Establishing a Roster
Despite the legal significance of determining whether a particular waterway is or is not navigable, a comprehensive roster of Indiana waters declared navigable has not existed. In part, this absence can be explained by the essentially judicial character of the doctrine of navigability. Since a determination of navigability is ultimately based upon a judicial finding which is both waterway and site specific, any roster is subject to criticism because it is incomplete.
In addition, legislative declarations have identified specific waters as being navigable (or public highways). Although most legislative declarations occurred before 1850, more recently governmental agencies have also determined questions of navigability. Notable examples include the U.S. Army Corps of Engineers, the Federal Energy Regulatory Commission, and, at the state level, the Indiana Natural Resources Commission. A determination by any of these legislative or administrative entities is subject to judicial scrutiny and modification.
Even within these limitations, a roster of waters declared navigable can be productive for efforts to regulate and manage the state's waters. With an understanding that any listing of waterways declared navigable is necessarily imperfect and subject to adjustments as new decisions are made, the roster which follows is intended to aid in the regulatory process and in a general public awareness of waterway usage.
A few explanatory remarks are appropriate to the structure of the roster. A waterway is presumed to be navigable at all points downstream from a determination of navigability. A judicial determination as to whether a particular water is or is not navigable generally supersedes a legislative or administrative decision. Unless otherwise refuted, a legislative determination of navigability is presumed to demonstrate historical usage of a waterway for navigation; and a later statutory repeal does not negate the navigability of the waterway.
A declaration of navigability or nonnavigability must be based upon a primary source. These primary sources are a declaration by a court, the legislature, or an agency with jurisdiction over navigable waters. A waterway declared by a primary source to be nonnavigable is identified in brackets. If a waterway is unlisted, no declaration of navigability or nonnavigability has been located from a primary source.
Secondary sources may be applied to determine the geographic limitations of navigability for a particular waterway. Secondary sources include courthouse records, published county histories, periodicals, newspaper articles, interviews, and similar evidence. For example, in the early 19th Century, the Indiana General Assembly sometimes identified a stream as being a Public highways downstream from a particular mill. Secondary sources are typically applied to determine where the mill is believed to have been located.
Reported state or federal court decisions are applied in seeking to resolve legal issues of navigability which bear upon particular waters (example: where a navigable river is channelized, the new channel becomes navigable and the former channel loses its navigable character when sedimentation causes the bed to surface). Although this roster does not include citations to the authorities applied in determining navigability, these authorities can be obtained through the Indiana Natural Resources Commission at:
Natural Resources Commission
Division of Hearings
Indiana Government Center-North
100 North Senate Avenue, Room N103
Indianapolis, Indiana 46204-2200; or
nrcrules@nrc.in.gov