Fluid Challenges

September 3, 2002
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A lesson on water boundaries: Part III.

For navigable, non-tidal waters the preponderance of case law is clear that methods employed in determining the location of the Ordinary High Water Line (OHWL) must consist of a physical examination of the water’s action on the bed and banks over long periods of time (see, e.g., Howard v. Ingersoll, 54 U.S. 381, 427 (1851); Kelley’s Creek & Northwestern R.R. Co. v. United States, 100 Ct. C1. 396 (1943)).

Eroded bank where soil has been scarped off.

Location Techniques

Resorting to methods contrary to observable evidence have rarely been acceptable to the court, except in very unusual circumstances. There are perhaps two of these methods that warrant some discussion: statistical averaging of water stages and reliance on officially surveyed meander lines.

Statistical Averaging: While there are cases in which the court has accepted this method in determining the OHWL (see, e.g., Snake River Ranch v. United States, 395 F. Supp. 886 (Wyo. 1975); Motl v. Boyd, 286 S.W. 458 (Tex. 1926)), they are in the minority. In most cases where the court has found this method to be acceptable it has been where there is a delta involved, or an extreme curvilinear configuration to a river where, in either setting, flows tend to fluctuate drastically from heavy runoff during the wet season to a mere trickle during the dry months. Here the alternating inundation and recession of the water’s flow varies considerably over a vast area horizontally, making application of the doctrine of accretion difficult at best.

It is in these types of settings where statistical averaging has sought to bring about greater stability to boundaries, particularly in regions where minimal relief exists and the normal physical indicators are non-existent (e.g., the Great Salt Lake).

Statistical averaging has been applied in certain non-navigable settings, or where navigability has been defined in such a manner as to more acceptably substantiate this method (see, e.g., Motl v. Boyd, supra.). On rare occasions the court has relied on perceived intent of the parties as expressed in a deed, deferring to statistical averaging for determination of a non-navigable boundary (Oak. v. Tex, 206 U.S. 606, 633 (1922)).

One of the problems with statistical averaging is the time period, frequency and reliability of who has compiled the records, and the manner in which they have been analyzed and presented.

Under the observable evidence concept promulgated in Howard v. Ingersoll, supra., the records have in effect been kept by Mother Nature in the form of physical evidence and are ready to be read by anyone with a trained eye. For most circumstances, if statistical averaging is to be useful its role should be that of providing collateral information in support of the more palpable, observable evidence.

Meander Lines: Reliance on officially surveyed (and returned) meander lines has rarely been acceptable to the court. Once again, deviation from the preponderance of case law seems to be driven by unusual circumstances. A case in point is Utah v. United States, 425 U.S. 948 (1976), involving the Great Salt Lake (see also Report of Special Master, Utah L. Rev. 245 (1976)). Here, the absence of normal physical indicators of the water’s action, coupled with extremely flat terrain surrounding the lake, caused the court to rule on the meander line as the most reliable indicator of the boundary. It is interesting that in this particular case both parties stipulated to the OHWL as being the usual legal measure for delimiting (in this case) the state’s sovereignty in the bed from that of the surrounding federal lands.

Looking to The Manual of Surveying Instructions, 1973 (as well as earlier manuals), U.S. Department of Interior, Bureau of Land Management, at Section 3-115:

“Numerous decisions in the United States Supreme Court assert the principle that meander lines are not boundaries defining the area of ownership of lands adjacent to the water. The general rule is that meander lines are run not as boundaries, but to define the sinuosities of the banks of the stream or other body of water, and as a means of ascertaining the quantity of land embraced in the survey; the stream or other body of water, and not the meander line as actually run on the ground, is the boundary (Lane v. United States, 274 Fed. 290 (1921)).”

Unless a clear, unrebuttable intent to make a meander line the boundary is expressed in a deed, the water body or watercourse whose margin is meandered is the true boundary. Knowing the evolution of instructions appearing in the Manuals concerning meander lines, and the methods in many cases to achieve such, it is difficult to conceive of this as an equitable demarcation under most circumstances. Meander lines clearly represent a contradiction to the inherent nature of a water boundary. Thus, as a general rule the meander line has not been viewed by the court as an acceptable substitute for the OHWL, either in concept or in position. Under some circumstances meander lines can serve as one element in the collective suite of evidence for ascertaining the historical movement of a watercourse.

A close look at the far bank reveals a distinct line where vegetation has been arrested at the OHWL.

Locative Evidence

Locative physical evidence used to determine the OHWL generally falls into four broad categories:
  1. Botanical Evidence (vegetation)
  2. Geomorphological Features (scarping and undercutting)
  3. Soil Composition Changes
  4. Other Evidence (unique to a locale)

Before discussing physical evidence indicators it is important to stress two points. First, tests for determining the OHWL are intended to be complementary and collaborative, although not necessarily mandating assignment of equal weight. The prudent surveyor charged with determining the OHWL will investigate the site carefully for all tests practicable, keeping in mind that ordinarily no single test is adequate or defensible before the court. As a further basis for this point, refer to the case of Borough of Ford City v. United States 345 F. 2d 645, 648 (3d Cir. 1965), cert. denied, 382 U.S. 902, wherein the court states, in part, the following:

“The vegetation test is useful where there is no clear, natural line impressed on the bank. If there is a clear line, as shown by erosion, and other easily recognized characteristics such as shelving, change in the character of the soil, destruction of terrestrial vegetation, and litter, it determines the line of ordinary high water …These are not really two separate tests but must, of necessity, complement each other.”

