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Missouri water law primer: streams

by Harry Styron, Styron & Shilling, copyright 2009

(for more depth and a more technical discussion of legal aspects of Missouri stream law, see this page.)

What’s a creek to you? It could be a place to fish, a source of drinking water for livestock or people, a good land boundary, a hazard for children, a place to float a canoe, a place to dump, a source of data for scientific research, a scene for a painting or photograph, or an opportunity to wash a sweaty face or cool one’s heels.

Whose creek is it? What can you do with it? Can you picnic or camp on the gravel bar?

If you’re a landowner, you may be justifiably angry about the noise and trash left by visitors and frustrated about your inability to do anything about it. And what if they get hurt on your property? Can they sue you?

The mesh of federal and state agencies involved in the control of Missouri’s streams is bewildering. Understandably, people are confused about the laws relating to streams.

This article does not cover flood insurance, FEMA programs, and building regulations. Water law in states west of Missouri generally follows a different set of legal rules.

Here are a few legal rules that may be helpful regarding creeks in Missouri.

The water in the creek, and the life in it, belongs to the people of the state. State and federal governments have made laws and adopted regulations regarding the rights to take the water and the fish and other animals in it and the rights to put things in it.

The land under the creek belongs to the person named as the owner in the recorded deed.

The landowner controls the right to access the creek from the bank, but any person has a right to move upstream or downstream in the water, according to the Missouri Supreme Court in the 1954 case Elder v. Delcour,  even if the creek is non-navigable.  In some cases, the federal government has obtained an easement to allow recreational users the right to be on the streambanks, such as in the Ozark National Scenic Riverways (parts of the Jacks Fork and Current) and the National Wild and Scenic Rivers system (part of the Eleven Point).

Missouri law provides that a landowner who charges no fee for recreational land use owes no duty of care and has no obligation to warn recreational users of the landowner’s property “with respect to any natural or artificial condition, structure, or personal property thereon.” By providing an access point to a stream under a state-sponsored program, such as granting an easement for the access point to the Missouri Conservation Commission, the landowner is not assuming any liability to the users, under another statute. Nor is a landowner liable to a trespasser who is injured on the landowner’s property if the trespasser is “substantially impaired or under the influence of a controlled substance” unless the landowner’s “willful or wanton conduct” is the cause of the injury, under another statute.

The U. S. Army Corps of Engineers controls modification of the streambeds and banks of almost all flowing streams. Dredging, filling streams or wetlands (with rocks, dirt, concrete, etc.), placement of docks, erection of bridges, and building dams is subject to the regulation of the Corps and EPA, under section 404 of the federal Clean Water Act, which also requires a “section 401″ certification from the Missouri Department of Natural Resources. Erection of dams higher than 35 feet requires construction permits from the Missouri Department of Natural Resources.

The Corps also maintains the navigation channels on the Missouri and Mississippi rivers.

A person who owns the streambank and the streambed (called a “riparian owner”) has the right to take water from the stream for use on the riparian property, such as to fill a stocktank or irrigate crops.

The riparian right to take water is a “correlative right,” which essentially means that the use must be reasonable and not done in such a way as to deprive the rights of other ripiarian owners from exercising their rights. In other words, one riparian owner may not take so much water that other owners can’t take water also. In states west of Missouri, taking water from streams is subject to other legal rules, generally based on the concept of prior appropriation and allocation systems administered by state water resources boards and regional water districts. As the demand for water increases with respect to the supply, the riparian rights system of allocation will become increasingly inadequate.

For some large streams with watersheds in multiple states, state-to-state agreements (often called “compacts”) govern some aspects of the rights to streams.

The federal Clean Water Act generally banned the contamination of streams without permits and authorized the Environmental Protection Agency (EPA) to adopt rules establishing discharge limits for various kinds of pollutants. The administration of the Clean Water Act rules has been delegated in part to agencies in each state. In Missouri, the Missouri Clean Water Commission was established to adopt rules that comply with the EPA standards. The Missouri Department of Natural Resources is a state agency which is given the duty by the Missouri legislature of administering and enforcing the Clean Water Commission’s rules.

The Missouri Department of Natural Resources operates Missouri’s state parks, which include several large springs and nice creeks.

The Missouri Conservation Commission was established when the voters, in 1936, amended the Missouri Constitution. The Conservation Commission adopts rules relating to the taking of fish and game, which are administered and enforced by the Missouri Department of Conservation. The Missouri Constitution also was amended, effective in 1977, to impose a one-eighth cent sales tax to provide funds to the Conservation Commission for its capital needs and administration of its programs, in addition to revenues from the sale of hunting and fishing licenses. This source of funds, exempt from legislative appropriation, has provided many stream access points.

