State and DOT level administration of land ownership issues across navigable waterways

GEORGIA DOT RESEARCH PROJECT 19-19 FINAL REPORT
STATE AND DOT LEVEL ADMINISTRATION OF LAND OWNERSHIP
ISSUES ACROSS NAVIGABLE WATERWAYS
OFFICE OF PERFORMANCEBASED MANAGEMENT AND
RESEARCH 600 WEST PEACHTREE STREET NW
ATLANTA, GA 30308

Technical Report Documentation Page

1. Report No. FHWA-GA-21-1919

2. Government Accession No. N/A

4. Title and Subtitle
State and DOT Level Administration of Land Ownership Issues Across Navigable Waterways

7. Author(s)
Karen M. Johnston, John T. Marshall, Claire M. Bass, Audrone V. Durham, Maggie K. Garrett, Chanel P. Zeisel.

3. Recipient's Catalog No. N/A
5. Report Date December 2020
6. Performing Organization Code N/A 8. Performing Organization Report No. N/A

9. Performing Organization Name and Address
Georgia State University College of Law 85 Park Place NE Atlanta, GA 30303

10. Work Unit No. (TRAIS) N/A
11. Contract or Grant No. P.I. NO. 0016503

12. Sponsoring Agency Name and Address Georgia Department of Transportation Office of Performance-Based Management and Research One Georgia Center, 600 West Peachtree Street NW Atlanta, GA 30308
15. Supplementary Notes

13. Type of Report and Period Covered Final Report January 2020-December 2020
14. Sponsoring Agency Code N/A

Conducted in cooperation with the U.S. Department of Transportation, Federal Highway Administration.

16. Abstract This report examines current legal right of ownership issues arising in right-of-way land acquisition for highway projects crossing navigable waterways. The objective of this report is to help the state and GDOT be better positioned to deliver its program in a timely manner, simplify administrative understandings and efforts between agencies, reduce unnecessary proceedings, and address property ownership with broad judicious consideration for the private and public rights, therefore resulting in significant cost savings and time for delivery. Additionally, this report includes limited legal research of the state's rights in navigable waters based on expiring 50-year permits received from the federal government.

17. Key Words

18. Distribution Statement

Right-of-Way; Land Acquisition; Navigable Waters; DOT; Highway projects; No restrictions permits.

19. Security Classif. (of this report) Unclassified
Form DOT F 1700.7 (8-72)

20. Security Classif. (of this page) Unclassified

21. No. of Pages 63

22. Price Free

Reproduction of completed page authorized.

GDOT Research Project 19-19
Final Report
STATE AND DOT LEVEL ADMINISTRATION OF LAND OWNERSHIP ISSUES ACROSS NAVIGABLE WATERWAYS
By Karen M. Johnston, Associate Director, Center for the Comparative Study of Metropolitan Growth,
Georgia State University College of Law John T. Marshall, Associate Professor of Law, Georgia State University College of Law
Claire M. Bass, Audrone V. Durham, Maggie K. Garrett, Chanel P. Zeisel, Graduate Research Assistants, Georgia State University College of Law
Georgia State University College of Law
Contract with Georgia Department of Transportation
In cooperation with U.S. Department of Transportation Federal Highway Administration
December 2020
The contents of this report reflect the views of the author(s) who is (are) responsible for the facts and the accuracy of the data presented herein. The contents do not necessarily reflect the official views or policies of the Georgia Department of Transportation or the Federal Highway Administration. This report does not constitute a standard, specification, or regulation.

TABLE OF CONTENTS
LIST OF TABLES....................................................................................................................................ii LIST OF ABBREVIATIONS..................................................................................................................iii EXECUTIVE SUMMARY ...................................................................................................................... 1 ACKNOWLEDGEMENTS ...................................................................................................................... 3 INTRODUCTION .................................................................................................................................... 4 CHAPTER 1. RESEARCH METHODOLOGY ...................................................................................... 6 CHAPTER 2. NAVIGABLE WATERS UNDER FEDERAL AND STATE LAW: A DISTINCTION WITH IMPORTANT IMPLICATIONS................................................................................................... 9
Explaining the Major Emphasis on Identifying Waters Regulated Under Federal Law..................... 10 Identifying Navigable Waters Under Georgia Law: Impact to Right-of-Way Acquisitions .............. 11
Navigable Streams ........................................................................................................................... 14 Non-Navigable Streams................................................................................................................... 17 Tidewaters ....................................................................................................................................... 18 Applying Georgia Law in Right-of-Way Practice........................................................................... 22 CHAPTER 3. OPPORTUNITIES FOR IMPROVED COORDINATION IN GDOT'S CURRENT RIGHT-OF-WAY ACQUISITION PROCESS ...................................................................................... 24 Right-of-Way Acquisition for State Owned Properties ...................................................................... 24 Federal and State Parcel Identification and Right-of-Way Acquisition: Interviews with DOT Team Members and Special Assistant Attorney Generals ............................................................................ 25 CHAPTER 4. BEST PRACTICES OF PEER STATE DEPARTMENTS OF TRANSPORTATION IDENTIFIED THROUGH SURVEY AND INTERVIEWS.................................................................. 29 Time-Limited Intergovernmental Right-of-Way Agreements ............................................................ 32 State of Georgia Basis for Temporal Limitations in Granting Interests in Property ....................... 33 Federal Basis for Temporal Limitations in Granting Interests in Property ..................................... 35 CHAPTER 5. RECOMMENDATIONS................................................................................................. 37 CONCLUSION....................................................................................................................................... 45 REFERENCES ....................................................................................................................................... 46 Appendix A ............................................................................................................................................. 52 Appendix B ............................................................................................................................................. 53
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LIST OF TABLES Table 1: Navigability Determinations Pursuant to Georgia Law, A Non-Exhaustive List........... 16 Table 2: Summary of State Ownership of Submerged Lands under Public Trust Doctrine ........ 23 Table 3: Anecdotal Overview of State Navigable and Federal Parcel Identification Process...... 26 Table 4: Survey and Interview Responses ................................................................................... 29
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AASHTO CDOT DEP DNR DNRC FDOT GDOT HED IDOT MDOT NCDOT NEPA ODOT OES RLA SAAGs SCDOT SPC TDOT TIIF TVA USACE VDOT VMRC WRD

LIST OF ABBREVIATIONS
American Association of State Highway and Transportation Officials Colorado Department of Transportation Florida's Department of Environmental Protection Department of Natural Resources Montana's Department of Natural Resources and Conservation Florida Department of Transportation Georgia Department of Transportation Highway Easement Deeds Illinois Department of Transportation Maryland Department of Transportation North Carolina Department of Transportation National Environmental Policy Act Ohio Department of Transportation Georgia's Office of Environmental Services Revocable License Agreement Special Assistant Attorney Generals South Carolina Department of Transportation State Properties Commission Tennessee Department of Transportation Florida's Trustees of Internal Improvement Trust Fund Tennessee Valley Authority United States Army Corps of Engineers Virginia Department of Transportation Virginia Marine Resources Commission Wildlife Resources Division of the Department of Natural Resources

