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On Water Law
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:
(1) Use a cooler, icebox, or similar nonglass container, and shall not use, other than containers for substances prescribed by a licensed physician, 9 Copyright 2010, Harry Styron
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.
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)
CURRENT NEWS ARTICLES |
What is success? John Q. answers Springfield Business Journal
August 25, 2010 | |
I've never known anyone who didn't want to be successful. And yet if you asked a cross section of people how they would define success, you might get a variety of answers.
Popular literature is replete with formulas for success in business and personal life. I sat down recently with John Q. Hammons, a longtime friend, to get his prescription for the success he has experienced.
Hammons, simply known as John Q. throughout the Ozarks and in hotel and development circles, would be acknowledged as a successful business man. Now 91 years old, he continues to plan hotel and development projects throughout the country. His projects in Springfield and northwest Arkansas have changed the faces of those communities, and his projects elsewhere have had similar transforming effects.
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Story continues here
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New microbe discovered eating oil spill in Gulf
Tulsa World
8/24/2010
WASHINGTON - A newly discovered type of oil-eating microbe is suddenly flourishing in the Gulf of Mexico.Scientists discovered the new microbe while studying the underwater dispersion of millions of gallons of oil spilled into the Gulf following the explosion of BP's Deepwater Horizon drilling rig. And the microbe works without significantly depleting oxygen in the water, researchers led by Terry Hazen at Lawrence Berkeley National Laboratory in Berkeley, Calif., reported Tuesday in the online journal Sciencexpress. "Our findings, which provide the first data ever on microbial activity from a deepwater dispersed oil plume, suggest" a great potential for bacteria to help dispose of oil plumes in the deep-sea, Hazen said in a statement.
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Arkansas Watershed Advisory Group's (AWAG) Watershed Conference on November 18th through the 20th at the Ozark Folk Center in Mountain View, Arkansas
The summer's heat seems to increase our awareness of water's importance on our daily lives. The water needed to keep our bodies hydrated, to sustain our crops and livestock, and for our recreational enjoyment becomes more of a concern.
Arkansas's waters will be highlighted at the Arkansas Watershed Advisory Group's (AWAG) Watershed Conference on November 18th through the 20th at the Ozark Folk Center in Mountain View, Arkansas which is located in the Middle White River Watershed. There will be a pre-conference field tour, including visits to the Ozark St. Francis National Forest, USGS Monitoring Station, Stream Restoration Sites and tours of a local water and wastewater treatment plant.
The pre-conference workshop will also include nationally and state recognized Project WET, Project WILD, and Project Learning Tree for formal and non-formal educators. The key-note speaker, wil be Chad Pregracke, author of From the Bottom Up and organizer of the only "industrial strength" river clean-up organization and founder of Living Lands & Waters, an organization recently featured on the Discovery Channel. Mr. Pregracke will recount watershed stories and describe his journey along the Mississippi, North America's largest river.
For more information about this exciting and one of a kind Watershed Conference visit the AWAG website at www.awag.org. We hope you will be able to join us.
Sincerely,
Sarah R. DeVries
Environmental Program Coordinator
Arkansas Department Environmental Quality
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Lake Cleanup Series: Pilot Event
Table Rock Lake | Branson, MO | October 16, 2010 Professional anglers are more than sportsmen, they are stewards. Its true of the sports fans, too. Thats why Recycled Fish and the PAA have teamed up to bring a lake cleanup event to PAA Tour Level Tournaments beginning with the Table Rock Lake event in October, 2010. While the competitors are out on the water, fans, local community organizations and individuals will scour the shorelines, boat ramps and park areas to remove trash. Volunteers will return to the tournament weigh-in stage with trash in hand, weigh it and deposit it ceremoniously into a dumpster. By the time the anglers are in from a day of competition, the lake will be in better shape than when they launched that morning. Volunteers will receive special recognition including an award for the individual and group who removes the most trash. Recycled Fish Ambassadors will also be onsite inviting people to take the Sportsmans Stewardship Pledge, and offering information on how to fight other risks to our waters, such as invasive species and chemical pollution. We encourage you to join us in a day at the lake that will not only be a lot of fun, it will make a big difference - and a big statement - about your commitment to being a caretaker of the waters we love. After all, our lifestyle runs downstream, and we arent just sportsmen, we are stewards. For more information contact Teeg Stouffer | Executive Director | Recycled Fish [email protected] | 402.873.7255
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