The Murrell's Inlet thread got me thinking about this one.

For our Resident attorneys, justpracticin, Carolina Counsel, GMAC, etc...

Just how are bird sanctuaries on public, navigable waters, legal in SC? I'm under the belief that they aren't.
Via our State Constitution, they can't be. In fact, any navigable waters within the borders of the water sections of Lake Marion's Santee National Wildlife Refuge, the ACE Basin NWR, or even the creeks that border Yawkey, are indeed navigable and I'm trying to understand how hunting, fishing, and/or can be legally restricted?

Can anyone shed any light on this?



Article XIV, Section 4, of the Constitution of south Carolina states in part that
"all navigable waters shall forever remain public highways free to the citizens of the
State ... and no ... wharf [shall be] erected on the shores or in or over the waters of
any navigable stream unless the same be authorized by the General Assembly." A
navigable stream is defined in S.C. Code Ann. § 49-1-10 (1976) to mean "[a]ll
streams which have been rendered or can be rendered capable of being navigated by
rafts oflumber or timber by the removal of accidental obstructions and all navigable
watercourses and cuts are hereby declared navigable streams and such streams shall
be common highways and forever free .... "
Section 49-1-10 of the South Carolina Code does not change the definition
of navigable waters, but merely emphasizes the law already declared and set out in
Heyward v. Farmers Mining Company, 42 S.C. 138, 19 S.E. 963 (1894). The Court
in Heyward rendered a thorough pronouncement of the law of navigability. As noted
in Heyward, the common law doctrine that the navigability of a stream is to be
determined by the ebb and flow of the tide was repudiated in South Carolina in the
case of State v. Pacific Guano Co., 22 S.C. 50 (1884).
The court clarified in Heyward v. Farmers Mining Company, 19 S.E. at 971,
that neither the character of the craft nor the relative ease or difficulty of navigation
are tests of navigability. The surroundings (e.g. marshland) need not be such that it
may be useful for the purpose of commerce nor that the stream is actually being so
used. The Court points out a distinction between navigable waters of the United
States and navigable waters of the State. In order to be navigable under the United
States, the water must connect with other water highways so as to subject them to the
laws of interstate commerce. This is not a requirement for navigability of waters under the control of the State.

The true test to be applied is whether a stream inherently and by its nature has
the capacity for valuable floatage, irrespective of the fact of actual use or the extent
of such use. Heyward, supra. Valuable floatage is not necessarily commercial
floatage. The Court recognized a tendency of modern judicial thought that water is
navigable which is of such character as to be of general use by the public for pleasure
boating in State v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884, 888 ( 1909),
but did not express any opinion regarding this trend. See also 65 C.J.S. Navigable
Waters, § 6. It is important to note, however, the strong emphasis and protection
afforded public boating. As stated in State v. Columbia Water Power, 63 S .E. at 888,
" ... there cannot be the least doubt that the public is as much entitled to be protected
in its use [of navigable waters] for floating pleasure boats as for any other purpose."
The use of this waterway by the general public for boating, hunting, and
fishing is a legitimate and beneficial public use. It is our view that these waterways
not only have the navigable capacity as required under Heyward v. Farmers Mining
Co., supra, but they are navigable in fact as evidenced by their use by the general
public. The Coastal Council does not have the authority to authorize the complete
blockage of navigable streams of waterways, especially in a case such as this where
there is no overriding public interest. See cf State v. Columbia Water Power Co., 90
S.C. 568, 74 S.E. 26, 27-28 (1911), and cases cited within.