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EXECUTIVE SUMMARY
This report examines ways that the Georgia Department of Transportation (GDOT) can improve practices for acquiring right-of-way for highways crossing navigable waters, including recognizing the presence of state properties, acquiring necessary property interests in a timely manner for state and federal parcels within the project footprint, and inventorying acquired interests to allow for ready renewal or transfer of those property interests. Work conducted by the research team includes: a review of GDOT's current right-of-way acquisition process for projects crossing navigable waters; examination of problems identified by staff; analysis of relevant law; a multi-state survey with peer departments of transportation; and interviews with GDOT and peer departments of transportation.
Results from this research study indicate a lack of appreciation across relevant GDOT departments about the distinction between a federal navigable water and a state navigable water, and how this distinction can impact right-of-way acquisition processes and thus, program delivery. This distinction is highly nuanced and not well understood by other state departments of transportation, as discovered through results from the survey and interviews; however, it can have significant impacts on timely program delivery, particularly in Georgia where easements across state lands must be approved by the legislature.
The report details six specific recommendations for improving GDOT's right-of-way land acquisition and recording-keeping with respect to state and federal parcels:
1. Hold a training webinar to educate necessary GDOT staff about the distinction between a federal navigable water and water navigable under Georgia law, why this distinction matters, and its importance to right-of-way acquisition and timely project delivery.
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2. Assess and amend project checklists and/or early stage conceptual team meeting agendas to include consideration of state navigable waters.
3. Amend the External Right of Way Manual to reference state navigable waters. 4. Document detailed procedures for state and federal parcel right-of-way acquisition. 5. Digitize long-term easement agreements and add to the GDOT's Project
Management/Enterprise System Software. 6. Request that the Georgia Department of Natural Resources create and maintain a GIS
overlay of tidally-influenced land and list of state navigable waters.
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ACKNOWLEDGEMENTS The authors would like to thank the following GDOT staff for their extensive input on this project and development of the final recommendations: Darryl VanMeter, State Innovative Delivery Administrator; Troy Byers, State Right of Way Administrator; Matthew Cline, General Counsel; Tiffany Robinson, Local Government Manager; Kimberly Boyd, Special Parcels Coordinator; and Lisa Westberry, Special Projects Coordinator. The authors would also like to thank Supriya Kamatkar and Sarah Lamothe in the Office of Performance-Based Management and Research for their project management assistance.
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INTRODUCTION
A fundamental responsibility of state government is the prudent administration of public property. This is no easy task. States own a wide range of properties, including buildings, forestlands, wetlands, and submerged lands. They also hold a diversity of legal interests in those properties, including fee ownership, leasehold interests, and easements. Thoughtful stewardship of these state properties and property interests includes important concerns about maintaining these assets. As the Georgia Department of Transportation's (GDOT) June 2019 Request for Proposals details, stewardship also requires skillful administration of state properties. The following report responds to GDOT's request for review of its practices for acquiring right-ofway for highways crossing navigable waters, including recognizing the presence of state properties, acquiring necessary property interests in a timely manner for state and federal parcels within the project footprint, and inventorying acquired interests to allow for ready renewal or transfer of those property interests.
The right-of-way acquisition process is time-consuming and complex. This is even more true when right-of-way is located over navigable waters due to state constitutional provisions, state statutes, and case law establishing public and private rights and ownership in waters and the submerged lands beneath them. Our analysis of GDOT's current right-of-way acquisition processes for highways crossing navigable waterways reveals noteworthy opportunities for improving ways that property is legally accounted for and technically transacted. These opportunities for improvement will help diminish the possibility of oversight or confusion that could result in multiple agencies and private property owners appearing to have a legal right of
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ownership in potentially overlapping portions of the right-of-way area with no clear way to sort it out beyond a court proceeding. The objective of this research project was to help the State and Department be better positioned to deliver its program in a timely manner, simplify administrative understandings and efforts between agencies, reduce unnecessary proceedings, and address property ownership with broad judicious consideration for the private and public rights, therefore resulting in significant cost savings and time for delivery.
The report proceeds as follows: our Introduction offers a brief overview of the research needs and project objectives. Chapter 1 outlines the research methodology. Chapter 2 examines the legal rules and doctrines that necessarily inform GDOT's acquisition and administration of state navigable waters and federal parcels, including an explanation of navigability under federal law and Georgia law, why this federal-state distinction matters, and how it affects property ownership and right-of-way acquisition. Chapter 3 reviews GDOT's current right-of-way acquisition process and identifies opportunities for improved coordination through interviews with GDOT team members and staff from peer departments of transportation from Florida to Maryland. Chapter 4 discusses and compares peer state departments of transportation processes based on the results of a nationwide survey and interviews. Chapter 4 also includes an analysis of the state's rights in federal lands pursuant to 50-year easements received from the federal government and the steps GDOT might take to track the expiration of these agreements. Finally, Chapter 5 proposes recommendations that will create a shared understanding of the difference between waters navigable under Georgia and federal law, foster an appreciation for why it matters that waters may be designated as navigable under state law, and create and memorialize project delivery process reminders concerning identification of Georgia navigable waters. The recommendations will also present best practices among peer departments of transportation to catalogue and track long-term easement agreements.
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CHAPTER 1. RESEARCH METHODOLOGY
An analysis of the Department's right-of-way acquisition processes for federal parcels as well as waters navigable under Georgia law is informed by a range of sources and authorities. This report includes a review of GDOT's current right-of-way acquisition process for projects crossing navigable waters, examination of problems identified by staff, analysis of relevant law, results of a multi-state survey to understand how peer departments of transportation address this issue, and interviews with GDOT and peer department of transportation staff concerning acquisition of right-of-way in federal parcels and state navigable waters. The objective of deploying these several qualitative and legal research methods is to help GDOT identify ways to deliver its projects in a timely manner, simplify administrative understandings and efforts between agencies, reduce unnecessary proceedings, and address property ownership with broad judicious consideration for the private and public rights, thus resulting in significant cost savings and time for delivery.
A person's claim to possession of property is only as strong as that person's rights to the property. The state's claim to possession of waters navigable under state law and their submerged lands is based on Georgia constitutional law, statutory law, and a long line of case law and common law doctrines. This report surveys the authorities that recognize state ownership of state navigable waters and their submerged lands and, thus, allow for GDOT to obtain rights in this state-owned property. Relevant GDOT policies, procedures, and legal agreements have also been reviewed.
The core of this research project involved scrutinizing the process for securing necessary rights to lands submerged below state navigable waters from the state of Georgia and rights in
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federal parcels from federal agencies, including the U.S. Army Corps of Engineers (USACE). Interviews were conducted with GDOT staff and stakeholders to understand the current process for securing rights to state and federally-owned land and to identify opportunities for improving the right-of-way land acquisition process, particularly for projects crossing state navigable waters. Over 200 hours of interviews were conducted throughout the six-month study period, and the findings are incorporated into the recommendations presented in this report. A full list of interviews can be found in Appendix A.
Georgia is not unique in recognizing state ownership of waters deemed navigable under state law. As explained in the report's legal analysis, the public trust doctrine provides a common provenance for a state's assertions of ownership in tidal waters as well as a substantial share of submerged lands lying beneath fresh waters. Neighboring and nearby state departments of transportation were canvassed to identify best practices that may be tailored to Georgia's legal framework, technical context, and administrative processes. In addition, a nationwide, online survey was conducted through the American Association of State Highway and Transportation Officials (AASHTO) Technical Subcommittee on Right-of-Way. Qualtrics survey software was utilized. State department of transportation administrators with knowledge of right-of-way land acquisition procedures were asked four questions in the survey and given the opportunity to provide general comments at the end. The information collected from the GDOT staff and stakeholder interviews, coupled with the review of law and GDOT policy documents formed the basis for the development of the survey questions. The following four survey questions were presented:
1. Does your state maintain a map or list of State Navigable Waters? Yes or No. 2. Does your department have a process for obtaining the necessary property right(s) for a
roadway project to cross State Navigable Waters or Federal Lands? Yes or No.
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If a YES response was received, respondents were asked to explain the process, provide a citation to the relevant department policy, link to any documents on their website, or email any relevant materials to the research team. 3. If you answered YES to #2, who is the person overseeing or coordinating the process for securing the right for a roadway project to cross State Navigable Waters or Federal Lands? 4. In certain circumstances, the property rights for roadway projects that cross State Navigable Waters or Federal Lands are secured through a Time Limited Intergovernmental Agreement. Does your department have a process for keeping track of or renewing such time-limited easements providing for construction, operation and maintenance of public roads? Yes or No. If a YES response was received, respondents were asked to provide the details of the department's tracking process. AASHTO Technical Subcommittee members were initially given two weeks to respond, but the survey was extended another week to enable broader participation. Nine state departments of transportation responded to the online survey: Alaska, Ohio, Delaware, Colorado, Vermont, Illinois, Alabama, Texas and Montana. Several neighboring state departments of transportation were specifically targeted for survey responses. These responses were collected by phone interviews instead of through the online survey. The states included were Florida, Maryland, North Carolina, South Carolina, Tennessee, and Virginia. Additional interviews were conducted with these states to clarify statespecific processes.
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CHAPTER 2. NAVIGABLE WATERS UNDER FEDERAL AND STATE LAW: A DISTINCTION WITH IMPORTANT IMPLICATIONS
In this section of the report, we examine the importance of appreciating the distinction
between waters designated navigable under federal law and Georgia law. It is easy to overlook
the significance of waters navigable under Georgia law. After all, roadway development projects
are driven in significant respects by waters subject to federal regulation. Bays, lakes, rivers,
creeks, and wetlands that meet the definition of "navigable waters" under the Rivers and
Harbors Act and/or "waters of the U.S." under the Clean Water Act are subject to often complex
permitting processes.i This section expounds the overlapping definitions of waters navigable
under Georgia and federal law as well as the importance of completing an early assessment of
whether a water qualifies as navigable under Georgia law. As this report details, the concept of
navigability under Georgia law is not generally appreciated. Shortcomings in understanding the
legal parameters of navigability under Georgia law mean that the existence of a state-owned
parcel can be overlooked in early project coordination efforts, jeopardizing timely project
delivery.
i Although this report concerns waters considered navigable under Georgia law, the concept of navigability under federal law overlaps with Georgia's definition of the concept. Insofar as GDOT's project development process must also sometimes consider impacts to federal navigable waters, we provide a brief explanation of the definition of navigable waters under federal law. "Navigability" has been interpreted for constitutional Commerce Clause purposes in multiple U.S. Supreme Court decisions. Initially, the Daniel Ball test found a waterbody "navigable-infact" when, "used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water." Robin Kundis Craig, "A Comparative Guide to the Eastern Public Trust Doctrines: Classifications of States, Property Rights, and State Summaries," Penn State Environmental Law Review 16 (2007) 16, citing The Daniel Ball, 77 U.S. 557, 563 (1870). The Montello decision later expanded Daniel Ball to include waters, in their natural state, being used for commerce, regardless of the mode of commerce, that were capable of transportation or commerce by the public. Craig, "A Comparative Guide to the Eastern Public Trust Doctrines," 16.(citing The Montello, 87 U.S. 430, 441-42 (1874)). Eventually the Court held artificial improvements may make a water navigable-in-fact diminishing the "ordinary" and "natural" conditions required by the Daniel Ball and Montello criterion. Craig, "A Comparative Guide to the Eastern Public Trust Doctrines," 16.(citing U.S. v. Appalachian Electric Power Co., 311 U.S. 377, 40708 (1940)). Ultimately, this means the Supreme Court has defined "navigable waters of the United States" for constitutional Commerce Clause purposes as interstate waters that are navigable-in-fact or are "susceptible of being rendered so." Rapanos v. U.S., 547 U.S. 715, 723 (2006). It is important to note, however, that different standards, definitions, and interpretations remain for the terms "navigability" and "navigable waters of the United States" and "waters of the United States."
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Explaining the Major Emphasis on Identifying Waters Regulated Under Federal Law
Significant federal permitting requirements can attach to projects affecting a range of surface waters.ii Waterways potentially supporting commercial traffic are regulated by the
federal Rivers and Harbors Act. This law, which is administered by USACE, ensures that tidally
influenced waters and waters that (a) were used in interstate commerce, (b) are currently used in
commerce, or (c) are susceptible of being used in interstate or foreign commerce remain safe and viable thoroughfares.1 In Georgia, USACE jurisdiction under the Rivers and Harbors Act extends
from the state's territorial seas, to coastal bays and inlets, to significant stretches of the state's major rivers, including the Altamaha, the Chattahoochee, and the Flint (to name several).2 It also
bears noting that under Section 9 of the Rivers and Harbors Act and the General Bridge Act of
1946, the U.S. Coast Guard is charged with preventing interference with navigability of rivers,
and is given exclusive control to issue permits for bridges or other obstructions over navigable waters of the United States.iii
USACE regulatory jurisdiction also extends beyond navigation-related concerns. The
Clean Water Act aims to safeguard and restore the biological, physical, and chemical integrity of
ii This report focuses mainly on the U.S. Army Corps of Engineers regulatory jurisdiction over waters navigable under federal law. It is worth noting that there are other federal agencies that may have jurisdiction over navigable waters for reasons not directly related to navigation, including the admiralty jurisdiction of federal courts and the regulation of hydroelectric dams. See Craig, Robin Kundis, "Navigability and its Consequences: State Title, Mineral Rights, and the Public Trust Doctrine" (June 12, 2014). Proceedings of the 2014 Rocky Mountain Mineral Law Foundation Summer Institute (2015 Forthcoming), SSRN: https://ssrn.com/abstract=2449374. The federal definitions of navigability used in these contexts may differ from the concept of federal navigability explored here. See Craig, Robin Kundis, "Navigability and its Consequences."
iii Bridge projects over navigable waters of the United States require a bridge permit questionnaire to be completed and submitted to the FHWA for a determination of the need for a U.S. Coast Guard Section 9 permit. Georgia Department of Transportation, Environmental Procedures Manual (February 13, 2012), 49, http://www.dot.ga.gov/PartnerSmart/DesignManuals/Environmental/GDOT-EPM.pdf, last accessed September 21, 2020.
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waters under its jurisdiction.3 One of the chief tools for protecting waters is the USACE's
permitting requirement for dredging and filling activities. This program is also known as the
Section 404 permitting program. Although the USACE's Clean Water Act jurisdiction is
currently a contested matter,iv it is for our purposes sufficient to note that the USACE
involvement in projects involving surface waters is broad. Under the Clean Water Act, a dredge
and fill permit is required for almost any construction project touching not only traditionally
navigable waters, but also waters that form the tributaries of navigable waterways, and wetlands
directly connected to those waterways.v
Identifying Navigable Waters Under Georgia Law: Impact to Right-of-Way Acquisitions
As previously stated, an owner or possessor's claim to property is only as strong as the
rights she or he has in that property. Knowing that a water is navigable under federal law
provides, at best, a narrow and incomplete account of those rights. It confirms an owner or
possessor's responsibility to obtain certain federal permits to alter those waters in a significant
way. vi It also gives notice of a navigational servitude that, generally speaking, protects public
iv See Nicole E. Granquist and Meghan A. Quinn, "U.S. EPA and the Corps Release WOTUS Rule That Closely Adheres to Justice Scalia's Rapanos Opinion," Eastern Water Law & Policy Reporter (March 2020): 27-32 (noting that parties had served 60-day notice letters informing the federal government of their intent to sue soon after the U.S. EPA and the U.S. Army Corps of Engineers released a pre-publication version of their joint final rule setting forth a new definition of Waters of the United States).
v The EPA and U.S. Army Corps' new joint rule defining Waters of the U.S. provides that adjacent wetlands are considered jurisdictional waters if they "abut" or "have a direct hydrologic surface connection to other jurisdictional non-wetland waters in a typical year." See Nicole E. Granquist and Meghan A. Quinn, "U.S. EPA and the Corps Release WOTUS Rule," Eastern Water Law & Policy Reporter (Mar. 2020): 27, 31.
vi Permitting requirements specific to the Clean Water Act and the Rivers and Harbors Act represent just two types of permitting hurdles. Landowners may also have to navigate other federal and state regulatory requirements. The National Environmental Policy Act (NEPA) "requires compliance with several environmental laws, regulations, and executive orders" (GDOT, Plan Development Process, 6-2). The NEPA review and permitting process can involve numerous agencies depending on the environmental resources found at the specific site(s) such as: historic resources and their boundaries, non-historic Section 4(f) resource boundaries (publicly owned parks, recreation areas, wildlife and waterfowl refuges), jurisdictional Waters of the United States (wetlands,
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right of access to waterways.vii But these details concerning a water's navigability under federal
law tell us relatively little about who holds more fundamental property rights in the waters and
the submerged lands beneath them, including the right to convey, use, or exclude others from
accessing those waters and submerged lands. Critical to determining who holds these basic rights
in Georgia is whether the waters are navigable under Georgia law.
In this subpart, we analyze important contours of Georgia law regarding navigability of
state waters. That is, we examine the statutes and case law that help us understand the waters that
qualify as navigable under Georgia law. Unlike federal navigable waters, state navigable waters,
standing alone, do not trigger any state level permitting in Georgia and therefore, their
significance in right-of-way acquisition can be easily overlooked. But as members of the
research team have found, this oversight could have significant consequences. Under the public
trust doctrine, state navigable waters and their submerged lands are held in trust by the State,
meaning the State is the presumed owner of such waters and lands with only a few very limited
exceptions. "The Public Trust Doctrine provides that public trust lands, waters and living
resources in a State are held by the State in trust for the benefit of all of the people, and
establishes the right of the public to fully enjoy public trust lands, waters and living resources for
a wide variety of recognized public uses."4
streams and open waters), vegetative buffers (25 feet for warm water streams and state waters, 50 feet for cold-water trout streams), cemeteries, threatened and endangered species and their habitat, and community facilities (Plan Development Process, 6-2). Surveys and reports are prepared as part of the NEPA process. For example, the Ecology Resource Survey Report describes and evaluates the waters and habitats on the site(s). The results will be submitted to: (1) U.S. Army Corps of Engineers for a jurisdictional determination for all streams, wetlands and open waters impacts to waters of the U.S. requires a permit under Section 404 of the Clean Water Act; (2) Georgia Department of Natural Resources Environmental Protection Division for buffered state waters determinations for all streams, wetlands, and open waters a variance would be required for disturbance of a buffered state water; and (3) Federal Highway Administration for their files (GDOT, Environmental Procedures Manual, 137).
vii See Dardar v. LaFourche Realty Co., 985 F. 2d 824, 832 (5th Cir. 1993) (explaining that "[w]hen a navigational servitude exists, it gives rise to the right of the public to use those waterways as `continuous highways for the purpose of navigation in interstate commerce.'" (quoting Kaiser Aetna v. U.S., 444 U.S. 164, 178 (1979)).
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The public trust doctrine dates back to Roman civil law and was later incorporated into English common law, which recognized "public rights in all tidewaters and the lands beneath."5 Tidewaters were considered England's only navigable waters.6 English common law was the law of the 13 original colonies and adopted by the 13 original states following the American Revolution; however, states were free to modify English common law after the Revolution.7
In the United States, there is not one public trust doctrine, but instead "over fifty different applications of the doctrine, one for each State, Territory or Commonwealth, as well as the federal government."8, 9 "[A] state's public trust doctrine outlines public and private rights in water and submerged lands by delineating five definitional components of those rights: (1) the submerged lands subject to state/public ownership; (2) the line or lines dividing private from public title in those submerged lands; (3) the waters subject to public use rights; (4) the line or lines in those waters that mark the limit of public use rights; and (5) the public uses that the doctrine will protect in the waters where the public has use rights."10
"Generally speaking, all navigable waters and the lands beneath these waters are subject to the Public Trust Doctrine."11 Navigable waters for the purposes of identifying waters and submerged lands held in trust by the state under the public trust doctrine are defined by each state; each state has a distinct definition and/or test that is separate from the federal navigable waters test and standards, previously discussed in this report. This distinction between state navigable waters and federal navigable waters is an important distinction to understand. State navigable waters affect ownership of submerged lands as the state is the presumed owner of those submerged lands. Submerged lands beneath state navigable waters affects right-of-way land acquisition. Georgia State Properties Commission (SPC) has the authority to grant Revocable License Agreements (RLA), allowing for temporary use of lands submerged by
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navigable waters, limited to a maximum of three years.12 Upon direction from the General Assembly, the SPC also issues non-exclusive easements, if required, to replace the RLAs and grant the easement holder long-term rights to use the lands.viii Georgia's conception of the public trust doctrine has slowly evolved over time, expanding to include more submerged lands than contemplated under the English common law. When Georgia adopted the English common law in 1784,13 the common law tidal test (ebb and flow test) was used to determine navigability and lands held by the state in public trust. Almost eight decades later navigability was expanded in Georgia to include certain non-tidal streams.ix
Navigable Streams
In 1863, Georgia codified the definition of navigability for non-tidal streams and the rights to owners of land adjacent to navigable streams. Under Georgia law, "[N]avigable stream" means a stream which is capable of transporting boats loaded with freight in the regular course of trade either for the whole or a part of the year. The mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable.14
Landowners adjacent to navigable streams have rights "to the low-water mark in the bed of the stream."15 The submerged lands up to the low-water mark in the bed of the stream are held in public trust by the state of Georgia. In other words, the State owns the submerged land.
viii Phone interview with CRD and SPC (April 13, 2020). ix Charleston and Savannah Ry. v. Johnson, 73 Ga. 306, 308 (1884) (waterbody running into the Savannah river that is seventy-five to two hundred feet wide, fourteen feet deep, rises and falls three and one-half feet with the tide is a navigable stream); see also Boardman v. Scott, 30 S.E. 982, 988 (Ga. 1897); Jones v. Oemler, 35 S.E. 375, 377 (Ga. 1900) ("There can be no question but that a state owns the beds of all tide waters within its jurisdiction."). Georgia statutorily defines navigable streams, non-navigable streams, navigable tidewaters and non-navigable tidewaters in code sections 44-8-2 through 44-8-10. The entire chapter 44-8-1 through 44-8-10 is devoted to water rights, but 44-8-1 discusses rights to running water a legal issue outside the parameters of navigability and this report.
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If, however, the adjacent landowner's grant of title dates prior to 1863 (when this change
was codified) and the lands are not adjacent to tidewaters then the adjacent landowner enjoys
title to the middle of the navigable water.16 This addition expanded public rights in non-tidal,
navigable streams by eliminating private ownership of the streambed unless a grant pre-dating
the adoption of the code could be presented.
Although the Georgia code defines a navigable stream, identifying a navigable stream in
practice is not an entirely straightforward endeavor. A list of Georgia navigable waters has never
been created, much less maintained.x However, because of Georgia's narrow definition of
navigable waters "capable of transporting boats loaded with freight in the regular course of
trade"the USACE list of Navigable Waters of the U.S. can serve as a starting point in Georgia,
albeit a starting point that is arguably over-inclusive.xi Judicial decisions can also provide
guidance. Georgia courts have interpreted ownership rights and navigability according to state
law cases. "[R]elatively few rivers, all below the fall line, are navigable under Georgia law."17
According to Pindar's Georgia Real Estate Law and Procedure, as well as additional legal
x The Georgia Department of Natural Resources Wildlife Resources Division (WRD) does not maintain a list of state navigable or non-navigable streams as WRD determines navigability on a case-by-case basis (email thread between WRD and GDOT staff; Interview with WRD staff (September 10, 2020)). That being said, WRD does maintain an online interactive map and list of waterways where boat ramps have been constructed within the state on waters believed by WRD to be navigable. The list of boat ramp locations is attached as Appendix B. It should be noted that this list is not exhaustive, nor does WRD update this list with any prospective projects. Moreover, WRD staff noted that the distinction between state navigable and non-navigable waterways is a thorny issue for the agency (interview with WRD staff, (September 10, 2020)). Furthermore, it is beyond the scope of this report to determine whether WRD has properly interpreted navigability or property rights under Georgia law.
xi According to some federal district courts, the federal definition of navigability would be slightly broader than Georgia's definition. See, e.g., Atlanta Sch. of Kayaking, Inc. v. Douglasville-Douglas Cty. Water and Sewer Auth., 981 F. Supp. 1469, 1473 (N.D. Ga. 1997) (granting kayaking company's motion for preliminary injunction against a local water and sewer authority, reasoning that "plaintiffs have a substantial likelihood of success on the finding that the Dog River is navigable under federal law because of the ability of kayaks and canoes to travel down the river and for Sparks and the School of Kayaking to travel down the river with students for pay"). Georgia's state courts have generally viewed navigability more narrowly than the Atlanta Sch. of Kayaking court, applying only to waters that a ship, as opposed to a kayak or other recreational watercraft, could apply in commerce. Under Georgia law, it is not enough that the water could support the rafting of timber or carry and canoe or kayak.
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research performed for this report, the following rivers are considered navigable or nonnavigable pursuant to Georgia state law:18

