What's Up With That?: Salmon Creek: The water is public, the banks are not

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I’ve been kayaking Salmon Creek since it’s been flooded — it’s beautiful! I recently got a kayaking book and it says all of the waterways from Vancouver Lake to Lake River to Salmon Creek are public. Only the lands adjoining the waterways are private. However, when you kayak west on Salmon Creek under the Lakeshore Avenue overpass, there are two signs that say: “No trespassing, trespassers will be prosecuted.” The signs are at the water’s edge facing the overpass rather than on land facing the water. One homeowner came out onto his porch and watched me kayak around the river on that side. Are these waterways public?

— Sheryl Wagner

Pretty much. More or less. It depends.

That’s the answer Jilayne Jordan at Vancouver-Clark Parks and Recreation came up with after your question sent her on a wild goose chase. She consulted the state Department of Natural Resources and Clark County’s prosecuting attorney, Environmental Services Department and Real Property Services office.

What she found was a long-standing legal tradition of free waterways but no absolute consensus, plus a patchwork of platting practices that stop some property lines at the water’s edge while sending others way down deep into the muck.

The common law principle that water is a public or community resource with no individual owner has a long history in the United States. In “An Introduction to Washington Water Law,” a report issued in 2000, the Washington State Attorney General said that water in its naturally flowing state is not subject to ownership.

But that’s not the final word. “State courts have disagreed with (the 2000 report) on at least one occasion, particularly with regard to bodies of water defined as ‘non-navigable,’ like Salmon Creek,” Jordan said.

And, properties that were platted a century or more ago often have property lines that extend all the way to the middle of the creek, while more recent plats tend to stop at the high-water mark, she said.

“The result is a patchwork, where one property owner may own the land all the way to the middle of the creek, but the property owner next door does not,” Jordan said.

“As a result, the general rule of thumb for paddlers on non-navigable bodies of water, like Salmon Creek, is ‘stay in your boat,’” she said. “Launching or coming ashore anywhere other than a public park, boat launch or your own private property would definitely be considered trespassing. Even getting out of your boat to stand in the water in hip-waders to fish could be considered trespassing, depending on how far that particular property line extends into the creek.”

The no trespassing signs you saw sound like they were aimed at landlubbers headed for water — that is, keeping people from meandering down off Lakeshore Avenue and across private property to get to Salmon Creek. The man who watched you paddle around sounds like he was on the lookout for trouble — but you didn’t give him any because you stayed in your boat.

By the way, nonmotorized vessels, like canoes and kayaks, don’t need to be registered or permitted — but state law does require a life jacket (one per person). And Jordan recommends doing a little research on any waterway you’re going to explore — just to be aware of hazards, currents, other traffic or anything else that can surprise you while you’re trying to enjoy a peaceful voyage.

Scott Hewitt

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