The Missouri Department of Conservation manages the Conservation Commission’s land acquisitions, several nature centers, several small lakes and wildlife areas, and state conservation areas, including forests, prairies and wetlands.

The U. S. Fish and Wildlife Service, which is a part of the Department of Interior, also enforces federal regulations relating to wildlife, such as migratory birds. The Fish and Wildlife Service also operates the Endangered Species and Wetlands Inventory programs. In Missouri, the Fish and Wildlife Service operates the Neosho National Fish Hatchery and manages several wetlands and other sites in Missouri and elsewhere.

The Ozark National Scenic Riverways is a branch of the National Park Service, which is a part of the U. S. Department of the Interior. Portions of the Jacks Fork and the Current rivers are in the Ozark National Scenic Riverways.

A part of the Eleven Point is in the federal National Wild and Scenic Rivers program, which is operated in Missouri by another federal agency, the U. S. Forest Service, which is a part of the Department of Agriculture.

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76 responses »

  1. So therein lies the gray area of ATVs or 4-wheelers…I don’t have anything against them–I actually own three. But they do ride up and down our creek quite regularly. So technically we own the land beneath the water, but the water is navigatible to all Missourians. However, ATVs are technically land vehicles…hence the gray area. Is there any ruling on this? I only have a feeling about this because they disturb the bluegill nesting area that has only recently returned to the creek, along with the few fish that have only recently returned…

    Reply
    • Patty, ATV use in streams isn’t a “gray area” of law. Section 304-013 RSMo prohibits ATV use in streams other than when operated by the landowner. The violation is a misdemeanor and the county prosecutor and state attorney general are authorized to obtain injunctions from a court to bring a stop to this practice.

      Getting a county deputy, a highway patrolman or a Department of Conservation agent to write the ticket may be difficult. Having photographs would help.

  2. Beer?
    Whiskey?
    I know glass bottles are a no-no
    What about coolers? Are they out?

    420? (marijuana?)

    Can a person get arrested for being a drunk passenger in a canoe?

    I suppose that anything illegal on land is illegal on a river.

    My friend wanted me to ask these questions.

    I always thought that a sunburned drunk was punishment enough.

    Reply
    • At this point, it is not illegal for persons who are not minors to possess alcoholic beverages on streams. The Ozark National Scenic Riverways (Jacks Fork and Current) and National Wild and Scenic Rivers (Eleven Point) prohibit glass containers and require that mesh litter bags be carried in every canoe.

      To answer your specific question, it is not a crime, under section 574.075 RSMo, to be a drunk passenger in a canoe, unless the canoe is in a school, church, or courthouse. Many towns have ordinances about public drunkenness that include places other than schools and churches, so it’s wise to sober up before you pass through Noel, Galena, Eminence or Van Buren, especially if you’re going to get in a car and drive.

      There is an exception in section 574.075 regarding courthouses: if the public drunkenness occurs at a law library association meeting held in a courthouse, it is not illegal (I am not making this up). The lawbook lobby must have worked hard for this exception, so that they could more easily sell books at law library association “meetings” to lawyers and judges, who are typically unaccustomed to strong drink.

      Canoe outfitters can make their own rules about the use of their canoes, and I wouldn’t blame them if they did.

      To my knowledge (without research), I believe coolers are still permitted, though they may not be used to store contraband.

      Possession of marijuana is not legal anywhere in the state, under federal and state laws (I realize that today is 4-20, so you’re apparently making some kind of a joke by asking this question: ha ha).

      “Peace disturbance,” as defined by section 574.010 RSMo, encompasses fighting and obstructing pedestrian and vehicular traffic, making loud noises, emitting offensive odors and other antisocial behavior of a type that is often associated with drunkenness, regardless of whether the behavior occurs on a stream or not.

      Each year, the bills are introduced in the Missouri General Assembly to regulate lewd and loutish behavior on streams. As I’ve gotten older, I have come to detest such behavior, though I may have once enjoyed it. I don’t know what is wrong with kids today.

      My brother Emery’s website http://www.riverhillstraveler.com probably has something about proposed legislation.

  3. Thanks, Harry. Excellent, readable summary of recreational stream water law, and how the various government agencies impact water. DNR water law is pretty complex, since the Water Resources associated with Geology and Land Survey deals with measurement and supply issues (the people who keep the Dakotas from keeping the Missouri River and who are called when a pipe breaks, and Maramec Spring turns milk with ammonia; and the Division of Environmental Quality deals with regulation of pollution, and has to work with both Public Health (on potable water supplies for people) and MDC for animals.