Table 1: Navigability Determinations Pursuant to Georgia Law, A Non-Exhaustive List

Non-Tidal Water

Summary of Interpretation

Altamaha River

Navigable for its entire length up to the junction of Oconee and
Ocmulgee rivers. "The Altamaha River is a navigable stream as defined by law and has been for many years."19

Armuchee Creek

Non-navigable stream under Georgia law, common law, and federal law according to the Georgia Supreme Court. Non-navigable because it did not meet the Federal definition of navigability as it was not capable of carrying commerce between states. Nor did it meet the definition of navigable stream under Official Code of Georgia, sec. 44-8-5(a) or the common law.20

Canoochee River

Non-navigable according to the Georgia Court of Appeals. Nonnavigable stream because it was small, crooked, and only used for rafting timber or fishing. Further, the stream was incapable of floating rafts unless water levels increased after periods of heavy rain. Because the river could not bear a boat with freight or passengers nor logs continuously sometimes unused for years at a timeit was not navigable pursuant to Georgia code.21

Chattahoochee River
Coosa River

Navigable up to Columbus, Georgia per Georgia Supreme Court. Nonnavigable above tide-water or where tide does not ebb and flow.22
Navigable in part.23

Flint River

Navigable to Bainbridge, Georgia according to a 1965 opinion by the Attorney General.24

Hughes Old River Claimed to be navigable.25

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Ichauwaynochaway Non-Navigable according to the Georgia Supreme Court. Non-

Creek

navigable, and navigational servitude could only be imposed if the creek

were navigable pursuant to state law. 26

Knoxboro Creek

Navigable according to the Georgia Supreme Court. The stream runs
into the Savannah river, 75-ft up to 200-ft wide, 14-ft deep, where tide
rises and falls, and it can accommodate passage of all watercrafts, thus is navigable.27

McQueen's Inlet

Navigable according to the Georgia Supreme Court. "[S]ufficient depth
at the point in question to support loaded boats, and no reference is made to any actual use of the inlet in navigation."28

Oconee River

Navigable to Milledgeville, Georgia. Milledgeville, Georgia began as a river port.29

Ocmulgee River
Satilla River Savannah River St. Mary's River Tallulah River

Navigable to Macon, Georgia. Because Macon, Georgia could be reached by steamboat from the Atlantic Ocean in antebellum days.30
Navigable for part of length.31 Navigable to Augusta, Georgia.32 Navigable for part of length.33 Non-navigable according to the Georgia Supreme Court.34

It is important to note that a determination of navigability under Georgia law affects boating rights. If a river is considered navigable under the code, then the public has the right of passage.35
Non-Navigable Streams
Under Georgia law, non-navigable streams and the underlying bed are privately owned. The beds of non-navigable streams belong to the owner of the adjacent land. If the stream is a
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dividing line between two parcels of land, each owner's boundary shall extend to the thread or the center of the main current of the water. If the current changes gradually, the boundary line follows the current. If from any cause the stream takes a new channel, the original line, if identifiable, remains the boundary. Gradual accretions of land on either side accrue to the owner of that side.36
An owner of non-navigable water has exclusive possession of the water, as though it were part of their land. This effectively prohibits the public from passing or boating down a nonnavigable river where it flows through the owner's land.37, 38 Dams and canals may be constructed and maintained by those who own or control lands on both sides of a non-navigable water.39 Dams and canals may be constructed and maintained by those who own or control lands on both sides of a non-navigable water.40
Tidewaters
As previously stated, following the American Revolution, Georgia adopted the English common law ebb and flow tidal test, holding tidal waters in public trust. In 1863, public rights were expanded to include non-tidal, navigable streams by eliminating private ownership of the streambed unless a grant pre-dating the adoption of the code could be presented. In 1902, the Georgia Supreme Court held that the 1863 expansion of public rights to non-tidal, navigable streams was not meant to change the common law boundaries of landowners abutting the sea or any of its inlets.41
Johnson v. State involved an indictment for taking oysters from a private oyster bed in King's Bay, considered an arm of the sea where the tide ebbs and flows; the oysters were removed between the high and low water marks, called the foreshore. Explaining the English common law and its application in the United States: "[in] the absence of any special title by
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grant or prescription, the boundary of landowners abutting on the sea, or upon any estuary, tidal stream, or arm of the sea where there was a regular rise and fall of the tide, extended only to high-water mark. The soil between the high-water mark and low-water mark was the property of the crown. This rule, so far as the boundary of the abutting landowner is concerned, has been almost universally followed in the United States."42 The court, therefore, held Johnson could not be convicted because the oyster beds were located in the foreshore of a tidewaterpublic land held in trust by the state.
Before 1890, Georgia had been one the largest oyster producing states in the Union; however, by 1902 when Johnson was decided, the state's oyster production had been rapidly declining.43 Johnson led to uncertainty that investments in planting oysters would pay off because the property rights decision in Johnson meant the oysters were in the public domain and someone else could harvest the oysters.44
Following the Johnson decision, the Boundaries of Lands on Tidewaters Act was passed in 1902 to "fix and prescribe the boundaries of land adjacent to or covered by or bordering on the tide-waters of this State, and to prescribe all rights of the owners of such adjacent lands within such boundaries, and to define navigable tide-waters, and for other purposes."45
The 1902 Act, codified in Official Code of Georgia, sections 44-8-6 through 44-8-8, established a distinction between non-navigable and navigable tidal waters which remains today, and led to confusion over ownership of beds in tidewaters. Navigable tidewater was defined as "any tidewater, the sea or any inlet thereof, or any other bed of water where the tide regularly ebbs and flows which is in fact used for the purposes of navigation or is capable of transporting at mean low tide boats loaded with freight in the regular course of trade."46 And, like the
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navigable-in-fact definition for non-tidal waters, "the mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable."47
Confusion arose over the use of the terms right, title, and boundary within the 1902 Act. Adjacent landowners' rights to navigable tidewaters extends only to the low-water mark in the bed of the water.48 However, title to non-navigable tidal beds vested in the adjacent landowner.49 Furthermore, should two properties be divided by a non-navigable tidewater the owner's boundary extends to the "main thread or channel of the water."50 Note, Georgia "preserves public rights of navigation in all tidewaters."51,52 Furthermore, the constitutionality of the 1902 Act was called into question as an unconstitutional granting of property of the state, as confusion arose over who owned the foreshore.
Some of this confusion was resolved in 1976 by the Georgia Supreme Court in State v. Ashmore, which affirmed the constitutionality of the 1902 Act and the state's ownership of all navigable tidewaters to the high water mark, holding "the State has fee simple title to the foreshore in all navigable tidewaters."53 The right to the low-water mark did not convey title, it was "nothing but the right to plant, cultivate, and harvest oysters and clams."54 Ashmore traces Georgia's history with respect to state ownership of tidal lands, including an explanation of the intent of the 1902 Act following the Johnson decision and the 1945 Constitutional ratification of the Act after its constitutionality was called into question. "It is agreed by most scholars that the 1902 Act was adopted to meet the Johnson decision and give some rights to `oystermen' so that their beds would be protected."55 Importantly, Ashmore concerned a navigable tidewater, thus, the issue of what was meant by title to the beds of non-navigable tidewaters was not addressed in this decision.
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However, state of Georgia ownership of the beds of all tidewaters is well established.56, 57 Additionally, in 1981, Georgia passed the Protection of Tidewaters Act, codifying the state of Georgia as the owner of the beds of all tidewaters - navigable or non-navigable - with very limited exception. This law states:
[T]he General Assembly finds and declares that the State of Georgia became the owner of the beds of all tidewaters within the jurisdiction of the State of Georgia as successor to the Crown of England and by the common law. The State of Georgia continues to hold title to the beds of all tidewaters within the state, except where title in a private party can be traced to a valid Crown or state grant which explicitly conveyed the beds of such tidewaters.58 Within this Act, "tidewaters" is defined as tidal waters "capable of use for fishing, passage, navigation, commerce, or transportation."59 It is important to note this definition includes tidal waters that are navigable, but also waters used for non-navigable purposes. Affirming state ownership of all tidelands, in the 1988 court case Phillips Petroleum v. Mississippi, the U.S. Supreme Court rejected navigability as a factor in determining the State's trust in tidelands.60 This case involved 42 acres of tidally influenced land in Mississippi in which the state issued oil and gas leases for the property under the theory that it held those lands in public trust. Phillips Petroleum affirms what has been the longstanding understanding of the public trust doctrine since Shively v. Bowlby tidelands are owned by the sovereign for the benefit of the public. An Amici Curiae brief by the 13 original states, expressing interest in the potential impact of this case on all coastal states public trust lands and waters, sought to answer how each of the original 13 states held its tidelands and navigable waters in public trust. Georgia, citing Johnson, stated "Lands subject to the ebb and flow of the tide, even if not navigable-infact, remained publicly-owned tidelands," noting that rare exceptions for State or Crown grants of lands may exist.61
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Furthermore, in 2006, Georgia's Supreme Court held that navigability is not a factor in determining ownership of tidewaters.62 In Black v. Floyd, the court found title belonged to the state of Georgia pursuant to the Protection of Tidewaters Act, Official Code of Georgia, section 52-1-2 that the state holds title to all tidewaters within the state, and the English common law principle that the crown owned the beds of tidewaters to the high water mark. Here, H. Russel Black claimed title to the property along Sterling Creek, a tidal waterway and arm of the sea, based on two 1761 Crown grants.63 R. Douglas Floyd, owner of property adjacent to the marshland, maintained the title belonged to the state of Georgia.64 Although the Act provides an exception to state ownership where the title can be traced to valid crown or state grant, such a conveyance must be explicit. Black did produce two crown grants; however, these grants were illegible and lacking any explicit conveyance of title to the beds of Sterling Creek. The court noted that such grants are construed strictly, and "it will not be presumed that the sovereign intended to part from any portion of the public domain, unless clear and especial words are used to denote it."65
Applying Georgia Law in Right-of-Way Practice
For the purposes of identifying State ownership of submerged lands under the public trust doctrine, waters in Georgia can be categorized as navigable streams, non-navigable streams and tidewaters. The following table summarizes state ownership within each category and provides guidance on identifying such waters. It is important to note that a list of state navigable waters does not exist, and creating such a list is both a scientific and factual exercise that requires current as well as historical understandings of use. Such an exercise is beyond the scope of this project and expertise of the research team. However, this table can provide guidance in
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identifying when projects cross state navigable waters, necessitating an RLA or non-exclusive easement from the SPC for construction, maintenance and use of state-owned lands. Table 2: Summary of State Ownership of Submerged Lands under Public Trust Doctrine

Summary of Georgia Law

How to Identify

Navigable Streams O.C.G.A 44-8-5

Rights of the owner of the lands which are adjacent to navigable streams extend to the low-water mark in the bed of the stream. Therefore, the State holds the submerged lands up to the low water mark in public trust.

