhead Association delivers fruit baskets at Christmas to property owners who allow public fishing along the shore and tributaries in the area. The club works with property owners to alleviate concerns and problems with the general public.

He said a few troublemakers and litterbugs can jeopardize the future access for everyone. “Sometimes anglers are their own worst enemy as the 5% ruining it for the other 95%.”

If a property owner tells an angler they are not welcome, he said you should leave and then look into where the boundaries truly are located.

For streams, he said most are non-navigable which means the property owner doesn’t have to require property access. Property owners can own the land into the middle of the stream or across the stream and beyond.

“They have no obligation to allow you on the property," he said.

Some of the navigable Pennsylvania waters include major rivers in the state like the Juniata, Susquehanna and the Ohio rivers.

Mark Sweppenhiser, waterways conservation officer with the Fish and Boat Commission in Dauphin, Northumberland and part of Cumberland counties, has had to deal with fishing access questions over the years.

“Pennsylvania is a property right state which means the property owner has a lot of rights. Someone’s deed generally says to the near side, middle or far side of the creek,” he said. “In Pennsylvania, the navigability standard is a historical test of commerce. Was that waterway used for commerce up and down, whether it be fur trading, log moving or something like that.”

He explained the challenge is finding data or documents to support that commerce happened on some smaller waterways.

“What I tell people is that if (the name) doesn’t end in river, it’s probably not designated as navigable. Now that doesn’t necessarily hold true for everything,” he said.

Some of the rivers that are navigable waters, he mentioned, including the Monongahela, Ohio, Allegheny, Clarion, Susquehanna, and Lehigh.

The DCNR has an online interactive map of public waterways in Pennsylvania.

“The best rule I can tell people is, if you are in the creek fishing and you got there lawfully and someone says you are on their property, respect that and move along,” Sweppenhiser said.

Brian Whipkey is the outdoors columnist for USA TODAY Network sites in Pennsylvania. Contact him at bwhipkey@gannett.com and sign up for our weekly Go Outdoors PA newsletter email on this website's homepage under your login name. Follow him on Facebook @whipkeyoutdoors.

This article originally appeared on Erie Times-News: Navigable waters in Pennsylvania with DEP, EPA, DCNR, Fish and Boat