    As I understand it, it is still legal for anyone (not just the owner) to cross a creek with an ATV at a designated ford which is used by other vehicles, just not to do so repeatedly for recreational purposes, nor to run the creek or stream longitudinally (for which there is no reasonable reason, anyway). But it is still done…

    The provisions of SB2 -2009, extending Riverways style prohibitions on items taken on or near rivers, have been buried into SB 261, aka the Senate Omnibus Crime bill. At this time, that bill is still undergoing perfection and has been scheduled for informal Senate debate (as of yesterday.) Glass containers (with minor exceptions for medicines which must be kept in glass, like some forms of insulin) already prohibited on all streams of the state (except the Mississippi, Missouri and Osage) and within 50 feet of the water near a beach. I’ve been decanting wine bottles for years into plastic…can guarantee you I wouldn’t do this voluntarily, because we always haul more trash out than most people, and leave none which isn’t organic. It irks me that the beer lobby won that one….
    Only the Riverways currently have a restriction (not prohibition) on excessively sized coolers (like 48-52 cu ft) on the rivers. They will question you about them. For more info on their federal regs, see http://www.nps.gov/ozar/parkmgmt/rowdiness.htm. They also confiscate Mardi Gras and similar beads, because the fish choke on them after they rot from the strings. (I’m interested in this topic anyway, and I’m bird-dogging this for the Traveler, too.)

    But my question has always been: who controls the transient creek rocks? They aren’t part of the land…they migrated from somewhere else and with luck will end up in Louisiana. They aren’t alive, so MDC has no jurisdiction. Both MDC and DNR have some jurisdiction on the water…DNR to ensure that it keeps flowing, and polluters are regulated; MDC because they consider it habitat. The “Stream Team” bunch are a multiagency group, though MDC has done most because it traditionally has had the funding. The Army Corps and DNR both regulate graveling and sand operations…there is a state board which oversees this, sort of like both Army Corps and DNR-Dam Safety divvy up the dam responsibilities, depending on what is being dammed, where and why. I’ve asked park people (you cannot remove an Elephant Rock, but I have yet to see any kid arrested for hauling home a bucket of river chert.)

    I would like very much to be the creek rock czar if the position is open. I have 40 years of experience picking them up. *|:-)

    Reply
    • Jo,
      Thanks for the info about restrictions on cooler size and Mardi Gras beads in the Ozark National Scenic Riverways.

      Section 304-013 prohibits the operation of ATVs on Missouri highways. A highway is any road that is open to the public and maintained by the government. Cities and counties are authorized to sell permits to licensed drivers for ATV use on county roads and city streets. Of course, the number of ATVs makes it unlikely that law enforcement personnel could closely enforce the ATV regulations.

      Your question about ownership of “transient creek rocks” brings several things to mind.

      Creek rocks are transient in a geological sense, because they are the products of erosion and transport. In a legal sense, they are a part of the land and belong to the landowner, at least while stationary. Geological time and legal time both move slowly, but geological time ticks more slowly, unless you’re waiting for the conclusion of a legal procedure that will culminate in an adoption, divorce, inheritance or financial settlement.

      Removal of rocks with equipment, as you have pointed out, falls under Corps of Engineers and DNR regulations. Landowners may remove gravel from streams for use on their riparian property without permits.

      Regarding the habit of persons who like to pick up a few stones from creeks, there is a legal maxim: de minimis non curat lex.

  4. We forgot an agency. The US Geological Survey, Water Resources division, which is tasked with stream measurement and water quality both in drought and flood. Last spring, when major reservoirs were bulging at the seams to contain all the flood water, USGS hydrologists were sitting in the catbird’s seat, at the dams and spillways, telling the Army Corps minute by minute flow measurements and estimates so that the engineers could decide how much strain the dams could take, and how much water could be released downstream safely. Let’s not forget the guys in the life jackets in the bass boats with little impeller sticks crusing around on the Meramec River at 42 ft…about 25′ over flood stage at Eureka….

    Reply
  5. Once a stream is deemed to be navigable, is it forever considered to be navigable? Consider Indian Creek, the stream in question in Elder vs. Delcour. Indian Creek was ruled to be navigable in 1954. For the past 20-30 years, it hasn’t been possible to float down Indian Creek in an inner tube much less a kayak or canoe without having to portage for more than half of the distance (except perhaps immediately following a significant rainfall). There are “holes” along the way where it is possible to swim and float but they are few and far between. However when we contact the local sheriff’s department to complain about people who are swimming and camping/having picnics on the gravel bars, the deputies tell us that because it is a navigable stream, they have the right to use the creek for recreational purposes.

