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. However, the land under navigable streams (such as the Missouri and Mississippi Rivers, the Osage River, the White River and only a few others) is owned by the government.
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.