"However, even if the waterway is deemed non-navigable and the land beneath the waterway may be privately owned, Tennessee law generally recognizes that the public maintains “a right to the free and uninterrupted use and enjoyment of such stream for all the purposes of transportation and navigation to which it is naturally adapted.” The Pointe Ass’n, LLC v. Lake Management Inc., 50 S.W.3d 471, 476 (Tenn. Ct. App. 2000) (quoting State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 749 (1913)). See also Bauman v. Woodlake Partners, LLC, 199 N.C. App. 441, 448-449, 681 S.E.2d 819, 824-825 (2009). But see Austa La Vista, LLC v. Mariner’s Pointe Interval Owners Ass’n, Inc. 173 S.W.3d 786, 791 (Tenn. Ct. App. 2005) (master deed and other documents appropriately restricted timeshare owners use of lake next to condominium timeshare by requiring payment of applicable fees to use the lake and other amenities)."-- Tennessee Office of the State Attorney General October 21, 2011 Opinion No. 11-75 

"A determination by the U.S. Army Corps of Engineers that a river is navigable may be considered by a jury and even given substantial weight in determining ownership rights to the land beneath the river. However this determination is not binding on the question of whether the waterway is navigable in the legal sense, under Tennessee law, so as to affect ownership rights. A private landowner would be entitled to introduce contrary proof and to question the Corps‟ determination and the procedures used to reach it. Thus, the question whether a river is legally navigable is for a jury to determine based on a factual record developed in a lawsuit."

"“Federal law gives the Corps of Engineers the power to declare waterways navigable for the purpose of furthering its mission.” Pierce Hardy, 2001 WL 1216992 at *7. See 33 U.S.C. Part 329 (2011). Although these determinations are “considered binding in regard to the activities of the Corps of Engineers,” the Corps‟ regulations acknowledge that “precise definitions of „navigable waters of the United States‟ or „navigability‟ are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies.” 33 C.F.R. § 329.3 (2011). Thus, the Corps‟ navigability determinations are not binding on a federal court. See, e.g., Miami Valley Conservancy Dist. v. Alexander, 692 F.2d 447, 449, 451 (6th Cir. 1982), cert. denied, 462 U.S. 1123 (1983) (Although “the Corps determined that the River was navigable . . . [t]he District Court did not err in its factual or legal conclusions that the upper portion of the River and the tributaries were not navigable.”). 

"In considering this question in Pierce Hardy, the Tennessee Court of Appeals held that if a navigability determination by the Corps is not binding on federal courts, “such agency determination cannot be binding on Tennessee courts on the question of whether a waterway is navigable in the legal sense, under state law, so as to affect ownership rights.” 2001 WL 1216992 at *8. The appellate court did note that the Corps‟ regulations provide that its navigability determinations should be “accorded substantial weight by the courts.” Id. (quoting 33 C.F.R. § 329.14(a) (2011)).2 The Court of Appeals concluded in Pierce Hardy that even if a navigability “determination by the Corps may be accorded substantial weight, Landowner is entitled to introduce contrary proof and to question the Corps‟ determination and the procedures used to reach it.” 

--- Tennessee Office of the State Attorney General October 21, 2011 Opinion No. 11-75