New York State is the sovereign owner of the beds of “navigable water” in the state. This ownership gives the state the right to control the bed and to ensure that navigable waterways shall forever remain public highways. A stream and any contiguous wetlands may be classified as “navigable” if it is large enough for operation of a canoe or larger boat. For information about state ownership of a waterway and the activities for which state approval is required, contact the Lands Now or Formerly Underwater program of the NYS Office of General Services.

As a general rule, the ownership and therefore control of the bed of non-navigable streams or other non-navigable bodies of water is vested in the proprietors of the adjoining uplands, unless their deed provides otherwise. In other words, if you own the bank of a non-navigable stream, you probably own the streambed and are referred to as a riparian owner.

Regardless of who owns a stream, various government entities control activities that may impact navigation, public safety, the environment, or the rights of other property owners.

Owning a stream does not give you the right to do whatever you please with it.

In New York State, water in a stream is not “owned” by anyone. A more relevant question is:

Water rights and water laws vary from state to state. New York follows the riparian rights doctrine developed under common law. Common law means that the rules were not enacted by the legislature, but were developed by the courts through the decisions they hand down. Riparian rights doctrine allows the owners of land bordering on a watercourse to withdraw a “reasonable” amount of water. The courts have generally held that domestic use or use on the land is “reasonable,” while removal of water from the riparian property is “unreasonable.” Because all landowners along a stream have “riparian rights,” none can use the water so as to deprive the others of their rights. If a water use interferes with the “reasonable” use of another riparian owner, the aggrieved party must go to court to protect their rights.

In some New York watersheds (such as the Susquehanna, Delaware, and Great Lakes Basins), multi-state commissions may regulate water use. These agencies can protect other water users and the environment by reviewing and approving a proposed water withdrawal. Although there may be fees associated with water withdrawal permits, this approval is a police power function and does not confer a property right or “ownership.”

Restoration of stream problems is generally the responsibility of the private landowner. Although various government agencies have regulatory jurisdiction over how a stream is managed, it is not their job to come and “fix” your stream. Highway departments can only perform stream work needed for protection of roads, bridges, and culverts. Other government resources are more likely to be available to assist with a project that restores a degraded stream system, rather than one designed for localized protection of private property. For information about stream maintenance and restoration assistance, contact the county Soil and Water Conservation District.

Private ownership does not include the right to do whatever you consider necessary to “fix” stream problems. Assume that every stream is regulated unless you determine otherwise.

Yes, quite possibly. In accordance with common law, courts have followed the adage “use your own property in such a manner as not to injure that of another.” This means that no landowner, public or private, has a right to use their land in a way that substantially increases flood or erosion damages on adjacent lands. A municipality or property owner may thus be liable for construction, improvements, or modifications that they should reasonably have anticipated to cause property damage to adjacent property. The lack of proper planning, design, and execution thereof may be considered a lack of good faith, and hence negligence with regard to damages that subsequently occurred.

Private ownership does not include the right to do whatever you consider necessary to “fix” stream problems. Assume that every stream is regulated unless you determine otherwise.

Sometimes. Courts have generally not held governmental units and private individuals responsible for naturally occurring hazards such as stream flooding or bank erosion that damage adjacent lands. In keeping with this principle, a municipality would not be liable for failure to restrain waters between banks of a stream or failure to keep a channel free from obstruction that it did not cause. However, a small number of courts have held that government entities may need to remedy hazards on public lands that threaten adjacent lands. In addition, land owners and governments are liable if they take actions that increase the hazards.

Private ownership does not include the right to do whatever you consider necessary to “fix” stream problems. Assume that every stream is regulated unless you determine otherwise.

Possibly. The owner of a dam or other water control structure is responsible for inspecting and maintaining it. Where there is a duty to act and the risk of not acting is reasonably perceived, then failure to take appropriate actions may be considered negligent conduct.

Private ownership does not include the right to do whatever you consider necessary to “fix” stream problems. Assume that every stream is regulated unless you determine otherwise.

Yes, quite possibly. In fact a careful analysis of hundreds of cases in which the lawsuit involved permitting indicates that a municipality is vastly more likely to be sued for issuing a permit for development that causes harm than for denying a permit based on hazard prevention regulations. The likelihood of a successful lawsuit against a municipality for issuing a permit increases if the permitted activity results in substantial flood, erosion or physical damage to other private property owners.

Private ownership does not include the right to do whatever you consider necessary to “fix” stream problems. Assume that every stream is regulated unless you determine otherwise.

Municipalities regularly issue permits for activities that comply with existing laws, but might still be at risk of damage. For example, floodplain development regulations generally apply only to areas mapped as the 100-year floodplain. Yet significant flooding and erosion damages can and do occur outside of these regulated flood-prone areas. Some municipalities address this additional risk by attaching conditions to their approvals for those projects with identified risks. These conditions can clearly state that the municipality is not obligated to fix personal property in the event of damage. One town granted approval for a driveway bridge that met all applicable standards, but attached material clearly warning the applicant about the hazards of driving through flood waters, the risk that emergency vehicles may be unable to reach the house during floods, the potentially high maintenance costs, and the potential liability for the owner if the project results in damage to other property.

Private ownership does not include the right to do whatever you consider necessary to “fix” stream problems. Assume that every stream is regulated unless you determine otherwise.

No. In general, landowners have no right to make a “nuisance” of themselves. Courts have broadly and consistently upheld regulations that prevent one landowner from causing a nuisance or threatening public safety.

Private ownership does not include the right to do whatever you consider necessary to “fix” stream problems. Assume that every stream is regulated unless you determine otherwise.

Be “reasonable”. The overall issue, in most instances, is the “reasonableness” of an action by the community or property owner. Due to advances in technology and products, there is an increasingly high standard of care for “reasonable conduct.” The “act of God” defense is seldom successful because even rare flood events are now predictable. As a precaution, technical assistance from stream professionals should be obtained prior to implementing any stream project. Because a well-designed project is less likely to damage other lands, this reduces the potential basis for legal action. And if you are sued, the best defense is a well-documented record showing “due diligence.” That is, that you have done sufficient analysis and the design to demonstrate the adequacy of the project with “a reasonable degree of certainty.”

Private ownership does not include the right to do whatever you consider necessary to “fix” stream problems. Assume that every stream is regulated unless you determine otherwise.