Water usage rights

[Guest]

Hello all! I'm a newer member here and have been lurking for some time now. My name is John Bunner and I am a member of the Board for Indiana Smallmouth Conservation. I have taken it upon my self to research Federal and State laws pertaining to water usage rights by the public. Now I'm not familiar with Illinois' laws but here in Indiana unless our NRC (Natural Resources Commission=oversight body for the DNR) has deemed the flow as "navigable" or the flow fits Indiana Code for "navigable" or a court of law has deemed a body "navigable" you must have the riparian land owners permission to wade or otherwise be in contact with his property (ie stream bed), otherwise you are trespassing under Indiana Law.

 

Now through my research I have found that the Public Trust Doctrine as well as the Interstate Commerce Clause, Magna Carta, Northwest Territories Act and a few other resources have ensured the publics right to use all waterways in their state that were susceptible of supporting commerce (canoe travel) when the State became part of the Union. In a nutshell, federal laws support the publics right to use a waterway up to the ordinary high water mark as well as some private property for the purpose of portaging. Indiana law says otherwise.

 

Several of our members report about confrontations with land owners and as such I wish to create an informational brochure informing anglers of their rights to recreate in/on Indiana waterways.

 

I am wondering if any of you have researched this dilemma in your state? Comments or opinions are welcomed.

 

John Bunner

Indiana Smallmouth Conservation

[Scott Ferguson]

John, I assume you've visited the National Rivers website www.nors.org

In Illinois, the navigable rivers definition seems to have been made by the Corps of Engineers. If a river is not on their list, than the rights belong to the deed holders of the property the water runs over.

Right or wrong, any changes to the status quo would have to go through the court system. Who among us has the time or money to go that route?

As suggested by the NORS web site, education may be the best (only?) option we have to increase stream access in our states.

[Tim Smith]

Hi John. Good to see you.

 

This topic pops up on these boards from time to time. I am not a lawyer and I may end up saying some inaccurate things here. Take all of this with a grain of salt. Hopefully those with a better handle on these issues will correct my mess.

 

I think the short answer is that the water rights laws are a bit muddled in Illinois.

 

In Illinois there is a short list of "navigable" waters where floating vessels and anglers have legal access according to every interpretation of the law. I believe it's the Corps of Engineers that establishes that list. Most of those rivers are not especially attractive fishing venues (for smallmouth).

 

Another body of thought defines "navigable" as the ability to "navigate". In this view, a vessel of any kind floating on a stream is legal until you step out of it onto the stream bank or stream bed.

 

Because of the ambiguity in the law, it is my understanding that if you do not obtain permission to float a river, and the landowner can convince the sherrif to arrest you for trespassing, he can. It is also my understanding that you won't necessarily be convicted if you contest your arrest because the law is ambiguous.

 

In reality, I think most people know where they are welcome (or tolerated) and where they are not. It's fairly important to ask permission where you're not sure. Most land owners in Illinois recognize that streams have a pubilc function and they're not especially territorial. There are some rather grim exceptions. Usually the problem properties are clearly marked by "posted" signs (I've also been told those signs have to be posted in order for a trespassing conviction to be upheld, but I don't really trust the guy who told me that).

 

When we were scouting sites when sampling for the state, we always asked permission to sample even though by law we could have worked wherever we deemed it necessary. In almost every case, landowners were polite and even glad to see us. In a few rare cases you would run into trouble. In one case we get permission from one spouse and the other one would try to run us off. Sometimes we'd get nosey neighbors on our case. Oddly, it seemed my worst experiences came from landowners who were obviously wealthy. One guy wanted to charge us to sample his stream. Another one said the DNR never helped him and he wasn't going to help the DNR (this guy was a public official, ironically enough). I guess being a jackass pays off for some people.

 

Again...these are my impressions only. I'm not a lawyer and this is not legal advice.

