Quoted from
http://www.dec.ny.gov/regulations/74771.html (highlights and underlines are all mine)
If a waterway satisfies all the criteria for being navigable-in-fact,
it is open to public navigation for any purpose, whether commercial or recreational, even if the stream cannot be navigated against the current. Moreover, a waterway, once navigable, remains navigable even if navigability subsequently diminishes or ceases. People v. System Properties, Inc. 120 N.Y.S. 2d 269, 278 (3d Dep't 1953).
Furthermore, the right of navigation includes all incidental uses that are reasonably necessary in order to enjoy the right, such as portaging over private property to avoid rapids, falls or obstructions, as long as this occurs by the shortest, most direct safe route. The public also has the right to walk on the bed of the waterway to guide a boat through shallow areas, to go on privately-owned shoreline to scout for the best route, and to otherwise touch the streambed incident to navigation. Adirondack League Club, Inc. at 607. However, the public right of navigation does not include a right to go on private property to picnic, hike, camp, or hunt, or to cross private property to gain access to or egress from navigable waterways. In other words, the public right of navigation does not include intrusion on private property except as necessary for safe water passage.
Finally,
evidence of recreational use can be useful in determining whether a waterway is navigable in fact. The Court of Appeals has stated: "(w)e hold . . . that evidence of a river's capacity for recreational use is in line with the traditional test of navigability, that is, whether a river has practical utility for trade or travel." Adirondack League Club, Inc. at 600. The Court also stated:
... We do not broaden the standard of navigability in fact, but merely recognize that recreational use fits within it. Many cases including Morgan
v. King, support the view that a river navigable by small boat, raft or skiff is subject to the public easement... We only hold that such transport
need not be limited to moving goods in commerce, but can include some recreational uses. Practical utility for travel or transport nevertheless
remains the standard. (Emphasis added.) Adirondack League Club, Inc. at 603.
In light of these decisions,
it is DEC policy that a waterway is subject to the right of navigation if it has capacity for trade or travel for either commercial or recreational purposes.
Waterways subject to the public right of navigation may be navigated for any commercial or recreational purpose, and attempts by landowners to interfere with the public's right to navigate violates the State's trust interest in the waterway, i.e., the owner of a navigable waterway has no right to close it to the public or otherwise harass the public. The presence of barriers, "no trespassing" or "posted" signs, signs that threaten criminal prosecution, or oral statements by landowners discouraging navigation do not alter whether a waterway is navigable-in-fact. Rather, such posting, obstructions and statements concerning a waterway that is navigable-infact constitute a public nuisance in violation of the common law right of public navigation. Either the State or the public can sue a landowner if a landowner tries to interfere with the public's right to navigate on waterways that are navigable-in-fact.