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Category Archives: water law (streams, lakes and groundwater)

Damming the Osage


Damming the Osage: The Conflicted Story of Lake of the Ozarks and Truman Reservoir by Leland and Crystal Payton.
Published by Lens & Pen Press, 4067 Franklin, Springfield MO 65807, $25 postpaid.
See http://www.dammingtheosage.com

dto-cover-720Leland and Crystal Payton, prolific authors of books with lots of photographs about the history and culture of the Ozarks and about American culture generally, have tackled the history of human use and transformation of the Osage River. Their focus is on the political and financial machinations which resulted in the construction of Bagnell Dam and Truman Dam and their impoundments in the along the northwestern boundary of the Missouri Ozarks. Their original photographs and reproductions of graphics from newspapers, maps, magazines and advertising materials, provide a collage of images of the area before and after its transformation, as well as the images created by promoters of how it might look.

The book covers the history of the residents of Osage basin, from prehistory to the present. From its origin in eastern Kansas to Bonnots Mill, the Osage flows through prairies along the northern Ozarks border into the Missouri River, at a point seven miles east of Jefferson City. Many and diverse primary sources, such as the writings of explorers and newspaper accounts, as well as the work of archaeologists, historians and other social scientists, make the book a rich trove.

The theme of book is consistent with my own take on the history of the development of North America over the past five centuries, which is that development has been driven by the opportunities created by government investment for private investors seeking wealth through the subdivision of real estate and exploitation of natural resources. George Washington was a land surveyor, as was Thomas Jefferson’s father Peter. The Washingtons, the Jeffersons and other promoters–working hand in hand with the government–used every public and private resource they could muster to carve up the Appalachian frontier and beyond into reservations, territories and states for private and public gain. Eventually, the whole country became subdivided. In the case of the valley of the Osage River, the land was divided into lake lots and condo units and multi-purpose reservoirs.

Bagnell Dam and Lake of the Ozarks

The Paytons identify Ralph Street, an “obscure Kansas City lawyer,” and Walter Craven, a mortgage banker also from Kansas City, as the fathers of Lake of the Ozarks. Street and Craven wangled a construction permit from the Federal Power Commission for the Bagnell Dam in 1924 and began acquiring options to buy land. The FPC and the Missouri Public Service Commission awarded permanent licenses for the project in 1926 to Craven, who transferred the licenses to Union Electric in 1929, after Craven failed to obtain construction financing.

Unlike other popular accounts of dam-building in the Ozarks, the Paytons pay careful attention to what existed at various times before the construction destroyed towns (Linn Creek) and roads that connected towns, cutting off neighbors from one another. The occupation by Osage Indians is described, as well as the vain attempts to modify the river to enhance navigation in the steamboat era. Later, the valley was the pathway of railroads, many of them unsuccessful. Some sites, such a Monegaw Springs in St. Clair County and Ha Ha Tonka in Camden County, were beautiful places that captured the dreams of real estate salesmen and promoters of tourism.Caplinger Mills

Once Bagnell Dam was completed in 1931, a particular flavor of tourist development was created around Lake of the Ozarks, remnants of which may be seen along the old parts of Missouri Highway 7 and US Highway 54 that have been bypassed by newer roads. The Paytons give us color and black-and-white reproductions of tourist pottery, wood carvings, fieldstone cabins, and garish billboards, as well as the intense condo development that came in the past two decades.

Truman Dam and Truman Lake

Though the Corps of Engineers had opposed the construction of dams, including Bagnell Dam, by private companies, the Corps did not have a clear legislative mandate to build dams for flood control, hydropower, and irrigation, though it had always been engaged in construction and maintenance of levees and drainage of wetlands. In 1926, Congress asked the Corps to study 180 rivers and their tributaries to examine the feasibility of federal construction of reservoirs. The Corps’ report on the Osage basin, delivered in 1933, proposed dams on Pomme de Terre, the Osage River above Osceola, and the Grand River just north of its confluence with the Osage. In 1944, FDR approved the Pick-Sloan Plan for development of the Missouri River basin, and the dams on the upper Osage were among the 107 dams authorized.