    Reply
    • Becky,
      You bring up a good point. I don’t know that there’s an answer without going to court and asking the judge to determine that conditions have changed since a court had earlier determined that the stream was navigable.

  6. Harry,
    Thanks for the feedback. My earlier post was incorrect in that Indian Creek was part of the McKinney vs Northcutt (1905) case rather than Elder vs Delcour. What type of proof would be required to show that a stream is a private, non-navigable stream?

    Reply
    • Becky,
      On the issue of what is required to show that a stream is private and non-navigable, I don’t think that the issue has come up often enough in appellate opinions that there is a list of elements of proof.

      Just because a stream is not navigable doesn’t mean that it’s not a wetland or in some other classification that would make it exempt from regulation. The history of a stream’s use might be important, as it was in Elder v. Delcour, to prove that it had functioned as a “highway” over time, and therefore it was navigable, regardless of whether boats would float in it.

  7. Harry,
    Thanks again. I can’t imagine that it would be possible any longer to float timber or railroad ties down Indian Creek except immediately following heavy rains. But I’m most certainly not an expert in such matters. Our concern is primarily that we are the riparian land owners at a point where both a road and a railroad bridge cross the creek. Because of that, there are quite a few people who use the car and/or railroad bridge as an access point to come to camp/picnic on the gravel bars or swim/fish. They don’t ask for permission, they leave trash in the creek and on the gravel bars, they fish without a license and keep fish that are too small, they drive ATVs in the creek, etc. Because Indian Creek was used as a “highway” in 1905 and deemed to be a navigable stream, it seems that we don’t have any rights to stop this from happening. The local sheriff’s dept. gives conflicting information which only exacerbates the problem.

    Reply
  8. No ATVs are allowed in streams, but what about horses? None of the previous replies posted addressed whether or not a person may travel up or down rivers by horseback.

    Reply
  9. Does a campground have the right to access a creek by driving through my property?

    Reply
    • John,
      A lawyer can’t answer that question without researching the title history of your property and gathering other information about historic patterns of use of your property for access. You need to talk to a lawyer in your community.

  10. Great topic Harry. But I’m a bit confused. Is it or is it not ok to spend the day relaxing at a creek that runs through Farmer Bob’s back 40? From your post and comments I understand that it’s legal to float down the stream on “public water” but I’m still unclear on the topic of walking on the “private stream bed”.

    I know of a nice big creek within an hour of St. Louis that has some great swimming holes and even greater smallmouth fishing. On our last trip to the creek we got run off by the local farmer who stated that he, “has never allowed fishing in his creek and he never will.” We get to the creek via a gravel county road, park off to the side, and access the creek via a ford. Now, I understand that we can’t park on his land, if that’s what we did, but shouldn’t we be able to shuttle our kayaks to the creek and get picked up downstream? And back to my original question – what about wading the stream? This creek I refer to is plenty big for tubing, kayaks, etc. – I don’t mention the name becasue, well…it really is a very good smallmouth haven!

    Thank you.

    Reply
    • If you don’t cross the farmer’s land to get to the creek, and the creek is floatable, you’re probably okay as a matter of law, even if you’re wading.

      That doesn’t mean that the farmer won’t call the sheriff or take matters into his own hands. Being correct isn’t always smart.

    • Thanks Harry. One more question. What office do I contact, if any, to determine what public land may border this creek? There are roughly 8 creek crossings over a 10 mile span – one being a brand new steel frame bridge with a gravel road leading down to the creek on both sides. Is there any sort of easement around public structures such as these that would allow leagal access to the creek?

      Thank you so much for the information!

    • If you’re in Missouri, the county tax assessor maintains maps that show approximate ownership boundaries. From these maps, usually with aerial photographs, you can see the extent of the county or state ownership of land around the bridges.

  11. Great article, Harry. A lot of long-held questions of mine were answered thoroughly.
    I have another question, though. I park rather often at a creek near my home where a gravel road crosses a culvert. I run crawdad traps in this creek from the rocks by the road because it is little travelled and a darned good crawdad hole. The trouble is, an adjacent landowner who does NOT own the property the creek runs through is constantly harrassing me, telling me he is going to call the law if I don’t leave. I am not doing anything wrong, and have repeatedly told him so, but wondered if I had any legal recourse to stop getting harrassed by this man?

    Reply
    • John, when someone tries to make you leave a place that you have a legal right to be, you really don’t have any practical recourse. The man asking you to leave is free to express his opinion that you shouldn’t be there.