[Guest]

The situation here in Indiana seems pretty similar to yours there in Illinois. Here it seems that as the urban sprawl continues, so does the frequency of disputes where water usage rights are concerned. I am in a fact finding stage that hopefully will allow me to secure a meeting with legislators to introduce some sort of "Public Easement Right" on Indiana waterways. I know this is an uphill battle and by no means an easy task but I am young and have the rest of my days to champion this dream.

 

Now I'm not advocating the taking away of riparian landowners rights, just solidifying the publics right to have fair use of our State's resources as federal law provides.

 

I know of several mid western states that have provisions such as this and they seem to work well. For example, in Wisconsin all flowing water is held in trust for the citizens of the state but in Arkansas there are only 3 rivers the public has a right to use without fear of trespassing.

 

John

[Jonn Graham]

Tim is exactly right as it pertains to Illinois. I have talked with the DNR attorney and he basically said what Tim said. I think the law should be revised, but I have little "pull" down in springfield. I will start going to Wisconsin more due to their fair stream laws.

[Guest]

Here is a working draft of the brochure I am creating pertaining to water usage rights. It is in a brochure form but may need to be amended for length or I may need to go to a different publication style. Let me know what you think.

 

http://www.jbcustomrods.com/files/ISC_Water_Rights.pdf

 

John

[Tim Smith]

John, great job on the brochure. Having something like that on hand if a misunderstanding arose with a local sherrif or landowner would probably be invaluable.

 

A couple of comments:

 

From a tactical standpoint, you might avoid even mentioning "violence" in the passage near the end. You can say approximately the same thing from the positive...Maybe something like "It is always in your best interest in all interactions with landowners and law enforcement to be polite and respectful...yadda yadda yadda".

 

One of the fears raised by landowners is that when the public has access to streams or railroad right of ways on their land, they are exposed to undesirable elements of society. Using the word "violence" gives them a link back to that point.

 

I have struggled with this access issue as it pertains to the conservation motive. The public has an interest in conserving fisheries and healthy streams. Private land owners, especially farmers, use the land adjacent to streams to make their living. In some respects, those pursuits are in conflict (e.g. leaving buffer strips takes land out of production...by the way with the high corn prices this year, some of those buffers are disappearing here in Illinois).

 

In the case of very small, clearly non-navigable streams (some of our best smallmouth streams here in Central Illinos can be jumped across in places) I have thought that fishing leases might be a way to merge the self interest of farmers and the public need for healthy fisheries and rivers. That ideas seems to be a long way off. Among the farming community representatives I spoke to, there was interest in the idea but there was also a basic distrust of the motives of recreational use of streams and the potential for loss of property "rights".

 

In downstate Illinois (an area very much like Indiana culturally), you would have the full weight of the agricultural community fighting your effort. They want the access decsions firmly in the landowner's hands and our status as anglers there in their control.

 

I'm curious that you identify urban sprawl as something that has made this issue worse. How has that worked?

[Guest]

Tim~

 

Thanks for taking the time to read the brochure. You made some excellent points especially the "violence" reference.

 

I think you hit the nail on the head when it comes to the differences between landowner rights vs. the publics right to enjoy our waterways. Here in Indiana, landowners must obtain a permit from IDEM to draw water from the adjacent rivers/creeks so at least we have some wiggle room with the riparian landowners. This shows that water usage rights aren't tilted in either parties favor. There has been a big push in Indiana to go to no till farming as well as establishing/maintaining a 100' riparian buffer along waterways. Most farm folks that I have talked to are in favor of these practices since MOST farmers see themselves as stewards of the land they work/own. Our SWCD's have a strong grass roots program that outreaches to these farmers with education as well as agricultural resources.