Pointing out that “Civic organizations in Warsaw, Clinton and Osceola were convinced that a dam, any dam, anywhere on the Osage would guarantee prosperity,” the Paytons designate Haysler A. Poague, a judge in Clinton, as the “stepfather” of the Truman Dam. Poague became an advocate of one large dam at Kaysinger Bluff near Warsaw, rather than the two smaller dams proposed by the Corps in 1933.

A massive flood in 1951 convinced Congress and the public that spending money to put people to work and to control and store water was worth doing; the Paytons do not point out that the most severe drought in recorded history followed the 1951 flooding, which surely added to the public support for a water project. However, funding of the project was delayed other priorities—the Vietnam War and the War on Poverty, according to the Paytons—but the land acquisition and construction began in the mid-1960s. In 1972, just as work was beginning on the dam, the Environmental Defense Fund, the Missouri chapter of the Wildlife Society, and several other organizations and citizens, including Leland Payton, filed suit in federal court seeking to stop the construction of the project.

The National Environmental Policy Act of 1969 (NEPA) required federally funded projects to be preceded by meaningful environmental impact statements, giving environmentalists a tool to challenge the adequacy of the investigation of ecological impacts of projects. In the case of the Truman Dam, the opponents were concerned about the fate of the paddlefish, among other issues, and could also point out that the cost-benefit analysis provided by the Corps strained to show net economic benefits.

The final third of Damming the Osage depicts the political and legal wrangling over whether Truman Dam and its impoundment would be completed.
Missouri’s congressional delegation led by Senator Stuart Symington, members of the state legislature, and virtually all local officials, as well as chambers of commerce, supported the project, even though biologists and many farmers opposed it.

While the town of Clinton seems to have held its own, most of the Truman Lake area has continued to decline. Missourians have had to cope with the negatives. The Missouri Department of Conservation learned to raise paddlefish in hatcheries, so that they would not be extirpated in the Osage basin. Engineering oversights resulted in fish kills below Truman Dam and massive erosion below Stockton Dam on the Sac River, a major tributary of the Osage, which required additional land acquisition and bank stabilization.

During the same era, the Corps of Engineers’ will and ability to marshal support for dam projects seems to have ended. The Endangered Species Act of 1973 provided environmentalists with stronger arguments. After tremendous fights, Congress deauthorized dam projects on the Meramec River in Missouri and the Buffalo River in Arkansas, as elected officials listened to a broader swath of their constituents and began to question the wisdom of destroying the last few free-flowing rivers.

The Paytons have captured the spirit of the times the book covered. The text is thorough and the images are vivid. While Leland Payton was clearly opposed to the construction of Truman Dam, the positions of the proponents are fairly explained. Damming the Osage is an essential chronicle of how dams and reservoirs gain momentum and get built, even though they make sense perhaps for only a minority.Truman Dam

A deed can be ambiguous, even when its words are clear


“When you come to a fork in the road, take it,” said Yogi Berra, supposedly.

Judge Perigo did something similar in a boundary dispute case,  McLallen v. Tillman, arising on the Elk River in McDonald County, which occupies the southwest corner of Missouri. Like all streams in the Ozarks, the Elk River meanders through its floodplain, splitting and recombining, with seasonal floods shifting the arrangement of channels.

Several deeds said that the boundary of the property was a part of a quarter-section “lying North and West of Elk River.” The trial judge, taking the whole fork,  said that these deeds were not ambiguous, sustaining a motion for summary judgment.

The McLallens weren’t happy, because they thought that the eight acres lying between the north and south fork of the Elk River was theirs. Their neighbors claimed the same land. The McLallens appealed, claiming that the deed may be clear enough on its face, but that this language ignored the reality about the Elk River.