      It’s probably impractical, but you can file a lawsuit against the person, asking the judge to grant an injunction to make the man leave you alone. But it’s probably not worth the time and money.

  12. Elizabeth Cantrell

    Could you please let me know if a landowner who owns property beside the creek (not on both sides) is able to prevent swimmers from getting into the creek?
    The creek in question is crossed by a bridge from which we gain access to the water. I was swimming with my husband and a few friends at a creek in Jane yesterday and a man came by as we were leaving and angrily asked us who had given us permission to swim there.
    We were not being loud or obnoxious, we threw all empty soda cans back into the cooler when we were done with them, and we were not drinking alcohol or using drugs. My husband has been fishing in this spot many times and had never seen this man before. The woods on either side are posted with “No Trespassing” signs but we never even got close to the woods!

    Reply
    • Korbin Hardesty

      Elizabeth,
      The man that is harassing you has no right to do so and as far as legal terms go there is nothing that he can do. However, entering at the bridge and exiting the creek at the bridge is important. Do not cross any fields or woods to get back to the road and there will be no legal issues what so ever. It was just last Sunday I was in Howard county Missouri arrowhead searching with a friend in a semi-navigable creek. When we had gotten back to the bridge we had entered on there was a farmer who claimed to own half-way to the middle of the creek an that his friend “neighbor” owned the other half this obviously was not the case as the corps of engineers own the entirety of the creek. Along with the Landowner was a Howard County sheriff deputy. The Sheriff was very nice and seemed to understand the rules “to an extent” as should a person who enforces law. He explained that even though the landowner was very upset that there was nothing to be done. The deputy continued to explain that we should not return to that spot to access the creek. We agreed and left with no resistance to avoid confrontation with the land owner. Realize though that if the law is involved they can still arrest you and remove you from the area with charges of trespassing. Though the charges will not likely stick, you will still have to deal with all of that which no one wants to deal with.

    • Korbin’s “legal advice” seems to be based on Elder v. DelCour. However, as a lawyer, I wouldn’t give legal advice without a careful investigation of the facts, such as whether the creek that Elizabeth writes about is in Arkansas or Missouri (she mentions being near Jane, a town in Missouri that is nearly on the state line), as well as the historic patterns of use of the creek. I would not rely on anecdotes about what happened in Howard County.

      Thanks for writing, Korbin. And be careful.

  13. I have just purchased some property with what I call a creek in it. It has lost water section and flowing water section and only flows continuously in the spring or heavy run off. What define a Creek, Stream, navagable, semi navagable and how does this effect my ownership? Also this creek run though deep woods until it exits into the river a mile away. Can I expect or must allow people who track up this creek access?
    In summer it runs 5 gal /min or so in my section. Could I use a gallon a minute to fill a stock ponds and let unused excess return?

    Reply
    • Mr. Bonke,
      Thanks for writing, but I do not give legal advice on this blog. If you need legal advice about your situation, you should hire a lawyer in your community.

  14. Lets try this again. In your previous writing you indicated that the land owner does not own the stream but is allowed to use the water for stock ponds, etc. Also there are some restriction on effecting the fish, wild-life etc. I am wondering if in your experience there are any guidelines as to what might constitute taking too much water. Each case is different and I hope answering this does not constitute legal advise. I could use the water but as there is a small population of small fish, I do not wish to damage their environment.
    As for the other issue I am sorry I even brought it up. The creek itself is a mosquito haven and I am more concerned I might loose a goat and not be able to catch it due to the terrain.

    Reply
  15. Harry, Thanks for the answer. Guess I’m stepping into a mine-field and didn’t even know it. Just looking for a little knowledge like everyone else.

    Reply
  16. Harry,
    I had a recent encounter with a land owner and I can not find any information on this problem from anyone, including game wardons, until I found this site. There are still some grey areas I hope you can explain to me. I am an avid trapper and outdoorsman. I recently decided to place a trap line on Lick Creek in Bloomfield, MO, for the reason that a drought this summer has left a lot of creeks around this area unable to be trapped from lack of water, thus no animals to trap. Lick Creek is a state marked ditch at every bridge that goes over it. So on Nov 21 I parked on a state mowed ditch and accessed the land by the bridge that the state maintains and proceeded to set a trap line in the creek bed. I finished my trapping duties within an hour or so and proceeded to return to my truck. When I reached my truck I was approached by a farmer who owns land on both sides of the creek. He threatened me with the law and I told him that I would remove my trap line from the creek right away. The land owner said that I was trespassing, but I never left the water of the creek while setting out the trap line. After removing my trap line I tried to see if I was in the right or the wrong. I honestly did not think that I was trespassing being that I never had this problem before while trapping or swimming in this creek. I can not find anywhere if Lick Creek is deemed navigable, but I do know that it is a natural flowing creek. It is a large creek and with normal rainfall you could canoe or kayak down this creek as well as swim and fish. So what do I need to do or where do I need to look to get answers on whether I can trap legally in this creek or not.

