Ozark Waters

John Moore

Two weeks ago the Bull Creek Association met in Ozark, Missouri to hear brief presentations about the laws applicable to lakes and streams and the regulatory requirements of the Corps of Engineers. Harry Styron, an attorney in Branson quite knowledgeable about water law, fielded numerous questions from those attending about their rights and interests as landowners along the Bull Creek watershed.

A number of the questions related to riparian landowner prerogatives in preventing recreational users from being on the steam where it adjoins their property. In addition to responding to questions of this sort, and as further documentation about what the law allows, Styron provided a summary of the laws applicable to lakes, streams, groundwater and other water resources.

As we noted in last week's newsletter, a copy of this paper by Harry Styron has been included on the Foundation's website and readers can check this reference at uwrb.org. We are doing some research to see if a similar summary of Arkansas laws might be available but presumably there will be many similar provisions.

Because of the interest in these legal issues, we've excerpted below several sections of Harry Styron's paper which is clear, provides a comprehensive overview and offers further references to the statutory and case law about water. I hope these excerpts will be both informative and helpful to readers.

Missouri's Laws relating to Streams

by Harry Styron,

([email protected]; styronblog.com)

The law of streams is not just about water, but the things in it, the use of the water itself, the right to withdraw the water and discharge into it, the use of the streambanks, and rights of access.

The legal rules regarding running water must be drawn from a mess of federal and state statutes and the common law.

A helpful resource is the 300-page compilation made in 2000,

A Summary of Missouri Water Laws, prepared by Richard Gaffney and Charles Hays, with contributions by William J. Bryan IV and Amy E. Randles, published by the Missouri Department of Natural Resources.
Basic principles

1. The water in streams belongs to the people of the state.

2. The wildlife in streams belongs to the people of the state. � 252.030 RSMo. State and federal agencies regulate if, how and when wildlife may be taken from streams.

3. The concept of navigability is historically important in understanding statutes and case law, but is now of limited use in explaining rights, which are mostly governed by administrative regulations adopted under modern statutes.

� Historically, if a stream was navigable it was a public highway, with the state owning the streambed.

� Historically, if a stream was not navigable, real estate titles from adjacent land extended from the meander line to the middle thread of the stream, subject to the police power of the state.

� No court or government agency determines points of navigability under state or federal law in advance of disputes.

4. Riparian owners have rights of access to the adjacent stream and rights to take (but not to own) water and gravel from the stream for use on the riparian property.

5. Federal and state administrative law governs most legal issues regarding streams and their uses, at least in part, except for disputes between neighbors, which is a matter for state courts.

Recreational use of streams

A 1954 Missouri Supreme Court case,

Elder v. Delcour, 269 SW2d 17 (Mo. 1954), made possible the growth of the recreational canoeing industry, giving the public the right to wade and boat on floatable streams, "for business or pleasure."Id. at 26. The case also affirmed the right of anyone with a fishing license to fish in a stream, but not to trespass on adjacent land.

The opinion holds that the Meramec River at the point in question is non-navigable, but a public highway. Thus, the public has an easement to travel its waters and submerged streambed and pursue fish. "Since the ownership of the fish in the stream belonged to the state and since respondent was not a trespasser in passing down the stream by boat or by wading, he had the right to fish and to take fish from the stream in a lawful manner."

Id.

State law behavior restrictions directed as behavior on streams

Section 306.220 RSMo requires children under the age of seven to always wear a personal floatation device. Lighting and PFDs for all vessels are described in � 306.100 RSMo.

Section 306.325 RSMo applies to inner tubes, kayaks, and canoes:

1. As used in this section, the following terms mean:

(1) "Navigable waterway", any navigable river, lake, or other body of water located wholly or partly within this state and used by any vessel;

(2) "Vessel", any canoe, kayak, or other watercraft which is easily susceptible to swamping, tipping, or rolling, but does not include any houseboat, party barge, runabout, ski boat, bass boat, excursion gambling boat as defined in section 313.800, RSMo, or similar watercraft not easily susceptible to swamping, tipping, or rolling.

2. Any person entering, traveling upon, or otherwise using navigable or nonnavigable waterways by vessel or innertube and transporting foodstuffs or beverages shall:

any glass container for beverages on a vessel within the banks of navigable waterways;

(2) Use a cooler, icebox, or similar nonglass container sealed in a way which prevents the contents from spilling into the water;

(3) Carry and affix to the vessel a container or bag suitable for containing refuse, waste, and trash materials and which is capable of being securely closed;

(4) Transport all refuse, waste, and trash materials to a place in which such materials may be safely and lawfully disposed; and

(5) Shall safely secure any glass containers to protect them from breakage or discharge into any stream.

3. Any person who violates the provisions of this section is guilty of a class C misdemeanor.

The General Assembly is always worried about nudity and drunkenness on Missouri's streams. Finally, in 2009, section 306.109 RSMo was enacted:

306.109. 1. No person shall possess or use beer bongs or other drinking devices used to consume similar amounts of alcohol on the rivers of this state. As used in this section, the term "beer bong" includes any device that is intended and designed for the rapid consumption or intake of an alcoholic beverage, including but not limited to funnels, tubes, hoses, and modified containers with additional vents.

2. No person shall possess or use any large volume alcohol containers that hold more than four gallons of an alcoholic beverage on the rivers of this state.

3. No person shall possess expanded polypropylene coolers on or within fifty feet of any river of this state, except in developed campgrounds, picnic areas, landings, roads and parking lots located within fifty feet of such rivers. This subsection shall not apply to high density bait containers used solely for such purpose.

4. Any person who violates the provisions of this section is guilty of a class A misdemeanor.

5. The provisions of this section shall not apply to persons on the Mississippi River, Missouri River, or Osage River.

See the full copy of this summary document at www.uwrb.org

QUOTE OF THE WEEK

" The literature of angling falls into two genres: the instructional and the devotional. The former is written by fisherman who write, the latter by writers who fish."

William Humphrey

My Moby Dick (1978)

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