Exception: Adjacent landowners with a grant of title from the State before 1863 (when codified), and the lands are not adjacent to tidewaters. Under these circumstances, then the adjacent landowner has title to the middle of the navigable water.

A list of state navigable waters does not exist. However, guidance exists including: the U.S. Army Corps of Engineers list of Navigable Waters of the U.S.; judicial decisions; Pindar's list in Georgia Real Estate Law and Procedure (See Table 1 for a list of some navigability determinations).

NonNavigable Streams O.C.G.A 44-8-2

Beds of non-navigable streams belong to the owner of the adjacent land. If the stream is the dividing line between 2 parcels of land, each owner's boundary shall extend to the thread or the center of the main current of the water. If the current changes gradually, the boundary line follows the current. If from any cause the stream takes a new channel, the original line, if identifiable, remains the boundary. Gradual accretions of land on either side accrue to the owner of that side.

Waters not meeting the Georgia definition of navigability/identified through above guidance on identifying navigable waters.

Tidewaters O.C.G.A. 52-1-2

The State is the presumed owner of all lands covered by tidewaters, unless there is a validated State or Crown grant. The distinction between navigable and nonnavigable tidewaters has no bearing on State ownership of submerged lands.

A jurisdictional determination by the Department of Natural Resources Coastal Resources Division. All tidewaters in Georgia are located within 11 coastal counties - all of which are located in GDOT Field District 5: Effingham, Chatham, Bryan, Liberty, Long, McIntosh, Wayne, Glynn, Brantley, Camden, and Charlton.

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CHAPTER 3. OPPORTUNITIES FOR IMPROVED COORDINATION IN GDOT'S CURRENT RIGHT-OF-WAY ACQUISITION PROCESS
GDOT's Plan Development Process "outlines the current process of project development from project identification through construction award and final acceptance."66 The Plan Development Process flow for major projects can be summarized as: Planning/Concept Development; Preliminary Design, including the environmental process, development of rightof-way plans, and utility and railroad coordination; Final Design, including environmental permits, right-of-way approval, plan revisions, and acquisition; and Construction.67
Right-of-Way Acquisition for State Owned Properties Section 8.8 of the External Right of Way Manual details the process for right-of-way
acquisition from state agencies. Once an acquisition from a State or Federal Government Agency is identified, the District Right-of-Way Team Manager must notify the State Local Government Right-of-Way Coordinator.68 A request for Transfer of Custody by a RLA and Resolution must then be sent to the state agency and SPC.69 Once the RLA is executed, the final transfer of custody is made by the SPC.70 Legislative action is, or is not, required prior to conveyance depending on whether House Bill 495 is applicable (i.e. the parcel is a Heritage Preserved Parcel).71 A final transfer of custody is then made through SPC.72 GDOT will retain the recorded easement and its recording information.73
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Federal and State Parcel Identification and Right-of-Way Acquisition: Interviews with DOT Team Members and Special Assistant Attorney Generals
A key consideration in assessing possible improvements for acquiring rights in state navigable waters and federal parcels is the timing of the Office of Right of Way's Local Government Manager and Special Parcels Coordinator's involvement in the project development process.xii Interviews with GDOT staff and Special Assistant Attorney Generals (SAAGs), retained by the State of Georgia Department of Law, provided a detailed account of how rightof-way acquisition fits into the overall Plan Development Process. In these interviews, GDOT team members and SAAGs explained how their roles advanced right-of-way acquisition.
Table 3, below, provides a narrative account of the project development process, spotlighting right-of-way acquisition generally, but in a manner that places particular emphasis on the timing for identification of state and federal parcels. Thus, the narrative chart is not intended to provide a complete or chronologically precise picture of the project development process or right-of-way acquisition. Departmental manuals furnish the definitive written process.74
Interviews conducted throughout the six-month study period covered a range of project development tasks and milestones from environmental review, to land title search, and parcel acquisition. We learned from GDOT team members that the process for acquiring rights in state and federal parcels begins after environmental review is complete, public notice and comment has concluded, and an initial determination of the project's route has been made. The following
xii The Local Government Manager and Special Parcels Coordinator are chiefly responsible for acquiring necessary rights in state and federally owned land parcels. GDOT team members sometimes refer to them as state and federal parcels coordinators.
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narrative of the state and federal parcel identification process demonstrates that the Local Government Manager and Special Parcels Coordinator enter the right-of-way acquisition process at a relatively early stage, but also suggests that there may be opportunities to provide even more advance notice of potential federal parcel or state navigable water involvement. Table 3: Anecdotal Overview of State Navigable and Federal Parcel Identification Process

Activity / Milestone
Environmental review

Significance
Environmental review, including the National Environmental Policy Act (NEPA) review, is required before GDOT makes any choice-limiting actions concerning a proposed project.xiii
The environmental review generally flags a wide range of potential concerns, ranging from impacts on agricultural lands and airports to endangered species and wetlands. The environmental review is generally completed by outside consultants.

Public Notice and Public Meetings

After the environmental review is complete, GDOT provides public notice
regarding the proposed road project, hosts public meetings in each county impacted by the project, and seeks public comments.xiv

At this stage, the project's proposed right-of-way is detailed.

Roadway Routing Determination for Right-ofWay Acquisition

Upon completion of the public engagement process and determination of the
project's proposed right-of-way, the process begins for right-of-way acquisition for privately-owned and publicly-owned parcels.xv

xiii Interviews with Special Assistant Attorney Generals (Apr. 20, 2020; May 11, 2020; and May 13, 2020).
xiv As noted in the text preceding this table, we are mindful that the processes described to us during our interviews with Department of Law and GDOT team members may not always be fully in alignment with the GDOT documents describing the stages of the environmental review and design processes. We know, for example, that public meetings may be convened before the environmental review process is complete. See, e.g., Design & Environmental PDP Overview Flow Chart (Dec. 2017), http://www.dot.ga.gov/PartnerSmart/DesignManuals/PDP%20Announcements/A3M%20Process%20Letter.pdf; http://www.dot.ga.gov/PartnerSmart/DesignManuals/Environmental/GDOT-EPM-Chap04.pdf.
xv Phone Interview with Special Assistant Attorney General (Apr. 20, 2020).
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Right-of-Way Acquisition: Land Title Research
Land Acquisition

The right-of-way acquisition process generally begins with using the roadway's proposed route to examine county property tax maps and initially identify property owners who may own land within the project's proposed right-of-way.xvi
Information on privately-owned parcels is used to begin land title research in advance of contacting private landowners.xvii This research is frequently handled by SAAGs and is necessary to provide initial notification to landowners that GDOT wishes to acquire their land for the proposed project.xviii The research also enables GDOT to have a title certificate in hand before negotiating purchase of property from private land owners.xix
Information on publicly-owned parcels, which includes both federal or state parcels, is shared with the Local Government Manager and Special Parcels Coordinator.xx Project information is prepared to share with federal and state agencies, including a copy of the project plans for review. Contact is initiated with federal and state agencies.
After land title research is complete, the information is given to negotiators who try to acquire the privately-owned land.xxi
The Local Government Manager and Special Parcels Coordinator continue to interface with state and federal agencies to obtain easements or other documents memorializing GDOT's newly acquired rights in the state or federal parcels.

It is important to note that Table 3 does not explicitly cover design-build projects. In design-build projects, right-of-way is generally acquired upfront, before the project is bid.xxii
xvi Interview with Special Assistant Attorney General (May 11, 2020); Interview with GDOT Staff (Feb. 28, 2020 and May 21, 2020).
xvii Interview with Special Assistant Attorney General (May 13, 2020). xviii Interview with Special Assistant Attorney General (May 11, 2020). xix Interview with Special Assistant Attorney General (May 13, 2020). xx Interview with GDOT Staff (Feb. 28, 2020 and May 21, 2020. Typically, GDOT Office of Right-ofWay will learn that a federal or state parcel is part of a road project when she receives a call from a member of the project team saying: "hey, we have a federal or state parcel what do we need to do?" xxi Interview with Special Assistant Attorney General (May 11, 2020). xxii Interview with GDOT engineers (May 27, 2020).
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Although GDOT team members explained that design-build projects are "completely different," these projects present the same needs for early identification of state and federal parcels.
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CHAPTER 4. BEST PRACTICES OF PEER STATE DEPARTMENTS OF TRANSPORTATION IDENTIFIED THROUGH SURVEY AND INTERVIEWS

Over the course of the research investigation, our team surveyed and interviewed over 30 representatives from 15 different federal, state, and local organizations. The majority of states surveyed do not maintain lists of navigable waterways, and their representatives were interested in reviewing this report. The states that did maintain lists typically had a state environmental permitting process that necessitated the practice. We also queried peer departments of transportation regarding their process for obtaining right-of-way to discover best practices where they existed, and finally asked whether the states tracked time-limited intergovernmental rightof-way agreements. Responses are organized by state and paraphrased below in Table 4.xxiii Table 4: Survey and Interview Responses

Alaska

Alaska has one of the most comprehensive approaches to right-of-way acquisition and documentation. The state maintains a list of state navigable waters, and the state right-of-way chief oversees all acquisitions through regional right-of-way managers. Acquisitions are accomplished using a combination of statutory authority and historical transfers from the federal government at statehood (or subsequent to statehood). The agency also coordinates with and acquires right-of-way from the Department of Natural Resources, using the AS 38.05.850 easement request process. Submerged lands that are owned/managed by the federal government are acquired via applicable federal right-of-way authority, generally a 23 CFR highway easement deed. In some areas, right-ofway is acquired from both state and federal managers when working adjacent to federally-owned uplands, as disagreement continues to exist about the ownership of navigable-for-title submerged lands within federal conservation units. While the state does not maintain a database of time-limited intergovernmental

xxiii Representatives from two additional states, Vermont and Texas, responded to the survey but did not complete it.

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agreements and their expiration dates, right-of-way status is reviewed prior to any new construction projects. Federal and state right-of-way grants may be either indefinite or termed. The state notes that an unknown number of termed right-of-way grants from both levels of government are likely incorporated into the current highway system.

Colorado

While Colorado does not maintain an official list of navigable waters nor track time-limited intergovernmental agreements, there are two major federal navigable waterways and the process for obtaining federal right-of-way is welldefined and documented.75 CDOT maintains MOUs with the federal agencies it works with most frequently, and liaises with federal representatives at the earliest stages in the process, even as initial data and mapping is being assembled. CDOT's process requires obtaining Highway Easement Deeds (HEDs) for both new sections as well as any adjacent segments of the existing highway that lack HEDs in an effort to cover all existing parcels. CDOT tracks permanent easement records, however; temporary agreements are stored but not catalogued.

Delaware DelDOT staff reported having neither a list of navigable waters nor time-limited intergovernmental agreements. No other information was provided.

Florida

In Florida, the Trustees of Internal Improvement Trust Fund hold title to state lands (TIIF lands). The State Department of Environmental Protection (DEP) manages these lands on behalf of the state. There are, however, a few other state agencies that can hold properties: the FDOT, the State Department of Environmental Protection (DEP), regional water management districts (e.g., the St. John's River Water Management District), and the state forestry service. All other state agencies hold property in a pool controlled by the Trustees. The process FDOT now follows to secure the rights in the water bodies it crosses was streamlined 20 years ago to coincide with the environmental permitting process, such that state navigable waters (and submerged lands) are flagged during the application process for regional environmental permits. This triggers the application to the state who, standing in the shoes of the state land commission, issues time-limited permissions to DOT use of submerged lands that are tracked.

Illinois

The state of Illinois maintains a list of state navigable waterways, according to the three IDOT staff members, who responded to our survey. However, right-ofway acquisition for waterways is rare, and the state manual for land acquisition does not address specific departmental processes for coordinating with federal or state agencies.76 Time-limited intergovernmental agreements are not tracked.

Maryland

The Maryland Department of Natural Resources (DNR) manages state navigable waters. DNR reviews and comments on all MDOT plans. In addition, MDOT flags a project's likely impact on state navigable waters and/or federal parcels at an early conceptual stage when project engineers give MDOT's real estate team an aerial photo and a general description of the project's potential path (including a 100-foot right-of-way) to assess parcel-level acquisition

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requirements; this process is also used to make a judgment about project feasibility. MDOT does not maintain a list of navigable waterways and the process has been on a case-by-case basis. An interdisciplinary project team composed of a right-of-way staffer, an environmental designer, a NEPA specialist, and a project planning group member addresses waterway questions when the real estate department flags them during their project review. No statelevel comprehensive manual for this process exists. MDOT is aware of only one time-limited expired easement but suspects there may be more; MDOT is researching these agreements and building a database to track and flag them for renewals.