    Reply
    • Austin,
      You’re asking for legal advice about a specific set of circumstances. You need to speak with a lawyer in your community about these circumstances. Local lawyers have a tremendous amount of knowledge about how local judges might look at these circumstances.

      There is no clear point at which a stream becomes non-navigable. Your only assurance of being legal on a creek is to obtain permission of the riparian landowners, whether you need it or not.

  17. Pingback: Are You Trespassing While Fishing in Missouri’s Streams, Creeks and Rivers? « Ozarks Fishin'

  18. I like to arrowhead hunt and i always get into streams at public road bridges but what if there is a fence crossing the creek can i cross the fence legaly

    Reply
  19. Harry — I’ve got question regarding damming existing waterways. Specifically, I would like to know general rules with regard to damming a small wet-weather creek. This is not really a creek but more of a “draw” — it only has water in it when it rains and then just a few inches — however, it does run over another land owner’s property at points (although a dam wouldn’t affect their water use).

    Reply
    • In Missouri, the Department of Natural Resources administers dam safety rules and the Corps of Engineers regulates streambed modification. There is a minimum height requirement before DNR takes jurisidiction over the dam. The site still may require a land disturbance permit from a county or DNR. The Corps of Engineers also will make a determination of whether the stream is large enough for the Corps to be interested. Even though a project does not require government approval, the property owner who allows it to be built is still responsible for damages.

      It’s easy to find people to build dams, because they need to put their bulldozers and dumptrucks to work. They will tell you that you don’t need a permit or an engineer.

      I’m aware of such a dam being built recently that neither DNR or the Corps was interested in. The dam washed out after heavy rain, causing damage downstream. A lot of money was wasted and relationships with neighbors were ruined.

  20. I am a riparian land owner of property that is bisected by a non-navigable perennial creek. It flows into another non-navigable stream which also flows into a non-navigable stream. (I use the Missouri definition of navigable here.)

    Several years ago I constructed a 36 inch tie-wall across the creek between my bridge abutments forming a small pool on the creek. The primary purpose of the tie-wall was protection for my bridge and driveway which were being eroded and frequently damaged by seasonal flooding. Now the Corps of Engineers tells me that they control the creek and that I must remove the tie-wall and obtain a permit for “Dam Construction”.

    I write this as information and to express my concern over growing encroachment by goverment. The confusion over water rights, riparian rights, environmental protestation and eminent domain has created a vacuum of defined authority. Government agencies are quick to fill the vacuum where clear definitions don’t exists. As I read the Clean Water Act guidelines written to local Corps of Engineer managers, they are to assume jurisdiction liberally and agressively.

    Where are the advocates of property owner rights? These are scary times.

    Reply
    • Thanks for writing.

      The United States Supreme Court in recent years has been a strong advocate for property rights and has forced the Corps to scale back its broad definition of wetlands, particularly with the Court’s 2006 decision Rapanos v. United States.

      When federal agency asserts jurisdiction over your home, to be scared is a normal reaction. However, it’s nothing new.

  21. I share a pond in wich I had to run a cable across and hang paneling on to keep cows in. The neighbor kept complaining about the cows getting out and on his property.Come to find out he has put a pipe in the dyke on his side and lowered the water level four feet. Do I have rights to force him to fix the problem he created. He is not useing the water for anything. Thank you for your time

    Reply
    • Darren,
      Thanks for writing.
      I do not give legal advice about specific situations on this blog. Giving legal advice requires confidentiality, examination of deeds and other real estate documents, gathering information about uses of the real estate over time, review of statutes and court decisions, and inspection of the real estate. In addition, giving legal advice should be based on an agreement between the lawyer and client, which includes payment of a fee to the lawyer for the lawyer’s work.

      Please pose your question to a lawyer in your community.

  22. What are the rules about walking on the dry gravel bank of a creek? I have always heard that the public is allowed up to the high water mark whether the water is up at the time or not? Is this true or is the public only allowed actually in the water?

    Reply
    • Emma,
      All I know is what I have posted here and the linked post. In Missouri (I don’t know about the law of other states), for navigable streams, the high water mark is the boundary. Whether a stream is navigable at a particular place can only be determined by a court, and courts have not made decisions on the topic except in a few cases.