At that point, the Elk River splits into two channels, one carrying more water than the other. In 1984, at the time of one conveyance, the southern channel carried the most water. Sometime in the 1990s, the northern channel began to carry the most water. It’s safe to guess that one of the channels may even go dry during droughts.

The Missouri Court of Appeals reversed the summary judgment, sending the case back for a trial. The basis of the reversal is that the appeals court thought McLallen’s deed, while plain on its face, had a latent ambiguity, one that could be discerned from facts outside the words of the deed. The trial court should have heard evidence about which fork of the Elk River constituted its northern boundary, to determine which of two plausible interpretations of the deed would prevail.

 

 

Addressing water supply issues in the Western Ozarks


Imagine this headline:

Taneycomo trout die as officials refuse to release water from Table Rock Lake

It’s not far-fetched. Something similar happened in the fall of 2011 below Lake Tenkiller, in the Ozarks of eastern Oklahoma, where low water levels resulting from the prolonged drought left that reservoir with no unallocated water. You can get an idea of the reactions from this article in the Sequoyah County Times.  All the water in Tenkiller was spoken for, and the trout fishery suffered.

What’s this about allocation of water? In reservoirs managed by the Corps of Engineers and other federal agencies, the reservoir storage capacity is allocated to various uses. For example, some of the storage capacity in Table Rock Lake is allocated to the Southwest Power Administration, a government agency that sells electricity to private and public utilities. In some reservoirs, some of the capacity is allocated to municipal water supplies or industrial users of water, such as Sequoyah Fuels, mentioned in the article about Lake Tenkiller. The Corps of Engineers is also obligated to store and release water to meet statutory mandates relating to maintenance of adequate water levels for barge traffic downstream. In the western United States, a “recreational allocation” is made to support the whitewater rafting industry.

Water scarcity is moving east, and the pace seems to be accelerating. Jim Milton’s blog, Oklahoma Water Law, does a great job covering water supply issues in Oklahoma and neighboring states. On his blog, you can read about Oklahoma’s proposed comprehensive water plan and conflicts between rural water districts and municipalities, the Tenth Circuit Court of Appeals upholding Oklahoma’s statutes prohibiting the export of water to another state, and the fight over water in Sardis Lake, where Oklahoma City’s attempt to buy the water has been blocked, at least for now, by the assertion of federal power. In reviewing recent blog entries, I was struck by the intensity of the water disputes in eastern Oklahoma and Kansas; Missourians need to pay attention to what is occurring just over the state line.

The Tri-State Water Resource Coalition has been exploring the alternatives for future water supplies for the Western Ozarks. Its annual conference, Securing Our Water Future, will be held in Springfield on November 17 and 18. I’ ll be giving a short presentation at this conference to contrast Missouri’s lack of any allocation system with the ways that surface water and groundwater are allocated in Kansas and Oklahoma. A copy of the text of my presentation is here.

Missouri and Arkansas have had the luxury of pretending that water is free. Unfortunately, the supply is finite. The Tri-State Water Resource Coalition is providing leadership and a forum for discussion. We need wise leaders to learn from the experiences of Kansas and Oklahoma, so that we can be better stewards of the water we all need.

Appellate court can’t rescue City of Monett from legal screw-ups


Appellate courts sometimes seem to make an extra effort to protect small towns and cities from the effects of unwise or unpopular decisions, if the governing body acted in good faith for what the officials believed to be in the public interest. In Inman v. St. Paul Fire & Marine Ins Co, the Southern District of the Missouri Court of Appeals held that the City of Monett’s insurance company would not have to pay a claim made against Monett, after the Monett city attorney failed to inform the insurance company that the papers filed in the lawsuit by Inman had been changed to avoid an exclusion in the City’s insurance policy. Monett is left on its own in working out something with Inman.

Monett’s attempt to solve drainage problems

Monett attempted to solve a stormwater drainage problem in a subdivision by reconfiguring and paving a ditch that ran through part of the Inman property. After a flood while the construction was underway, Monett re-engineered the project and filed a condemnation suit to take and pay for a portion of the Inman property. Inman and Monett entered into a written settlement agreement and the condemnation suit was dismissed.  In the condemnation suit, necessarily, Monett claimed that the drainage project was for public benefit.