Montana

The Montana Department of Natural Resources and Conservation (DNRC) has jurisdiction over portions of rivers within the state that it has determined navigable and the State maintains a list. The Montana DNRC also issues timelimited land use licenses for roadway projects that cross these streams. The time period is typically two-years and informally tracked via a calendar manager entry.

North Carolina

NCDOT focuses on whether a project impacts federal navigable waters; to the extent the proposed project crosses state lands, NCDOT must obtain a governor's cabinet level sign-off to cross state lands. This right is granted to NCDOT in perpetuity. NCDOT is not aware of a list of state navigable waterways and staff do not typically encounter right-of-way concerning them. NCDOT is actively pursuing process change to project management to simplify management and reduce knowledge silos. It is unclear if time-limited intergovernmental agreements are currently tracked.

Ohio

ODOT staff reported having a list of state navigable waterways. Time-limited intergovernmental agreements are not tracked. No other information was provided.

South Carolina

State navigable waters are identified early in the project planning process through GIS mapping (updated annually) and also flagged during the application process for state environmental permits; SCDOT must obtain an environmental permit to cross state navigable waters.

Tennessee

Unlike other states, TDOT's Environmental Division, not the right-of-way division, manages easement and fee interest acquisitions from federal agencies. It also leads the NEPA review process. TDOT typically receives fee simple interests from federal agencies versus perpetual easements, and rivers are stateowned, so staff are not familiar with any time-limited intergovernmental agreements that might apply.

Virginia

Virginia does not maintain a list of state navigable waterways. The Virginia Marine Resources Commission (VMRC) manages permitting for waterways. The state cannot give commonwealth property away but charges royalties for usage that are waived for VDOT. The permitting process is generally expedited due to

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a state-agency understanding, unless there is something that would trigger deeper permitting requirements (e.g. public notice if impacting a public resource like oyster beds). VDOT is free to maintain structures once constructed; VDOT has never encountered an issue with VMRC regarding a time-limited agreement.
Time-Limited Intergovernmental Right-of-Way Agreements
An easement is an agreement that allows a person to use land possessed or owned by
another.77 The easement agreement conveys a so-called non-possessory interest in the owner's
land while the owner retains the right to possess the land covered by the easement. Easement
agreements authorizing right-of-way construction, operation, and maintenance do not usually
include explicit time limitations.xxiv They are sometimes perpetual in duration but may also be
time-limited. For instance, the Federal Land Policy and Management Act authorizes grants of
temporary or permanent easements for road rights-of-way over national forest lands, but the
statute does not impose explicit duration limits for the temporary easements and allows
renewals.78 RLAs issued by Georgia's SPC are another example of time-limited right-of-way
agreementshere in the form of a revocable license as opposed to an easementand, strictly
limited to a maximum of three years, without the option to extend.xxv
xxiv Various federal agencies approve long-term right-of-way over federal lands, navigable waters, or waters of the U.S. For example, U.S. Coast Guard issues permits for bridges over waters considered navigable under Section 9 of the Rivers and Harbors Act; USACE grants permits for bridges crossing waters of the U.S. under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899; U.S. Department of the Interior approves long-term right-of-way crossing through National Wildlife Refuges under Section 4 of the National Wildlife Refuge Administration Act.
xxv Official Code of Georgia, sec. 50-16-42; see also phone interview with Kelie Moore, CRD, and Clark Wong, SPC (April 13, 2020). Easement agreements and license agreements are similar insofar as they grant the holder of the easement or license the right to use land. But licenses generally give their holders a narrower set of rights in land than would an easement: the rights granted are personal to the license holder, the license can be revoked, and the license cannot be assigned to another person. Easements, on the other hand, grant holders much broader rights. The easement actually conveys an interest in real property to the holder. The license gives the holder a mere personal permission to use land. See Pindar's Georgia Real Estate Law and Procedure with Forms, 8:7. The easement can be transferred and, generally speaking, it cannot be revoked by one party. See Pindar's, 8:7.
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State of Georgia Basis for Temporal Limitations in Granting Interests in Property
Easements represent a type of contract or agreement between two or more parties.79 The Constitution of the State of Georgia in Article 9, Section 3, paragraph 1 authorizes intergovernmental contracts:
The state, or any institution, department, or other agency thereof, and any county, municipality, school district, or other political subdivision of the state may contract for any period not exceeding 50 years with each other or with any other public agency, public corporation, or public authority for joint services, for the provision of services, or for the joint or separate use of facilities or equipment; but such contracts must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide.80 Georgia courts have interpreted that the Constitution establishes four requirements necessary for a valid intergovernmental contract.81 First, the contract must pertain to "the provision of services, or for the joint or separate use of facilities or equipment."82, 83 Second, the contract "must deal with `activities, services, or facilities which the contracting parties are authorized by law to undertake or provide.'"84, 85 Third, this clause has reference only to corporations and authorities created by the state of Georgia and does not include any public authorities created by another state or country;86, 87 all parties to an intergovernmental agreement must be Georgia governmental entities.88 Fourth, the intergovernmental contracts clause allows for a maximum period of 50 years.89, 90 In other words, state departments and agencies can contract with each other with reference to facilities and services, with limitations that such contracts may not exceed 50 years duration, and that contracts deal only with such activities and transactions as the agencies are authorized by law to undertake.91, 92, 93 Accordingly, a private lease for 50 years,
33

which contains an option to extend, violates Paragraph I(a) according to the Georgia case precedent.xxvi
If long-term easement agreements between USACE and GDOT meet the four requirements of an intergovernmental contract under the Georgia Constitution, then, based on temporal extensions to such contracts may violate the Georgia Constitution.94 Instead of extensions to existing agreements, which presumably could be invoked at the option of one party to the agreement, a new easement agreement would have to be signed by the property owner and the party holding the easement. Questions remain, however, whether the intergovernmental contract clause applies to the long-term easement agreements between USACE and GDOT.
First, while the plain text of the intergovernmental contract clause does not explicitly limit the contracting parties to strictly Georgia governmental entities, Georgia courts have interpreted the clause to refer to only Georgia governmental entities. As a branch of the United States Army, USACE is a federal agency and not a corporation or authority created by the state of Georgia. More clarification would be needed to confirm whether USACE is a "public agency" that falls within the Georgia Constitution's purview.
Second, the intergovernmental contracts clause applies to contracts for "the provision of services, or. . . the joint or separate use of facilities or equipment."95 Long-term easement agreements between USACE and GDOT are easements for rights-of-way over lands under USACE control to GDOT. Such grants may not be equivalent to "the provision of services" or "use of facilities" as the Georgia Constitution requires. If the long-term easement agreements are
xxvi Nations v. Downtown Dev. Auth., 255 Ga. 324, 338 S.E.2d 240 (1985) (a lease which allowed for an initial period of 50 years plus an option to extend the duration of the lease for an additional 25 years was the equivalent of a 75 year contract and therefore exceeded the authority given in Ga. Const. art. IX, sec. III, para. I (1983)).
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neither between Georgia governmental entities nor contracts "for the provision of services" or for "use of facilities" then such agreements may not qualify as intergovernmental contracts as defined under the Georgia Constitution. As a result, the temporal 50-year limitation may be negotiable, provided that the USACE would be willing to grant GDOT an interest in its land extending more than 50 years. As discussed in the following section, the 50-year limitation may still have a federal basis.
Federal Basis for Temporal Limitations in Granting Interests in Property
The United States Constitution Art. IV, Sec. 3, Clause 2 gives Congress the power "to dispose of and make all needful rules and regulations respecting the territory or other property of the US."96 Consequently, Congress has enacted "specific legislation giving the Secretary of the Army authority to grant the use of real property under his administrative control" under numerous statutes, including 10 U.S.C. 2668 (easements for various rights-of-way); 10 U.S.C. 4777 (easements for ferry landings, bridges, and livestock crossings); 16 U.S.C. 460d (leases or licenses at water resource development project); and 40 U.S.C. 319 (easements for other purposes).97 Accordingly, the Army has developed regulations governing "outgrants"- "the written document[s] setting out the terms and conditions of non-Army use of real property."98
USACE's authority to enter into easements for various rights-of-way, including for roads, streets, railroad tracks, and such, stems from 10 U.S.C. 2668. The statute permits USACE to outgrant easements for 13 listed purposes, including roads, streets, and railroad tracks:
If the Secretary of a military department finds that it will not be against the public interest, the Secretary may grant, upon such terms as the Secretary considers advisable, easements for rights-of-way over, in, and upon public lands permanently withdrawn or reserved for the use of that department, and other lands under the Secretary's control for (...) (9) roads and streets (...)99 The Secretary of the military department concerned may terminate all or part of any easement granted under this
35

section for-- (1) failure to comply with the terms of the grant; (2) nonuse for a twoyear period; or (3) abandonment.100 The statute does not specifically limit the term. Indeed, USACE sometimes grants rights-of-way for public roads, streets, and main line railroad tracks in perpetuity. However, USACE's policies impose temporal limits on some easements and instruct to treat some easement renewals or extensions as new easements. Such temporal limitations may be listed in USACE's Real Estate Handbook ER 405-1-12 a restricted document that is not readily available on USACE's public inventory. Rules around other types of outgrants allow for some discretion as to the length of the agreement. For instance, the Secretary of the Army may grant leases for the construction and operation of public parks and recreational facilities in water resource development projects on federal lands "for such periods. . . as he may deem reasonable in the public interest. . . ."101 Furthermore, Section 17-2 of USACE Non-Recreation Outgrant Policy notes, "[p]roposals to modify or renew existing outgrants will also be evaluated for policy compliance under this guidance."102 This suggests renewals of expiring easement agreements may be permissible under certain circumstances, if the renewal or modification complies with existing law and policies. Regarding the development of a comprehensive long-term easement agreement filing system, copies of instruments granting easements over public lands under 10 U.S.C. 2668(d) the statute that gives USACE authority to enter into easements for various rights-of-ways have to be provided to the Secretary of the Interior."103 Thus, when creating a comprehensive database/filing system of long-term easement agreements between USACE and GDOT, checking against the records of such instruments filed with the Secretary of the Interior may be helpful.
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CHAPTER 5. RECOMMENDATIONS
Results from this research study indicate that GDOT team members across departments do not share a common understanding of the distinction between a federal navigable water and a state navigable water. It is, for this reason, not surprising that team members also may not share an appreciation of how the distinction between federal and state navigable waters can impact right-of-way acquisition processes and consequently, program delivery. This distinction between federal and state navigable waters is highly nuanced and not well understood by other state departments of transportation, as discovered through results from the survey and interviews; however, it can have significant impacts on timely program delivery, particularly in Georgia where easements across state lands must be approved by the legislature.
The following recommendations will increase understanding across relevant GDOT departments and staff, improve timely identification of projects crossing state navigable waters, and trigger the involvement of the Local Government Manager and Special Parcels Coordinator earlier in the process to prevent project delays.
1. Hold a training webinar to educate necessary GDOT staff about the distinction between a federal navigable water and water navigable under Georgia law, why this distinction matters, and its importance to right-of-way acquisition and timely project delivery. State and federal navigable water definitions are nuanced. Key GDOT staff could benefit from having uniform education, leading to a shared understanding of the importance in early identification of state navigable waters and early involvement of the Local Government Manager and Special Parcels Coordinator.
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Over the duration of this research project, interviews were conducted with GDOT
staff in a variety of roles that could aid in early identification of projects crossing state
navigable waters; however, it was evident that there was confusion around how a water
navigable under Georgia law differs from a navigable water under federal law, and why
this distinction matters in the right-of-way land acquisition process. It is recommended
that at a minimum, the following roles participate in this training webinar:
District Engineers, particularly District 5 which includes all tidal and tidallyinfluenced waters in the state.
District Pre-Construction Engineers, particularly District 5.
District-level Acquisition Manager and District-level Right-of-Way Acquisition Teams, particularly in District 5.
State-wide Right-of-Way staff, including the Local Government Manager and Special Parcels Coordinator.
Designers/District Designers that develop the Right-of-Way plans and serve as a starting point for the work conducted by the State and Federal Parcels Coordinators.
Office of Environmental Services (OES), particularly: the NEPA Analyst in charge of early coordination efforts; the Environmental Phase Leader, who is also part of the early coordination efforts for projects potentially impacting wetlands, streams and open waters; and the Ecologist, who gathers and analyzes all data within the study area including reviewing topographic maps, the National Wetland Inventory Maps, etc.
Design Phase Leaders, who develop the environmental survey boundary during concept development, work closely with the Office of Environmental Services through the environmental studies phase, and are responsible for the Preliminary Field Plan Review Checklist.
Project Review Engineer, who has the authority to grant exceptions to the Preliminary Field Plan Review Checklist.
Project Managers, who guide projects through the Plan Development Process.
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Note, District 5 contains all tidal and tidally-influenced waters within the state. Therefore, it is of particular importance that District 5 staff receive the suggested training. Furthermore, regular communication among these roles is suggested; this could take the form of a monthly "check-in" meeting.xxvii
Although the law and legal interpretation is subject to change, this webinar will have a shelf-life, and should therefore, be recorded for future training as staff are identified that could benefit from this understanding or roles and responsibilities of staff evolve.
2. Assess and amend project checklists and/or early stage conceptual team meeting agendas to include consideration of state navigable waters. GDOT has a strong culture that embraces checklists as a tool to help team members avoid errors that so often prove footfalls for even the most experienced staff. The checklists used early in the project design process do not currently include references to impacts on state navigable waters. Adding an item to the checklists that asks whether the proposed project crosses submerged or tidally influenced lands that may qualify as navigable waters under Georgia law would help streamline the process by earlier identifying, and thus allowing earlier action in response to, additional steps necessitated by crossing state navigable waters.xxviii The following actions are recommended: Amend the following sections in the Concept Report Template:104 Utility and Property, Right-of-Way on Page A-10: This section specifically flags impacts to U.S. Army Corps of Engineers Property and the possibility
xxvii Interview with GDOT district engineers (May 27, 2020). xxviiiAt least one other jurisdiction raises questions about title to submerged lands when that department's real estate office is asked to provide cost estimates for the potential routes that a proposed project may follow. Interview with MDOT Director, Office of Real Estate (August 5, 2020). Coordinating state agencies have noted a disconnect between the Office of Environmental Services and Office of Right of Way, although efforts have been made to improve this by encouraging early notification. Interview with GDOT staff (April 9, 2020).
39