  23. I have a similar question to Emma,
    I float rivers primarily, large established rivers, (elk, james, current) and I love camping on the gravel bars. Are there any laws that you know of that would prohibit me from doing so? We always stay on the gravel never wander into woods or fields.

    Reply
    • Nick,
      There aren’t any laws in the form of statutes that would keep you from being on a gravel bar close to a navigable stream. However, there is no clear and practical definition of whether a stream is navigable at any particular point.

  24. denise mundinger wants to know if you can clear and remove logs and limbs on a river due to flooding?

    Reply
    • Denise,
      I don’t have any idea if you’re talking about a small stream on your property or a large stream in the Ozark National Scenic Riverways. Nor do I know whether you are thinking of moving heavy equipment into the water, or simply using a chainsaw and a tractor to break up a logjam or brush pile.

      You need to get legal advice from a lawyer in your community who you can explain your circumstances to.

      If you

  25. I live near a small community in sw mo. near Little Lost Creek. We have a local “cooling off spot” that has been in use for generations directly off the road. It is along a well traveled, paved, major county road, and is accessible through a low water bridge and large bar ditch that annually handles large amounts of run off. There is even a parking spot for swimmers on public property. Recently, a wind storm toppled a large tree across the creek within feet of the swimming hole. Now, someone (presumably a land owner) has posted a “no trespassing, no hunting or fishing, non-navigable” sign on the tree in the middle of the creek. This creek has always been navigable. As a kid my friends and I would fish from the low water bridge to Weela park, near Seneca, about a 3 mile float. In the 40 years that I have lived here, the creek has never run dry, and is usually flowing rather robustly. Is this posted sigh worth the paper it is written on? I can understand the “no hunting” part if a person had to access private property without the owners permission, but It seems that according to everything I have read that the water and gravel bars are accessible to the public for fishing and recreation, as long as access or exit is not through private property. Does the fallen tree make the creek non-navigable? The tree is easy to cross, but is a terrible eyesore and an obstruction to swimming. Whose tree is it anyway? If the owner claims that it is his, wouldn’t he be obstructing a public waterway. Can private citizens remove it or is it the responsibility of the county or landowner? Does it just have to lay across the water until it rots?

    Reply
    • This is one of the first questions about a stream that doesn’t leave me wondering about the location of the stream. My late brother-in-law Doug Caudell loved to dance at Wela Park. He and my sister owned an acreage a couple of miles upstream, which Little Lost Creek ran through.

      While I don’t know how a judge would rule, I be surprised if Little Lost Creek would be considered navigable above Wela Park. I am not aware of any case law defining the right to remove a fallen tree from a stream, so I can’t give you any advice other than to leave it alone because it isn’t yours.

  26. There is a slough off of the Mississippi river in Elsberry, MO called Praire Slough. There is a conservation boat ramp on the slough and conservation land on both sides except just north of the ramp there is a landowner thats property line encompasses the slough. Can that property owner restrict navigation on the slough. I am using the slough strictly for navigation to the northern part of the conservation area. I do not access the area through or touch any land features of the property owner. Here is a link to the conservation area map. http://extra.mdc.mo.gov/documents/area_brochures/7901map.pdf

    Reply
  27. How can I get that determination? Thanks you for your time.

    Reply
  28. Can farmers in missouri who own the property along a creek, allow their cattle to roam freely in the creek beds even if the creek bed always has water and fish life in it?

    Reply
    • I don’t know of any statutes or regulations that restrict riparian owners from allowing their cattle in creeks. Most conservation organizations have tried to encourage cattle raisers from allow their cattle in streams. Two inherent challenges are the expense of constructing and maintaining fencing along streams to keep cattle out and the cost of constructing and maintaining alternate freeze-proof and reliable drinking water sources.

  29. I was wondering about wading the creeks and metal detecting the beds.I have access to a few larger creeks by land owners but i can travel /wade for quite a distance.

    Reply
    • Shawn,
      You haven’t indicated whether you’re in Missouri. If you are in Missouri, you can wade in the streams, but the stuff you pick up doesn’t belong to you. I don’t know of any clear legal rule about it, but I would say the riparian owners have a better claim to ownership than you do.

    • What about metal detecting in streams that pass thru Missouri State Forests?
      Shouldn’t I be able to keep what I find just like fisherman can keep fish that they catch which are owned by the State, as in Elder v. Delcour?

      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.

  30. it’s possible to put a canoe in on a local creek (southeast missouri near jackson) that has an old mill/dam museum controlled by the state. can i put my canoe in there and go up or down stream and fish as long as i stay in the canoe? the water isn’t accessible otherwise due to steep banks.

