Let me start off by saying, I am NOT a lawyer, I am NOT a game warden, and my words probably have ZERO legal authority in court. I am just an average Joe that has spent a ton of time reading up on where I legally can and cannot fish. This article does not substitute for legal advice.
Finding fishing spots can be a hard thing to do. TFFF covered this in the article, Should You be Asking for Fishing Spots? And after reading that article, you decided to try and find some spots on your own in Texas. But, as you were looking for the "blue lines" on Google Earth, you began to wonder, "am I allowed to fish there?" Or maybe you decided to take your kayak down a creek to fish, but some landowner along the way threatened you, and told you that you have no right to be fishing there.
What waters can you legally fish in Texas, and what are you legal rights? The truth is that the laws, and especially interpretations and understandings of these laws, can be pretty muddy and hard to define. So, in an effort to help you out as much as possible, here is a guide:
- The law states that a body of water is public if, "navigable in fact, "or" navigable by statute," and the courts have said that, "[w]aters, which in their natural state are useful to the public for a considerable portion of the year are navigable."
- So, that means that if the water is "navigable," then it is public and you can fish it.
- But what makes a water "navigable?"
- Navigable has been defined by statute as, "a stream, if it retains an average width of 30 feet from the mouth up."
- So, that means that the water is public if it averages 30 feet from the mouth to the headwaters. Not just where you are fishing...its the average of the full length of water.
- And, it is not just the water that is included, it is the entire streambed. This is to avoid times when the water is in in a flood stage or a drought.
- So, potentially, even a dry streambed could be navigable and a full, flowing, or flooded stream might not be.
- So, to determine the width of the water from "the mouth up," the measurement is actually taken from the "gradient boundary" on each bank.
- A gradient boundary is defined as, "a gradient of the flowing water in the stream, and is located midway between the lower level of the flowing water that just reaches the cut bank and the higher level of it that just does not overlap the cut bank." Easy, huh?
- However, there are a few waters that were included with old Spanish or Mexican land grants that made no distinction between "navigable" or "non-navigable." So, what about them?
- In these cases, the streams were considered vital for household water and irrigation, and if the streams were "perennial streams," they were for public use.
- A Perennial Stream is a stream that flows most of the year.
- So, in these cases, you can use the water if that waterway flows most of the year.
- Who owns the riverbed?
- In most cases, it is part of the waterway, and therefor public when the water is public.
- Some deeds do include the riverbed, but in those cases, the 1929 "Small Bill" applies.
- 1929 "Small Bill" declares that this "riverbed ownership" does not "impair the rights of the general public and the state in the waters of the streams."
- So, you can use the water, but not the bank or streambed on these waters.
But what about a Lake?
- In Texas, a lake is public when a Navigable Stream is dammed.
- This one is actually pretty strait forward, if it is a dammed up public water, then you can fish the lake. You can fish anywhere/everywhere on that lake, including the dock that someone is yelling at you for fishing (but don't block their dock or get onto it.)
- But, most stock tanks and flood control ponds are not dammed up public waters, and are therefor private waters.
So, to sum it all up:
- If the waterway is navigable (averages 30 feet wide for its length), you can fish there.
- If the waterway is part of an old Spanish/Mexican land grant and is a perennial stream, you can fish there.
- But don't put your life at risk if someone is threatening you with a gun!