that a Real Estate Outgrant may be required. An item should be added before this question to flag more generally whether a federal or state parcel is impacted, specifically highlighting whether lands beneath a state navigable water, including tidewaters, are impacted. Environmental and Permits on Page A-11: This section includes a checklist for all anticipated permits, variances, commitments, and coordination needed. After training the relevant GDOT staff about state navigable waters and the impact on right-of-way land acquisition, Item #13 "Other Coordination" could be used to flag the need for coordination with the Local Government Manager and Special Parcels Coordinator if a state navigable water is within the project footprint. Amend the Plan Presentation Guide105 that outlines the presentation of right-of-way and easements and serves as the starting point for right-of-way acquisition work carried out by the Local Government Manager and Special Parcels Coordinator. 60.003 Miscellaneous Right of Way Plan Information, Improvements and Culture on Page 3-7: This section identifies various things that may affect the cost of right-of-way on the plans; for example, streams and springs are listed. Consider adding "State Navigable Waters" and "Tidelands" to this list. Utilize the Preliminary Field Plan Review106 to confirm early coordination with the Local Government Manager and Special Parcels Coordinator for all projects impacting federal and state land, including tidelands. The Preliminary Field Plan Review includes a checklist for preliminary right-of-way and easements. After training the relevant GDOT staff about the process for acquiring easements for
40

federal and state parcels, particularly for parcels crossing state navigable waters, this item on the checklist could reinforce early coordination with the Local Government Manager and Special Parcels Coordinator. A take-away from several GDOT interviews was that this checklist is not always utilized to notify them early in the process. Reference to promoting early coordination efforts has been made internally and by coordinating state agencies. In particular, early coordination between the Office of Environmental Services and Right-of-Way is recommended.xxix Consider participation by the Local Government Manager and Special Parcels Coordinator in early coordination meetings initiated by the NEPA Analyst. The Tennessee Department of Transportation (TDOT) reports early awareness of projects affecting federal parcels. TDOT's NEPA review checklist includes a check-box concerning a project's impacts on federal lands. Interestingly, TDOT also asks its Environmental Division, not its Right-of-Way Division, to manage the process of obtaining easements and fee interests in land from federal agencies, including the Tennessee Valley Authority (TVA), USACE, and the U.S. Forest Service (Department of Agriculture).xxx TDOT's rationale is that requests for rights in projects are occurring at the same time the Environmental Division is seeking environmental permits and permissions from federal agencies. TDOT Right-of-Way negotiates with private landowners.
xxix Interview with DNR and SPC staff (April 9, 2020). The issue was also flagged and discussed during a follow-up interview with a team member from both OES and ROW. Interview with GDOT staff (May 28, 2020).
xxx Interview with TDOT Director, Environmental Division (Aug. 3, 2020).
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3. Amend the External Right of Way Manual to reference state navigable waters.107 The External Right of Way Manual serves as a basic reference for GDOT's internal and external stakeholders to identify key concerns and considerations associated with acquiring right-of-way for projects. Currently, GDOT's manual omits discussion of issues related to navigable waters as well as submerged lands or tidally influenced lands. The following action is recommended:
Section 8.7(B)(3) Acquisition of Right-of-Way for Governmental Agencies: This section provides procedures for acquiring right-of-way in federal or state owned lands; however, significant opportunity exists within this section to improve the knowledge and understanding of what constitutes state owned land. Section 8.7(B)(3) defines State Lands as "those under the control, use and benefit of State Agencies." Amending this definition to add "The state of Georgia is the presumed owner of all submerged lands beneath waters navigable under Georgia law, which includes all tidal and tidally-influenced waters regardless of traditional understandings of navigability. Only a verified State or Crown Grant that explicitly conveys ownership of the bed rebuts this presumption. Projects crossing waters navigable under Georgia law or located in the 11 coastal counties containing all tidal and tidally-influenced waters should be evaluated for state owned parcels and identified at Preliminary Field Plan Review."
4. Document detailed procedures for state and federal parcel right-of-way acquisition. GDOT's External Right of Way Manual broadly outlines the procedures for acquiring right-of-way from state and federal agencies. However, interviews with the Local Government Manager and Special Parcels Coordinator revealed that detailed, step-by42

step documentation does not exist and institutional knowledge was lost with recent staff retirements.xxxi It is recommended that detailed procedures, including identifying key external stakeholders and their role (e.g. Coastal Resources Division, State Properties Commission), be documented to ensure institutional knowledge of procedures is maintained should staff turnover occur. This documentation could serve as a stand-alone guidance document. Creating this documentation provides another opportunity to flag state ownership of submerged lands below navigable waters and tidewaters. 5. Digitize long-term easement agreements and add to the GDOT's Project Management/Enterprise System Software. GDOT's process for recording and maintaining records of long-term easement agreements has not yet been digitized, which complicates searching for records and tracking expiring easements. Cataloging current projects and easements as well as documenting the process for cataloging future projects will ensure easier retrieval and maintenance of records going forward. Additionally, if possible, steps should be taken to catalog and digitize old easement agreements and outgrants.
At least one jurisdiction, Maryland DOT (MDOT), is currently creating a database in its enterprise system software to track long-term easement agreements. These long-term easement agreements are organized according to road project segments, therefore, if MDOT transfers maintenance or control of the road segment to a local government, MDOT can furnish all agreements and plans pertaining to that road segment. The first step MDOT is taking in creating this database is populating it with all easement agreements. Once this step is complete, the agency will resolve any identified
xxxi Interview with GDOT staff (Feb. 28, 2020).
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outstanding issues pertaining to renewal or expired/expiring agreements.xxxii Further discussions with the MDOT about this digitization project could be beneficial to GDOT. 6. Request that the Georgia Department of Natural Resources create and maintain a GIS overlay of tidally-influenced land and list of state navigable waters. Some states maintain lists and spatial data sets of waters navigable under state law. Creating and maintaining a list and GIS overlay of navigable waters under Georgia law would ensure that GDOT team members have the best tools to efficiently identify state-owned lands and promote early coordination within GDOT. Further, this documentation will enhance understanding by GDOT team members of the importance to the right-of-way land acquisition process. However, creation of such a list and GIS overlay is not a one-time exercise and would require regular maintenance. South Carolina, for example, maintains a list of state navigable waters as well as a GIS data layer where such waters are located.xxxiii The state updates this information annually.xxxiv
xxxii It is important to note that most peer DOTs find that federal agencies are unwilling to give perpetual easements or fee interests in land. See, e.g., Aug. 3, 2020 Interview with TDOT Director, Environmental Division, but note that TDOT Director of Right of Way, indicates that the TVA will give TDOT permanent easement agreements (Interview with TDOT Director of Right of Way (July 30, 2020); Interview with MDOT Director, Real Estate (August 5, 2020)).
xxxiii Interview with SCDOT Permitting Division staff (June 16, 2020). xxxivRising sea level changes may make GIS data layering even more valuable. As rises in sea level will affect more inland areas, having a system in place that can be updated and communicated department-wide will save GDOT (and other state agencies) time and resources at a later date.
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CONCLUSION
Roadway development projects are driven in significant respect by waters subject to federal regulation. Bays, lakes, rivers, creeks, and wetlands that meet the definition of "navigable waters" under the Rivers and Harbors Act and/or "waters of the U.S." under the Clean Water Act are protected by often complex permitting processes. It is easy to overlook the significance of waters navigable under state law. However, the state of Georgia, under the public trust doctrine, holds title to submerged lands beneath navigable waters, which includes all tidewaters regardless of navigability - a critical consideration in right-of-way land acquisition. Understanding which waters are considered navigable under Georgia law is not a straightforward endeavor, as a list has never been created; however, guidance does exist. Modest steps to bring a shared understanding of navigability under Georgia law, how to identify these state navigable waters, and how identification affects property ownership and the right-of-way acquisition process will promote early coordination within GDOT and aid in timely project delivery. The recommendations in this report focus on training key GDOT staff on the distinction between federal and state navigable waters and why it matters, and modifying existing checklists and manuals to flag this consideration early in the process.
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REFERENCES
1. General Definition, 33 C.F.R. 329.4 (2020).
2. U.S. Army Corps of Engineers, Section 10 Waters List, Savannah District, https://www.sas.usace.army.mil/Portals/61/docs/Regulatory/DIGITAL%20EAPPLICATION/20 190625%20Section%2010%20Waters%20List_Savannah%20District.pdf?ver=2019-06-26144338-893; see also Geographic and Jurisdictional Limits of Oceanic and Tidal Waters, 33 C.F.R. 329.12 (2020).
3. Congressional Declaration of Goals and Policy, U.S. Code 33 1251(a).
4. Slade, D., Kehoe, R. and Stahl, J., Putting the Public Trust Doctrine to Work: The Application of the Public Trust Doctrine to the Management of Lands, Waters and Living Resources of the Coastal States, 2nd ed. (Washington, D.C.: Coastal States Organization, 1997), 1.
5. Slade, D., Kehoe, R. and Stahl, J., Putting the Public Trust Doctrine to Work, 4, 13.
6. Slade, D., Kehoe, R. and Stahl, J., Putting the Public Trust Doctrine to Work, 13.
7. Slade, D., Kehoe, R. and Stahl, J., Putting the Public Trust Doctrine to Work, 13.
8. Slade, D., Kehoe, R. and Stahl, J., Putting the Public Trust Doctrine to Work, 3.
9. Shively v. Bowlby, 52 U.S. 1, 26 (1894).
10. Robin Kundis Craig, "A Comparative Guide to the Eastern Public Trust Doctrines: Classifications of States, Property Rights, and State Summaries," Penn State Environmental Law Review 16 (2007) 12.
11. Slade, D., Kehoe, R. and Stahl, J., Putting the Public Trust Doctrine to Work, 2.
12. Official Code of Georgia, sec. 50-16-42.
13. Crowder v. Dep't of State Parks, 228 Ga. 436, 439 (1971).
14. Rights of adjoining landowners in navigable streams, Official Code of Georgia, sec. 44-85(a) (2020).
15. Official Code of Georgia, sec. 44-8-5(b).
16. Parker v. Durham, 365 S.E. 2d 411, 412-13 (Ga. 1988).
17. James L. Bross, "Georgia Riparianism." In Waters and Water Rights (Matthew Bender & Company, Inc.), Part XI.
18. Daniel F. Hinkel, "Navigability of Particular Streams." In Pindar's Georgia Real Estate Law and Procedure: with Forms, 7th ed. (Thomson Reuters, 2020) section 6:8.
46

19. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8.
20. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8 (citing Georgia Canoeing Ass'n v. Henry, 482 S.E.2d 298 (Ga. 1997)).
21. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8 (citing Seaboard Air Line Ry. v. Sikes, 60 S.E. 868 (Ga. App. 1908)).
22. Fla. Gravel Co. v. Capital City Sand & Gravel Co., 154 S.E. 255, 255 (Ga. 1930).
23. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8.
24. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8.
25. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8.
26. Givens v. Ichauway, Inc., 493 S.E.2d 148, 150 (Ga. 1997). 27. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8.
28. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8 (citing Richardson v. State, 85 S.E. 1027 (Ga. 1915)).
29. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8.
30. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8.
31. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8.
32. Daniel F. Hinkel, "Tests of Navigability." In Pindar's Georgia Real Estate Law and Procedure: with Forms, 7th ed. (Thomson Reuters, 2020) section 6:7.
33. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8.
34. Daniel F. Hinkel, "Navigability of Particular Streams," section 6:8.
35. Parker v. Durham, 365 S.E. 2d 411, 412-13 (Ga. 1988).
36. Rights of owners of land adjacent to non-navigable streams, Official Code of Georgia, sec. 44-8-2 (2020). 37. Georgia Canoeing Ass'n v. Henry, 267 Ga. 814 (1997).
38. Givens v. Ichauway, Inc., 268 Ga. 710, 493 S.E.2d 148 (1997).
39. Possession non-navigable streams by owners, Official Code of Georgia, sec. 44-8-3 (2020).
40. Construction of dams and canals for development, Official Code of Georgia, sec. 44-8-4 (2020).
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41. Johnson v. State, 114 Ga. 790 (1902).
42. Johnson, 807-808.
43. State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334, 337 (1976) (discussing the 1943-1944 Constitutional Commission proceedings and statements made by Mr. Gowen).
44. Ashmore, 338.
45. Ashmore, 336.
46. Rights of owners of land adjacent to navigable tidewaters, Official Code of Georgia, sec. 448-7 (2020).
47. Official Code of Georgia, sec. 44-8-7 (2020).
48. Official Code of Georgia, sec. 44-8-7 (2020).
49. Tidewaters; Title; Boundary Line, Official Code of Georgia, sec. 44-8-6 (2020).
50. Official Code of Georgia, sec. 44-8-6 (2020).
51. Exclusive Appropriation of Tidewaters Not Authorized, Official Code of Georgia, sec. 44-88 (2020).
52. Robin Kundis Craig, "A Comparative Guide to the Eastern Public Trust Doctrines: Classifications of States, Property Rights, and State Summaries," Penn State Environmental Law Review 16 (2007) 39-44.
53. State v. Ashmore, 236 Ga. 401 (1976).
54. Ashmore, 341.
55. Ashmore, 339.
56. Georgia Opinion of the Attorney General, No. 36 (1985) (citing Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892); Johnson v. State, 114 Ga. 790 (1902)).
57. Smith and Sammons, "Public Rights in Georgia's Tidelands," Georgia Law Review 9 (1974), 79.
58. Official Code of Georgia, sec. 52-1-2 (2020).
59. Official Code of Georgia, sec. 52-1-3 (2020).
60. Phillips Petroleum v. Mississippi, 484 U.S. 469 (1988).
61. Petitioners, v. State of Mississippi et al., Respondents., 1987 WL 881387, 22 (Brief for 13 Original States as Amici Curiae Phillips Petroleum Co.).
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62. Black v. Floyd, 630 S.E.2d 382, 383 (2006) (State holds title to all tidewaters, as defined in Official Code of Georgia, sec. 52-1-2, except where valid Crown or state grant exists).
63. Black v. Floyd, 383.
64. Black v. Floyd, 383.
65. Black v. Floyd, 384.
66. GDOT, Plan Development Process (revised December 2019), 1-1.
67. GDOT, Plan Development Process, 3-5.
68. GDOT, External Right of Way Manual (revised May 2015), 8.8.1, http://www.dot.ga.gov/PartnerSmart/DesignManuals/ROW/00ExternalRightofWayManual.pdf.
69. GDOT, External Right of Way Manual, 8.8.2.
70. GDOT, External Right of Way Manual, 8.8.3.
71. GDOT, External Right of Way Manual, 8.8.4-5.
72. GDOT, External Right of Way Manual, 8.8.6.
73. GDOT, External Right of Way Manual, 8.8.7.
74. GDOT, External Right of Way Manual, (revised May 2015), http://www.dot.ga.gov/PartnerSmart/DesignManuals/ROW/00ExternalRightofWayManual.pdf.
75. CDOT, Right of Way Manual (March 2020), "State and Federal Lands Acquisition, Policies, Procedures, and Information, https://www.codot.gov/business/manuals/rightofway/Chapter%2011%20%20State%20and%20Federal%20Lands%20Acquisitions/Chapter%20 11%20State%20and%20Federal%20Lands.
76. IDOT's Office of Highways Project Implementation Bureau of Land Acquisition, Land Acquisition Policies and Procedures Manual (August 2018), http://idot.illinois.gov/Assets/uploads/files/Doing-Business/Manuals-Guides-&Handbooks/Highways/Land-Acq/Land%20Acquisition%20Manual.pdf.
77. Lisa A. Zakolski, "Easement" and "Continuing Easement" Defined, in Georgia Jurisprudence vol. 2, 21:1 (Thomson Reuters, 2020).
78. Grant, Issue, or Renewal of Rights-of-Way, U.S. Code 43 1761(b)(1).
79. Richardson v. Georgia Power Co., 308 Ga. App. 341, 343, 708 S.E.2d 10, 12 (2011).
80. Ga. Const. art. IX, sec. 3.
81. Savage v. State, 297 Ga. 627, 632 (2015). 49

82. Greene County Sch. Dist. v. Greene County, 278 Ga. 849, 851 (2005). 83. Savage v. State, 632. 84. Savage v. State, 632. 85. Greene County Sch. Dist. v. Greene County, 278 Ga. 849, 851 (2005). 86. State v. Blasingame, 212 Ga. 222 (1956). 87. Savage v. State, 632. 88. Chattanooga-Hamilton Cty. Hosp. Auth. v. Walker Cty., 702 Fed. Appx. 854, 85556 (11th Cir. 2017). 89. Savage v. State, 632. 90. Georgia Opinion of the Attorney General, No. U96-24 (Nov. 26, 1996). 91. Georgia Opinion of the Attorney General, No. 01-10 (Dec. 14, 2001) (citing 1974 Op. Att'y Gen. 74-115). See also Avery v. State, 295 Ga. 630, 632 (2014); see also Franzen v. Downtown Dev. Auth. of Atlanta, S20A0328, 2020 WL 3580156, at *9 (Ga. June 29, 2020). 92. Avery v. State, 295 Ga. 630, 632 (2014). 93. Franzen v. Downtown Dev. Auth. of Atlanta, S20A0328, 2020 WL 3580156, 9. 94. Nations v. Downtown Dev. Auth., 255 Ga. 324 (1985). 95. Ga. Const. art. IX, 3, para. I(a). 96. Management of Title and Granting Use of Real Property, Army Reg. 405-80, 1-4(a). 97. Army Reg. 405-80, 1-4(b), Appendix B. 98. Army Reg. 405-80, 4-1(a). 99. Easements for Rights-of-Way, U.S. Code 10 2668(a). 100. Easements for Rights-of-Way, U.S. Code 10 2668(c). 101. Construction and Operation of Public Parks and Recreational Facilities in Water Resource Development Projects, U.S. Code 16 460d. 102. USACE Non-Recreation Outgrant Policy ER 1130-5-550, section 17-2. 103. Easements for Rights-of-Way, U.S. Code 10 2668(d). 104. GDOT, Plan Development Process (revised February 2019), A-1.
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105. GDOT, Plan Presentation Guide (revised July 2017), 3-7. 106. GDOT (2013), Preliminary Field Plan Review Inspection Request Checklist, http://mydocs.dot.ga.gov/info/gdotpubs/Publications/2440-1c.pdf, last accessed September 24, 2020. 107. GDOT, External Right of Way Manual (Revised May 2015), 8.7.
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Appendix A

List of Stakeholder Interviews

Interview #

Name

Org

Team

Job Title

Date

Email

Phone Number

1 Kim Boyd

GDOT Office of R/o/W

Special Parcels Coordinator

2/28/2020 kboyd@dot.ga.gov

(706) 646-7554

1 Tiffany Robinson GDOT Office of R/o/W

Local Government Manager

2/28/2020 trobinson@dot.ga.gov

(404) 347-0195

2 Lisa Westberry

GDOT Office of Environmental Services Special Projects Coordinator

3/12/2020 lwestberry@dot.ga.gov

(404) 631-1772

3 Clark Wong

SPC Land Division

Land Manager

4/9/2020 clark.wong@spc.ga.gov

(404) 656-2360

3 Kelie Moore

DNR Coastal Resources Division

Federal Consistency Coordinator

4/9/2020 Kelie.Moore@dnr.ga.gov

(912) 264-7218

4 Matthew Cline

GDOT Administration Division

General Counsel

4/13/2020 mcline@dot.ga.gov

(404) 631-1496

5 Susan Beck

GDOT Office of Bridge Design (Hydraulics) Bridge Group Design Leader

4/15/2020 sbeck@dot.ga.gov

(404) 631-1862

6 George Lewis

SAAG Private Practice

SAAG, Savannah

4/20/2020 George@LewisLawGroup.net

(912) 629-0671

7 Paul Dunbar

SAAG Private Practice

SAAG, Augusta

5/11/2020 pauldunbar@bellsouth.net

(706) 722-7542

8 Virginia Harman

SAAG Private Practice

SAAG, Rome

5/13/2020 vharman@msp-lawfirm.com

(706) 291-6223

9 Matthew Cline

GDOT Administration Division

General Counsel

5/14/2020 mcline@dot.ga.gov

(404) 631-1496

10 Kim Boyd

GDOT Office of R/o/W

Special Parcels Coordinator

5/21/2020 kboyd@dot.ga.gov

(706) 646-7554

10 Tiffany Robinson GDOT Office of R/o/W

Local Government Manager

5/21/2020 trobinson@dot.ga.gov

(404) 347-0195

11 Kelvin Mullins

GDOT District Level

D1 - District Engineer, Gainesville 5/27/2020 kemullins@dot.ga.gov

(770) 532-5526

11 SueAnne Decker

GDOT District Level

D1 - District Construction Engineer 5/27/2020 sdecker@dot.ga.gov

(404) 463-5023

12 Van Mason

GDOT District Level

D4 - District Engineer, Tifton

5/27/2020 vmason@dot.ga.gov

(229) 386-3280

13 Lisa Westberry

GDOT Office of Environmental Services Special Projects Coordinator

5/28/2020 lwestberry@dot.ga.gov

(404) 631-1772

13 Tiffany Robinson GDOT Office of R/o/W

Local Government Manager

5/28/2020 trobinson@dot.ga.gov

(404) 347-0195

14 David Acree

GDOT District Level

D6 - District Engineer, White

5/28/2020 dacree@dot.ga.gov

(770) 387-3619

14 Grant Waldrop

GDOT District Level

D6 - District Engineer, White

5/28/2020 gwaldrop@dot.ga.gov

(678) 721-5286

15 Robert McCall

GDOT District Level

D5 - District Engineer, Jesup

5/29/2020 rmccall@dot.ga.gov

(912) 530-4353

15 Troy Pittman

GDOT District Level

D5

5/29/2020 tpittman@dot.ga.gov

-

16 Sean Connolly

SCDOT Permitting Division

Manager

6/16/2020 ConnollyMS@scdot.org

(803) 737-1398

16 Vince McCarron

SCDOT Permitting Division

Mitigation Analyst

6/16/2020 McCarronVJ@scdot.org

(803) 737-1976

16 Chris Beckham

SCDOT Permitting Division

Permits Coordinator

6/16/2020 BeckhamJC@scdot.org

(803) 737-1332

17 Jim McGowan

NCDOT Right of Way Unit, Appraisal

State Appraiser

6/16/2020 jmcgowan@ncdot.gov

(917) 707-4388

17 Heather Fulghum NCDOT Right of Way Unit

Manager of Right of Way

6/16/2020 hfulghum@ncdot.gov

(917) 707-4363

18 Derrick Weaver

NCDOT Environmental Policy Unit

Unit Head

6/26/2020 dweaver@ncdot.gov

(919) 707-6253

18 Heather Fulghum NCDOT Right of Way Unit

Manager of Right of Way

6/26/2020 hfulghum@ncdot.gov

(917) 707-4363

19 Daniel Redgate

VDOT Environmental

Water Resources Program Manager 6/30/2020 Daniel.Redgate@vdot.virginia.gov (804) 968-8557

20 John Williams

NCDOT RK&K Engineering, Consulting Former NCDOT staffer

7/17/2020 jwilliams@rkk.com

(919) 802-5649

21 Marcia Henderson FDOT District Right of Way

Deputy Director, District 2 (Retired) 7/29/2020 Marcia.Henderson@dot.state.fl.us (386) 961-7765

22 Jeff Hoge

TDOT Right of Way & Utilities Division Director

7/30/2020 Jeff.Hoge@tn.gov

(615) 741-3196

23 Susannah Kniazewycz TDOT Environmental Division

Director

8/3/2020 Susannah.kniazewycz@tn.gov

(615) 741-3655

24 Olu Okunola

MDOT Office of Real Estate

Director

8/5/2020 OOkunola@mdot.maryland.gov (410) 545-8754

52

Appendix B

Wildlife Resource Division List of Existing Boat Ramp Locations

ID Boat Ramp Location Name

Waterbody

Waterbody Type County DNR Basin

Owner

1 Old River Road

Coosa River

River

Floyd

Coosa

Alabama Power

2 State Highway 225

Coosawattee River River

Gordon Coosa

DNR-WRD

3 State Highway 140

Oostanaula River River

Floyd

Coosa

DNR-WRD

4 State Highway 156

Oostanaula River River

Gordon Coosa

Gordon County

5 Highway 136 Connector

Oostanaula River River

Gordon Coosa

DNR-WRD

Oglethorpe Power

6 Rocky Mountain PFA

Antioch Lake East Small Impoundment Floyd

Coosa

Co.

Oglethorpe Power

7 Rocky Mountain PFA

Antioch Lake West Small Impoundment Floyd

Coosa

Co.

Oglethorpe Power

8 Rocky Mountain PFA

Heath Lake

Small Impoundment Floyd

Coosa

Co.

