Ironically, the issue of whether or not anglers had the right to wade and fish in those Catskill rivers that were federally classified as navigable by the U.S. Army Corps of Engineers (USCOE) began because of one landowner. 

A man with property along the East Branch of the Delaware River, in the Town of Hancock, posted against fishing. At the time, some of us believed that since the East Branch was classified as a federal navigable river, anglers had the right to wade and fish in that river, provided they did not cross private property for access. 

Since ownership of the river bottom seemed to be the main point of contention, we began to examine the deeds of those landowners who owned property immediately adjacent to the river. What we found, in every deed we researched for that section of river, was those specific landowners owned to the mean low watermark, whatever that meant. 

That’s when we learned about the New York State DEC Office of General Counsel policy, OGC-9. That policy statement was generated to provide guidance for conservation officers, should they be confronted with a landowner/angler trespass issue caused by wading and fishing in rivers where ownership of the bottom was in question. The original OGC-9 policy statement, however, did not authorize wading and fishing in rivers in which ownership of the bottom was an issue. Instead, it prescribed that deeds and other documents be examined before a determination could be made about wading and fishing in those situations. 

So I wrote a column about OGC-9, titled “The public’s right to fish in Catskill navigable rivers,” which appeared in the April 6, 2022 issue of the River Reporter. That piece examined some of the issues associated with the public fishing rights program, primarily the posting problems created by private landowners. It also took a look at OGC-9, and suggested the Office of General Counsel review that policy and reissue its findings. 

That column appeared a little over three years ago. Since that time, there’s been a great deal of research by staff in the Office of General Counsel, along with a significant amount of input from one of my friends, who is a real estate attorney here in Ulster County. Between the state and private counsel, a lot of case law was reviewed and evaluated. It took about three years, but in May of 2024, the DEC Office of General Counsel released a draft update of OGC-9. After comment and review, the final version was released in May of this year. 

That document indicated that anglers could wade and fish in federally classified navigable rivers, regardless of who claimed ownership of the river bottom. 

Sometime during the early spring of 2025, a Syracuse law firm wrote a letter on behalf of the Riverland Defense Fund and Unity Foundation, expressing the members’ concern about the public’s right to wade and fish in the Delaware River and its two main branches. On June 20, the DEC through its Region 4 attorney responded to that letter, explaining that, “the Office of General Counsel has policy that provides guidance and information regarding the issue of the public’s rights of navigation and fishing on waterways and fishing on waterways in New York State, in the context of private property ownership entitled, ‘OGC-9: Public’s Rights of Navigation and Fishing.’” 

That document was revised on May 14, 2025. For those interested, OGC-9 is available for review online by searching that title.

Without going into all the detail explained in the June 20 letter, what it emphasizes is, and I’m quoting here: “if a waterway meets the Federal standard and has been designated a navigable water of the United States this would take precedent under the Supremacy Clause of the United States Constitution (Article VI, Paragraph 2) and the preemption doctrine.”

“Therefore, for the lengths of the Delaware River, the East Branch of the Delaware River, and the West Branch of the Delaware River that are considered navigable waters of the United States, the public has a right to navigate, fish, wade in the water, or walk along the banks up to the ordinary high-water mark, pursuant to the federal public easement, regardless of who owns the bed and banks or whether the waterway is posted against trespass.”

That statement finally clarifies that anglers can now wade and fish in the main stem Delaware and the East and West Branches of the Delaware River. That is, provided they do not cross private property to access those waterways.

It took about four years for the DEC to analyze the historic record and all the available case law, to make a decision to update OGC-9 and make the determination it did, as explained in the quoted sections. This was no easy task, and all the parties in the Office of General Counsel that participated in this process, along with my friend, need to be thanked for the efforts they made on behalf of the anglers of Delaware County and New York State. Like the passage of the Water Releases Legislation in 1976, the revision of OGC-9 and the June 20th letter by the regional attorney, these actions by the DEC have significantly improved access and fishing opportunity in certain rivers in New York State. This is especially important at this time in our history, as more and more land is posted against fishing access.