    Reply
  31. forgot to add to the above, the land above and below the dam is private.

    Reply
  32. My question is about the Osage river. Can I legally be on the gravel bar . There is a landowner that says they own up to the waters edge , even if the river is up or down. Can I be there if I don’t touch the property but come in on corps of engineers?

    Reply
    • Aaron,
      On a navigable stream, the adjacent landowner usually does own to the water’s edge or the top of the high bank, or something near the water. But ownership by the landowner is not the same as excluding the rights of the public, which has a right to travel on navigable streams, regardless of ownership. Unless a court has made a determination about the specific gravel bar that you are referring to, there is no clear legal rule, only the general rule that I just stated, which may or may not be applicable.

  33. The supreme court has ruled that the navigable rivers Belong to the state, and held in trust for the public, to use up to the high water mark for access, for recreation, ,As long as they do not litter,or destroy. Property. Look up Public right’s to access MO. rivers.

    Reply
  34. Rodney Harvey

    It seems that whether or not a stream/river is navigable is questionable. Picking up arrowheads or rocks on a navigable gravel bar should be legal, but on a gravel bar on a un-navigable stream you shouldn’t be allowed to keep an arrowhead or rock since even below the water is the landowners. Is this basicly correct? I look for arrowheads in Clark County, Missouri and have heard that you can walk in a stream if its 30 feet wide, but its sound too small to be considered navigable. Even Fox River is usually to low for boats.

    Reply
  35. I was wondering if you could point me in the direction of the missouri statute that deteremines when a landowner can cross the river. We have accessed the river (more like a small stream maybe 6 inches of water by 2 feet wide) to gain access to the river bank. This is something we have done for 30 + years for picnics, camping, etc. Today conservation agents made me move my vehicle stating that I couldn’t do this. I have always been under the impression that because it was our property it wasn’t a problem. Do you know a link that better describes the laws reguarding this? Thank you so much!

    Reply
  36. Who would I contact to find out about the laws of missouri pertaining to building a ford or stream crossing. Our creek is only a wet weather creek but at the mouth of our driveway it has about 2 to 3 inches of water mostly standing due to recent rain. It really does not flow at all. We have a “bridge” of sorts that brings us out of the water in case of flood but it is very narrow and we are in need of a large truck crossing for pickup of our organic produce. I need to be able to put in a concrete slab over the creek bed crossing beside the bridge making sure the water is able to flow over in wet weather. We have no desire to put in a roadway or culverts etc. We do own the land on either side of this creek up to the road that is then owned by our neighbors who has given us easement for entry. Who would I contact?

    Reply
  37. I own property on both sides of a creek. Is it illegal for me to blow leaves into the creek when I am cleaning up fallen leaves?

    Reply
  38. If I am kayaking and I come upon a small dam, do i have the right to navigate on foot around the dam on private property to continue my travel on the public water highway? Wouldn’t the dam be a restriction to travel? This is regarding the Riverdale dam in the Nixa area.

    Reply
  39. I was wondering about cutting trees that have fallen in the river. A large group of us float on flat creek, and with recent storms there are a few trees that have made the float unsafe, to the best of my knowledge none of the land owners around there care about people floating. Is there any laws against cutting trees in the creek with a chainsaw?

    Reply
  40. Patrick C. Kansoer Sr

    I have a new neighbor who is felling trees and throwing the cut branches into the creek that divides our properties. We are less than 1000 feet from where the creek empties into Lake Taneycomo. Is this a DNR matter, a Corps of Engineers matter or a neighbor dispute that would require private litigation?

    Reply
    • I don’t know of any basis for DNR jurisdiction. If you believe that the felling of trees and their placement is changing the water flow, you could talk to the Corps of Engineers. I don’t know what a basis would be for private litigation, unless you can prove that the activities will damage your property.

  41. Tyson McElhaney

    Is the placement of Geocaches just prohibited in the Ozark National Scenic Riverways NP or is it prohibited on all MO waterways? Who would I obtain permission from?

    Reply
    • The public right to be on floatable streams in Missouri is simply to use the stream for passage. If you want to place something (however small) on somebody’s property, you need the landlowner’s permission.

  42. Hi I was wondering if I could get scrap metal off the river banks Missouri river ,I know that the railroad gets 20 feet on each side but if scrap metal is pass 20 feet can I get it

    Reply
    • Samuel,
      The only safe assumption is that the scrap metal belongs to the owner of the land that the property is on. I realize that many people and organizations pull trash–some of it metal–out of rivers and off riverbanks and are admired for doing so.Maybe you need to present yourself that way to the property owners.

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