9 State Route 1 Loop

Etowah River

River

Floyd

Coosa

Floyd County

10 Moccasin Creek

Lake Burton

Major Reservoir Rabun Savannah

DNR-WRD

11 Canal Lake

Nottely Lake

Major Reservoir Union

Tennessee

TVA

12 Jacks Creek

Nottely Lake

Major Reservoir Union

Tennessee

USFS

13 Ellison Bridge (CR142)

Brier Creek

River

Burke

Savannah

Burke Co

14 Broad River (SR17)

Broad River

River

Elbert

Savannah

GA-DOT

15 Campellton Road (SR166/154) Chattahoochee River River

Fulton Chattahoochee DNR-WRD

16 Morgan Falls Park

Chattahoochee River River

Fulton Chattahoochee Georgia Power

17 Fishing Creek (SR79)

Clarks Hill Lake

Major Reservoir Lincoln Savannah

COE

18 State Highway 78/Little River Clarks Hill Lake

Major Reservoir McDuffie Savannah

COE

19 Pearl Mill

Lake Richard Russell Major Reservoir Elbert

Savannah

COE

20 Shuck Pen Eddy

Lake Richard Russell Major Reservoir Elbert

Savannah

COE

21 Elbert County Park

Lake Richard Russell Major Reservoir Elbert

Savannah

COE

22 Middleton

Lake Richard Russell Major Reservoir Elbert

Savannah

COE

23 Dry Fork Creek

Lake Richard Russell Major Reservoir Elbert

Savannah

COE

24 Coldwater Creek

Lake Richard Russell Major Reservoir Elbert

Savannah

COE

25 McDuffie PFA

Jones (8E)

Small Impoundment McDuffie Savannah

DNR-WRD

26 McDuffie PFA

Willow (4E)

Small Impoundment McDuffie Savannah

DNR-WRD

27 McDuffie PFA

Clubhouse (1W)

Small Impoundment McDuffie Savannah

DNR-WRD

28 Dyar Pasture

Oconee River

River

Greene Oconee

USFS

29 Redlands (SR15)

Oconee River

River

Greene Oconee

USFS

30 State Highway 78

Ogeechee River

River

Jefferson Ogeechee

GA-DOT

31 US Highway 1 (SR4)

Ogeechee River

River

Jefferson Ogeechee

GA-DOT

Owner Type Private State State County State
Private
Private
Private County State Federal Federal County State State State Federal Federal Federal Federal Federal Federal Federal Federal State State State Federal Federal State State

53

ID Boat Ramp Location Name 32 State Highway 88
Yuchi WMA - Brighams 33 Landing 34 Lock & Dam 35 McDuffie PFA 36 McDuffie PFA 37 McDuffie PFA 38 McDuffie PFA 39 Mossy Creek Hand Launch
Marjorie Kahn Popper Hand 40 Launch 41 Big Lazer WMA Hand Launch 42 Idle Hour Park 43 Big Lazer PFA Lake 44 Charlie Elliott Wildlife Center 45 Charlie Elliott Wildlife Center 46 Charlie Elliott Wildlife Center 47 Charlie Elliott Wildlife Center 48 Charlie Elliott Wildlife Center 49 Charlie Elliott Wildlife Center 50 Hollingsworth Ferry 51 Rotary Park 52 Dykes Landing 53 Knowles (SR96) 54 Key Bridge (SR83) 55 Milledgeville (SR22) 56 Central State 57 Dennis Station Access Area #1 58 Hawkins Bridge 59 Sandy Hammock (SR230)

Waterbody Ogeechee River
Savannah River Savannah River Rod Bender (3E) Bridge (3W) Beaver Lodge (4W) Bream Buster (2W) Chattahoochee River
Ocmulgee River Flint River Bartlett's Ferry Lake Big Lazer PFA Lake Whitetail Lake Lake Bennett Lake Shepard Fox Lake Lake Margery Dairy Lake Chattahoochee River Chattahoochee River Ocmulgee River Ocmulgee River Ocmulgee River Oconee River Oconee River Lake Sinclair Flint River Ocmulgee River

Waterbody Type County

River

Jefferson

River

Burke

River

Richmond

Small Impoundment McDuffie

Small Impoundment McDuffie

Small Impoundment McDuffie

Small Impoundment McDuffie

River

Hall

River

Jasper

River

Talbot

Major Reservoir Harris

Small Impoundment Talbot

Small Impoundment Jasper

Small Impoundment Jasper

Small Impoundment Jasper

Small Impoundment Jasper

Small Impoundment Jasper

Small Impoundment Jasper

River

Heard

River

Muscogee

River

Bleckley

River

Houston

River

Jasper

River

Baldwin

River

Baldwin

Major Reservoir Putnam

River

Crawford

River

Pulaski

DNR Basin

Owner

Ogeechee

GA-DOT

Owner Type State

Savannah

DNR-WRD

Savannah

Richmond Co.

Savannah

DNR-WRD

Savannah

DNR-WRD

Savannah

DNR-WRD

Savannah

DNR-WRD

Chattahoochee DNR-WRD

State County State State State State State

Ocmulgee DNR-WRD

State

Flint

DNR-WRD

State

Chattahoochee Georgia Power Private

Flint

DNR-WRD

State

Oconee

DNR-WRD

State

Oconee

DNR-WRD

State

Oconee

DNR-WRD

State

Oconee

DNR-WRD

State

Oconee

DNR-WRD

State

Oconee

DNR-WRD

State

Chattahoochee DNR-WRD

State

Chattahoochee City of Columbus Municipal

Ocmulgee

Bleckley County County

Ocmulgee

Houston Co.

County

Ocmulgee

GA-DOT

State

Oconee

DNR-WRD

State

Oconee

DHR Central State State

Oconee

Georgia Power Private

Flint

GA-DOT

State

Ocmulgee

DNR-WRD

State

60 Hawkinsville (Mile Branch Park) Ocmulgee River

61 Upper Sinclair (SR16)

Lake Sinclair

Miller Lake - Oconee National

62 Forest

Miller Lake

63 Joe Kurz WMA

White Oak Creek

River Major Reservoir

Pulaski Ocmulgee Hancock Oconee

Small Impoundment Jones

Altamaha

River

Meriwether Flint

Pulaski County GA-DOT
USFS DNR-WRD

County State
Federal State

54

ID Boat Ramp Location Name 64 Ocmulgee PFA/WMA 65 Sinclair Dam 66 Flat Creek PFA 67 Deep Creek 68 Hall's Bridge
Penholloway Swamp/Cogdon 69 Lake 70 Marine Corps Ditch 71 State Highway 32 72 George Hooks (SR49) 73 Punks Landing 74 Odom Creek 75 Ralph King (SR253) 76 Sandy Branch 77 State Highway 93 78 Hadley Ferry Bridge 79 Wallace Bins (SR118) 80 Bottsford (SR45) 81 Newton (SR37) 82 Crooks Landing 83 Brinson Bridge Landing (SR38) 84 Norman's Ferry 85 Silver Lake WMA 86 Silver Lake WMA 87 Silver Lake WMA 88 Silver Lake WMA 89 Silver Lake WMA 90 Statenville (SR94) 91 Carter Bight 92 State Highway 135 / US 221 93 McNatt Falls 94 Grays Landing 95 US Highway 1 (Bridge)
Williamsburg Landing 96 (Sansavilla WMA) 97 Upper Wayne County Landing

Waterbody Ocmulgee PFA Lake Oconee River Flat Creek PFA Lake Oconee River Little Ohoopee River

Waterbody Type County

Small Impoundment Pulaski

River

Baldwin

Small Impoundment Houston

River

Laurens

River

Emanuel

DNR Basin Ocmulgee Oconee Ocmulgee Oconee Altamaha

Owner DNR-WRD Georgia Power DNR-WRD Unknown DNR-WRD

Altamaha River

River

Wayne

Altamaha

DNR-WRD

Flint River

River

Dougherty Flint

City of Albany

Flint River

River

Lee

Flint

GA-DOT

Flint River

River

Macon

Flint

GA-DOT

Flint River

River

Mitchell Flint

Mitchell County

Lake Andrews

Major Reservoir Early

Chattahoochee COE

Lake Seminole

Major Reservoir Decatur Flint

COE

Lake Walter F. George Major Reservoir Clay

Chattahoochee COE

Ochlocknee River River

Grady

Ocholockonee GA-DOT

Ochlocknee River River

Grady

Ocholockonee Grady Co

Kinchafoonee Creek River

Terrell

Flint

Terrell Co.

Kinchafoonee Creek River

Webster Flint

GA-DOT

Flint River

River

Mitchell Flint

Mitchell Co

Flint River

River

Macon

Flint

DNR-WRD

Spring Creek

River

Decatur Flint

GA-DOT

Flint River

River

Baker

Flint

Baker Co.

Silver Lake North Small Impoundment Decatur Flint

DNR-WRD

Cutoff Pond

Small Impoundment Decatur Flint

DNR-WRD

House Pond

Small Impoundment Decatur Flint

DNR-WRD

Frog Pond

Small Impoundment Decatur Flint

DNR-WRD

Panic Pond

Small Impoundment Decatur Flint

DNR-WRD

Alapaha River

River

Echols

Suwannee

Echols Co

Altamaha River

River

Appling Altamaha

Appling Co.

Altamaha River

River

Montgomery Altamaha

GA-DOT

Altamaha River

River

Toombs Altamaha

DNR-WRD

Altamaha River

River

Toombs Altamaha

Toombs

Altamaha River

River

Toombs Altamaha

GA-DOT

Altamaha River Altamaha River

River River

Wayne Wayne

Altamaha Altamaha

DNR-WRD Wayne Co

Owner Type State Private State Unknown State
State State State State County Federal Federal Federal State County County State County State State State State State State State State County County State State County State
State County

55

ID Boat Ramp Location Name 98 State Highway 169 East 99 Dodge County PFA 101 Evans County PFA 102 Troupeville Landing 103 Ben Hill County Landing 104 Hinsons Landing 105 Half Moon | Abbeville Landing 106 Beaverdam WMA 107 Shady Field Landing 108 Bell's Ferry 109 Mt. Vernon Bridge (US280) 110 Axson 111 Atkinson County Landing 112 Burnt Fort 113 State Highway 121 114 State Highway 94 115 Paradise PFA 116 Paradise PFA 117 Paradise PFA 118 Paradise PFA 119 Paradise PFA 120 Paradise PFA 121 Paradise PFA 122 Paradise PFA 123 Paradise PFA 124 State Line (SR31) 125 Cook County Landing (SR76) 126 Zirkle Landing 127 Traders Hill 128 Deen's Landing
J.E. Stanfield (Big Hammock 129 WMA) 130 Gillis PFA 131 Gillis PFA 132 Eason Bluff 133 Evans County PFA

Waterbody

Waterbody Type County DNR Basin

Canoochee River River

Evans

Ogeechee

Dodge Cty PFA Lake Small Impoundment Dodge

Ocmulgee

Lake Longleaf

Small Impoundment Evans

Ogeechee

Little River

River

Lowndes Suwannee

Ocmulgee River

River

Ben Hill Ocmulgee

Ocmulgee River

River

Jeff Davis Ocmulgee

Ocmulgee River

River

Wilcox Ocmulgee

Oconee River

River

Laurens Oconee

Oconee River

River

Laurens Oconee

Oconee River

River

Montgomery Oconee

Oconee River

River

Wheeler Oconee

Satilla River

River

Atkinson Satilla

Satilla River

River

Atkinson Satilla

Satilla River

River

Charlton Satilla

Satilla River

River

Pierce

Satilla

Saint Marys River River

Charlton Saint Marys

Lake Paradise

Small Impoundment Berrien Suwannee

Lake Bobben

Small Impoundment Berrien Suwannee

Lake Patrick

Small Impoundment Berrien Suwannee

Tacklebuster Lake Small Impoundment Berrien Suwannee

Horseshoe 3 Lake Small Impoundment Berrien Suwannee

Horseshoe 4 Lake Small Impoundment Berrien Suwannee

Horseshoe 5 Lake Small Impoundment Berrien Suwannee

Lake Beaver

Small Impoundment Berrien Suwannee

Lake Russell

Small Impoundment Berrien Suwannee

Withlacoochee River River

Lowndes Suwannee

Little River

River

Cook

Suwannee

Little Satilla River River

Pierce

Satilla

Saint Marys River River

Charlton St. Mary's

Altamaha River

River

Appling Altamaha

Altamaha River
Gillis PFA Lower Lake Gillis PFA Upper Lake
Altamaha River Lake Woody

River

Tattnall

Small Impoundment Laurens

Small Impoundment Laurens

River

Appling

Small Impoundment Evans

Altamaha Altamaha Altamaha Altamaha Ogeechee

Owner Evans Co DNR-WRD DNR-WRD Lowndes Co. Ben Hill Co DNR-WRD Wilcox Co DNR-WRD Private DNR-WRD GA-DOT DNR-WRD GA-DOT GA-DOT GA-DOT Charlton Co DNR-WRD DNR-WRD DNR-WRD DNR-WRD DNR-WRD DNR-WRD DNR-WRD DNR-WRD DNR-WRD DNR-WRD GA-DOT DNR-WRD Charlton Co. Appling Co.
DNR-WRD DNR-WRD DNR-WRD DNR-WRD DNR-WRD

56

Owner Type County State State County County State County State Private State State State State State State County State State State State State State State State State State State State County County
State State State State State

ID Boat Ramp Location Name 134 Town Bluff (SR135) 136 Brier Creek (SR73) 137 Canoochee (US280) 138 Ebenezer Creek 139 Morgan's Bridge (SR204) 140 Tuckasee King
Tuckahoe WMA - Dicks 141 Lookout 142 Burton's Ferry (US301) 143 Poor Robins Landing 144 Oglethorpe Bluff Landing 145 Johnston Station 146 Tuckahoe WMA-Miller Lake

Waterbody Altamaha River Brier Creek Canoochee River Ebenezer Creek Ogeechee River Savannah River
Savannah River Savannah River Savannah River Altamaha River Altamaha River Savannah River

Waterbody Type River River River River River River

County Jeff Davis Screven Bryan Effingham Bryan Effingham

DNR Basin Altamaha Savannah Ogeechee Savannah Ogeechee Savannah

Owner DNR-WRD GA-DOT Bryan Co Effingham Co GA-DOT Effingham Co

River River River River River River

Screven Screven Screven Wayne Long Screven

Savannah Savannah Savannah Altamaha Altamaha Savannah

DNR-WRD Screven Co Screven Co Wayne GA-DOT DNR-WRD

147 Tuckahoe WMA- Possum Eddy 148 Blue Springs 149 Dennis Station Access Area #2
Scuffle Bluff - Horse Creek 150 WMA
Mayor's Park - City of 151 Hiawassee 153 Sutton's Park Landing 155 Rocky Hammock 156 Ochise Landing 157 Pope's Ferry Landing 160 Barr's Bluff 161 Hwy 36 Hand Launch

Savannah River Savannah River Lake Sinclair
Ocmulgee River
Lake Chatuge Kinchafoonee Creek Ocmulgee River Ocmulgee River Ocmulgee River Ocmulgee River Flint River

River River Major Reservoir
River
Major Reservoir River River River River River River

Screven Screven Putnam

Savannah Savannah Oconee

Telfair Ocmulgee

Towns Lee Jeff Davis Dodge Monroe Coffee Upson

Tennessee Flint Ocmulgee Ocmulgee Altamaha Ocmulgee Flint

DNR-WRD Screven Co. Georgia Power
DNR-WRD
TVA Lee County GA-DNR Dodge Co. Monroe County Coffee County

Owner Type State State County County State County
State County County County State State
State County Private
State
Federal County State County County County

57