Insurance company kept in the dark

After the completion of the project, Inman sued Monett for trespass and damages to Inman’s property. Monett’s attorney contacted Monett’s insurance carrier, St. Paul Fire & Marine, and learned that Monett’s policy didn’t cover damages arising out of the exercise of normal governmental powers, such as taking property for public uses. Ten months later, Monett’s attorney notified St. Paul that a trial would be immediately taking place, not informing St. Paul Fire & Marine that Read the rest of this entry

Pondering intentional flooding: why are we in this mess?

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The random aspect of tornado damage is one thing. But people have put themselves in the paths of floodwaters. Now the Missouri River’s flood is moving downstream. Who knows what it will do to the Mississippi?

But can you blame people for building homes and businesses in the floodplains? We spent billions to control our rivers and create an economy that depends on our controlling them.

Have we lost the ability to manage our environment, or we were just kidding ourselves that our engineering ability (incorporating politically-mandated compromises) would be effective?

I ponder these things in a longish essay: Unnatural disasters: flooding from managed rivers and what to do. Of course, I don’t know what to do. Maybe you have an idea.

Please read and comment.

The Corps of Engineers can only release water, not solve problems

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As a lawyer, I first encountered the economic ruin and heartache from controlled discharge from a Corps’ reservoir about 25 years ago. The Corps had opened the gates at the Keystone reservoir west of Tulsa, filling the entire floodplain from Mannford, through Sand Springs and Tulsa. My client packaged fresh salads in a building on the edge of the floodplain that was not known to have ever flooded.

The Small Business Administration offered disaster loans to businesses, and my client’s only hope for survival was to accept a loan.

Unfortunately, the six-month interruption of my client’s business resulted in a loss of market share and employees. The SBA loan and insurance didn’t cover nearly all the losses. There was no revenue to cover the regular bills due in the weeks after the flood. The business had been marginally profitable, only because it had little debt. The SBA loan required the owner to sign a personal guarantee. The eventual result of the SBA loan was that my client became bankrupt (at age 70), since the business couldn’t generate enough money to service the debt and pay its other expenses.

I could find no legal basis for challenging the Corps’ management of the Keystone dam and the Arkansas River basin. The Corps operates under broad statutory authority that has many competing goals, the least of which seems to be protecting homes and businesses built in floodplains below the dams.

The Corps has no control over rainfall. In responding to rainfall, or lack of it, the Corps must respond to those who have statutory claims on impounded water for drinking, power generation, irrigation, recreation, and maintenance of the depth of water in navigation channels. The Corps is constrained by the design of its dams and the storage capacity of its reservoirs. To meet all its goals, the Corps has only one tool: controlling the rate of release of water.

Even if the Corps didn’t have governmental immunity from liability for many of its actions, persuading a judge or jury that the Corps made bad decisions would be an enormously expensive and difficult task.

The lesson is that the economic benefits and protection provided by federal and state projects are extremely uneven in application. We should make decisions based on our own situations.

If you’re a beneficiary of a specific federal program, you can probably count on whatever protection that offers, but only for now. If we expect federal, state and local governments to protect us from weather, we end up in the situation we’re already in.

Kimberling City’s acceptance of sewer system didn’t negate contractor’s warranty


Kimberling City occupies several ridges and valleys where Missouri Highway 13 crosses the heart of Table Rock Lake. You would have a hard time finding a place where the installation of a sewer system was more difficult and expensive per customer, due to the steep and rocky terrain and the necessity of pumping the wastewater collected in each valley over the hills to eventually reach the treatment plant.

Kimberling City grew from almost nothing to a population of nearly 5,000 since the completion of the dam that created Table Rock Lake in 1959. Permanent residents and vacationers are attracted to Read the rest of this entry

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