 

I get very concerned when we speak of leasing a waterway, especially when the landowner has control over the lease. The urban sprawl that I mentioned is causing hook and bullet folks to be forced to pay thousands of dollars for the right to hunt/fish land that was once open to most responsible people. There are several land acquisition firms here in central Indiana that gobble up prime hunting land for the sole purpose of making LOTS of money off of the rich folks. This leaves the working man to hunt on State property that is already overcrowded. The closer you get to the Indy Metro area, the more aggressive land owners become to the point of them laying claim to the entire river, water and wildlife included!!

 

The urban sprawl has claimed many miles of riparian buffers for projects such as stream bank beautification, running/jogging paths, more sewage processing plants as well as an antiquated city storm water run off system (that up until a year ago would combine with raw sewage and be dumped into local creeks and rivers with as little as a 1/4" of rain!!). Not to mention the vastness of the concrete and retention ponds that dot the landscape increasing the water volume and flow rates beyond the normal capacity! Add to this the attitude that "I pay property taxes on that thar stream so it's mine!!" and you can see that the Indy area as well as the 9 surrounding counties isn't all that friendly to the environment or anglers.

 

So, if this trend continues, I will be forced to either pool my monetary resources with a few like minded folks to ensure I have some place to hunt/fish in the future or pay the astronomical lease rates (think $500 per acre!!). Don't get me wrong, there are still plenty of places to recreate in our state but in not so many years this may change! This is what drives me to ensure that anglers will always have some sort of access to natural resources that no one should have ownership of.

 

John

[Tim Smith]

I don't want to highjack this tread into a discussion about leases, but I do want to be sure my thoughts in this area are completely clear. I completely agree with your concerns regarding leasing, John. If leases became the standard approach to stream access, fishing would be in big trouble. I would not support leases on any rivers or streams currently considered "navigable" or accessible to the general public.

 

The only place I see leases being beneficial is on very small streams (that would themselves be in big trouble if they were heavily fished). The reality in Illinois is that most of those streams are so impacted by agriculture they support no fisheries and are a burden to the fisheries downstream. The greater hope embedded in stream leases is that when farmers realize they can use leases (again, of very small streams) to increase their income, they will begin to see their channelized stretches of stream as something other than "ditches" for getting rid of excess water.

 

If that shift occurs, there are dozens of headwater streams that have no appreciable fisheries in them that could be restored. In Illinois, this would bring back from the grave hundreds of miles of streams with no present value as fisheries. The benefits of restoring headwater streams extend beyond adding to the total amount of fishable streams. Everything that enters headwater streams ends up traversing the whole length of the stream. Avoiding pollution and siltation there does more to improve the overall condition of the river than at any other point. Headwaters can also be important nursery areas. The net result of converting those "ditches" into "streams" would be a substantial general improvement in fisheries. Google up the research on the effect of fishing reserves on fisheries some time to get a sense of the possibilities there.

 

The dangers with leases that I see are, as you eloquently state, the potential for the loss of existing fisheries, and the potential for landowners to turn their stream reaches into their own private freak shows (i.e. stocking exotics and adding dams that block connection to points downstream).

 

In the meantime, what you're doing with access law is highly commendable and needs to be supported.

 

Prairie Rivers Network is working on water rights laws (I think their larger agenda is to prevent extraction). They might have some ideas about how to proceed. I hope the ISA will get behind your effort as well.

[Kevin S]

Another interesting topic that comes out of private property rights over river usage is disclosure of pollution. I have fished the DuPage river for many years which many club members fish. The DuPage is not on the list of public rivers and is therefore deemed private property with the landowner owning the stream bed. According to the Illinois Department of Public Health there is a fish consumption advisory on the DuPage river because of PCB's and other pollutants. In Illinois, by law if you sell a piece of property you have to sign a disclosure advising of any envionmental conditions including radon and any other pollutants. How many DuPage river property owners are disclosing PCB and thorium contamination on their property? The same people who will try to charge you with trespassing because you are fishing on their private property are the ones who will claim the stream bed is public property when they want to sell the property because the Illinois Department of Public Health deems the DuPage river polluted. Interesting tidbit to think about!