By Sarah Everhart
When can a government or environmental non-profit inspector such as a Riverkeeper perform an inspection by water of your farm? This question is often raised and the answer to when and where these types of inspections can occur all depends on one factor: navigability of the water body in question.
Navigable Water Bodies
Legal title to all navigable waters and to the soil below the mean high-water mark of those waters is held by the State in trust for the public. This means that the State controls this area and it is open to navigation by State inspectors, environmental groups, and the public at large. When is water considered navigable? Water is considered navigable when it is subject to the ebb and flow of the tides. However, this does not bestow upon the State or the public at large any rights to enter the banks or land above the mean high-water mark of navigable waters.
Non-Navigable Water Bodies
Legal title to non-navigable waters and the soil below such waters depends on the wording of the particular deed for the piece of farmland. If a property bounds a non-navigable water then the property owner owns to the center of said water body. Alternatively, a property owner may own the entire non-navigable water body if that is indicated in the language of the deed. The State and/or the public do not have any legal right to enter non-navigable waters unless expressly granted entry to said waters in a deed. Therefore, an inspection of these waters must be done pursuant to a search warrant or other legal means. For an in-depth analysis of the government’s right to inspect farm lands check out this ALEI publication- http://drum.lib.umd.edu/bitstream/1903/16310/1/Farm%20Entry.pdf