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

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

The greatest E. coli risk at Lake of the Ozarks may not be from the water

Undies are in bunches in Jeff City.  Gov. Nixon is embarrassed that his lawyer-laden government has been caught not protecting the public from health risks of E. coli, a family of bacteria whose presence in water is a marker of fecal contamination from human and animal sources. Department of Natural Resources officials, and perhaps the governor, judged that the political risk of stating that the lake water was polluted apparently outweighed the public health risk of water contact, at least until after Memorial Day weekend.

The blame game is in full swing, but nobody is explaining Read the rest of this entry

The Tri-State Mining District continues, producing poultry, not lead and zinc

The Tri-State Mining District, comprising adjacent portions of Kansas, Missouri and Oklahoma, is generally thought to be out of business, other than for its massive legacy of environmental damage, notably the Tar Creek Superfund site, but also involving water and soil contamination in several counties in all three states.

But mining continues with no royalties being paid. The mineral is groundwater, exported not as “pigs” of lead, but as chickens and eggs. A major portion of the groundwater drawn from the Ozark aquifer in several Southwest Missouri counties is used for Read the rest of this entry

Water: the supply is dwindling and we’re polluting what’s left

The availability of clean water in the western Ozarks is becoming acute. The Tri-States Water Coalition and Missouri State University are continuing a public exploration of the supply issues. The New York Times has published the first report of its monumental study of compliance and enforcement of water pollution regulations. Water conservation is a necessary part of the solution, but conservation can do little without changes Read the rest of this entry

More confusion for Missouri boat dock law

Boat docks, like other properties along Missouri’s lakes, are valuable and jealously guarded by those claiming ownership or rights of use.

The law of boat docks is a muddle, perhaps due to the historic lack of clarity as to whether a boat dock is real property (land and the things attached permanently to it) or personal property (anything but real property), which is generally portable.

The Missouri legislature attempted to resolve that issue for the purposes of appraisal and mortgage lending with the enactment of  HB 842, sponsored by Rep. Dennis Wood, whose legislative district encompasses Table Rock Lake.

Signed by Gov. Nixon on July 7, 2009 and effective August 28, 2009, this new law defines “boat dock” as “a structure for loading and unloading boats and connecting real property to water, public or private.” In addition, “a boat dock is real property and has riparian rights,” provided: Read the rest of this entry

Federally-managed Ozarks rivers require protection, even abstinence

How and how much protection to give the Jacks Fork, the Current and the Buffalo rivers is much on the minds of people in and around the Ozarks this summer. Those of us whose memories of these treasures span several decades are sad about the effects of overuse and unwise use.

As the National Park Service (NPS) gathers public comments in formal planning meetings and in writing, those united in loving these rivers have diverse and sometimes incompatible desires for how these rivers and the land along them will be managed. With long stretches of these rivers owned by the federal government and managed by the NPS (which also manages easements along the rivers and regulates outfitters), it’s appropriate that the NPS find out how citizens want these shared resources to be managed.

As individuals, we each have our own ideas about our relationship with the natural world and different comfort levels with sharing, and these ideas change somewhat over time, in response to our experiences, our scientific knowledge, our age-appropriate preferences in recreation, and even our financial situations.

Those who formulate policies have to formulate policies that will probably not make any of the various stakeholder groups happy, but will assure that the members of these groups will keep on using the resources so that federal funding will be maintained.

Ozark National Scenic Riverways General Management Plan

For the Jacks Fork and Current rivers, which are in the Ozark National Scenic Riverways, the NPS has prepared a document called “Preliminary Alternatives” which helpfully sets out four alternatives for the management of these rivers and a zoning system that would protect ecological systems and human experiences by limiting uses (for example, limiting horse access to designated trials and fords and limiting the size of boat motors in particular stretches of the rivers during specified seasons).

I urge you to study the Preliminary Alternatives document carefully before commenting. You can read a summary and the entire Preliminary Alternatives document and make your comment by going to this page.

For the Ozark National Scenic Riverways General Management Plan, the official public comment period remains open until July 31, 2009, and some time after that the NPS will select one of the alternatives, or some combination of them.

Buffalo National River General Management Plan

For the Buffalo River in Arkansas, which is managed by the National Park Service as the Buffalo National River, the planning process is in the early stages. This summer, the NPS has been holding public meetings to gather comments before preparing a document that will probably resemble the Ozark National Scenic Riverways’ Preliminary Alternatives.

For this stage in the planning process, the comment period closes August 31, 2009. The newsletter describing the planning process, including a schedule, can be found here.

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On the Fourth of July, I went floating on a river that is within 50 miles of the largest city in the Ozarks. The river was nice. I saw only two canoes other than the ones in my group. Had we been on a federally-managed river, there would have been a crowd.

With respect to the Jacks Fork, the Current, the Eleven Point, and the Buffalo, the best policy–and the least expensive–might be abstinence or at least restraint.  Instead of floating four times per year, go twice. Send your outfitter the money that you would have spent.

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