Second, few, if any, land surveyors are sufficiently versed over the full range of disciplines potentially represented by the above categories to assume complete and sole responsibility for investigation and analysis of the findings. To attempt to do so would likely constitute practicing beyond one’s area of expertise, something frowned upon by most boards of registration. This is not to say, however, that the land surveyor should not assume the role of lead discipline in a water boundary solution. Rather, it simply says we must know our limitations and when to call in the specialist(s).

Obtaining elevation of upper limits of mineral staining.

Physical Evidence Indicators

Although any one water boundary determination will rarely require a whole host of disciplines, it is interesting to look at the listing of specialized fields which can, and do, become involved outside of the land surveyor:
  1. Geology
  2. Biology
  3. Botany
  4. Ecology
  5. Potamology
  6. Engineering
  7. Soil Science
  8. Forestry

Botanical Evidence (vegetation)
Botanical evidence is a well-established method for determining location of the OHWL. The vegetation test is qualified by the Curtis opinion (see Howard v. Ingersoll, supra.), as well as later cases, as not requiring an absence of all vegetation but only of terrestrial vegetation. Many forms of plant life have known levels or ranges of water tolerance to which they may be subjected without adverse affects. Plant life is generally classified as upland or terrestrial (i.e., non-water tolerant), or aquatic (i.e., water tolerant). Of course, there are varying levels of tolerance between different species, primarily as to height and duration of submersion. Terrestrial vegetation is characterized by a woody stem or stock, while aquatic species tend to be far more supple and pithy, frequently containing visible moisture when their stems are severed and then compressed.

Identification of aquatic vs. terrestrial species, and water tolerance levels of the latter in particular, is best left to a botanist, forester or other specialist trained to distinguish plant species and their water tolerance characteristics.

Because upland vegetation is killed by water inundation over extended periods, its lower limits of sustained growth provide an indicator of the OHWL. Terrestrial vegetation of course requires water to survive. It tends to seek out a water source down to the limit of its tolerance level. Or, stated another way, in natural settings it will establish itself around a water body or along a watercourse, at a level to that which the OHWL will permit. A close look at the picture on page 43 reveals a distinct line where the waterward progression of terrestrial vegetation has been arrested by the long continued action of water in rising to its annual ordinary high.

Geomorphological Features (scarping and undercutting)
Certain geomorphological features are effective indicators of the position of the OHWL in watercourses and some water bodies. Often, one of the more visible forms of evidence is scarping or “cut banks,” which tend to appear along watercourses. A scarp takes the form of a miniature cliff that is worn into the bank of a river through the undercutting action of the water over time. This is not to be confused with the sudden and destructive erosional damage caused by a flood.

Multiple shelving or benching can occur along the shore of lakes having a gradually sloping shore and banks. Water body environments prone to significant fluctuations in water level will tend to exhibit multiple benching. The more pronounced scarp, in the case of a watercourse, or bench in the case of a water body, is found where the ordinary rise in water over many years has left its mark on the bank, the upper reaches of which is an indicator of the OHWL. See the picture on page 41 for an example of scarping and undercutting along a watercourse.

Soil Composition Changes More applicable to lakes than rivers and streams, change in the composition of soil can be a reliable indicator of the landward limits of the water’s action on the bed and banks. In a river setting, the accumulation of soil composition evidence tends to be seasonably interrupted through fluctuation in volume and velocity. For this reason, the following described procedures will reveal less than conclusive results in many watercourse settings.

With soil composition analysis, there are normally two forms of waterborne deposits investigated. One is the landward extent of peat deposits, which consist of partly decomposed organic materials, forming only in water and tending to oxidize when not submerged. Therefore, the landward extent of peat deposits is one indicator of the OHWL.

The other form of waterborne deposits is that resulting from wave action, where particles or fragments of rock and sand are pulled away from the shore. The wave erosion over time results in a decrease in the soil’s granular size and a tendency for the particles to become more uniform in size. This contrasts with the upland, where wave action has not been consistently present. Once again, the location where this change occurs is a good indicator of the OHWL.

To determine where these soil character changes occur (i.e., elevation), it is best to dig a narrow, shallow (4" to 6" in both dimensions) trench perpendicular to the water line, such that a portion of this trench is above and below the suspected OHWL. Several trenches are necessary, interspersed around the water body, depending on its size, or in the case of a large lake, several trenches along the subject littoral property’s frontage. In the case of a watercourse, if this method is selected (again, not recommended), there should be trenches dug on opposing banks at the same fall line (elevation), and in several increments ascending/descending along as straight a portion of the watercourse as possible. Attempting this in a curve or bend of the river will render conflicting results due to differing water flow velocities from one side to the other.

Samples of soil should be taken from the walls of each trench from 1⁄2" to 2 1⁄2" in depth (one or two from each location, at differing but consistent depths), and at regular intervals along the full length of the trench. The sample interval longitudinally along the trench will vary depending on the gradient of the shore and bank; more frequent for steeper slopes, less so for gradual slopes. Each sample must be numbered or otherwise designated, and the elevation determined at the time the sample is acquired. In the case of a watercourse, the relative horizontal location of all samples must additionally be acquired.

Evaluation of the samples acquired is largely a laboratory exercise requiring specialized equipment and someone trained in soil mechanics or related geotechnical methods and statistical analysis. Again, few land surveyors are adequately equipped and/or trained in this realm. Two forms of information are sought as a result of the laboratory analysis: one, the presence or absence of peat deposits; and two, a relative particle size and uniformity analysis. Both of these evaluations are made in terms of their relative sample elevation, or location and elevation in the case of a watercourse. The process involves drying the samples, inspection under a microscope, passing the dried sediment samples through a series of standard size screens (sieving), and performing a statistical analysis of the results.

Other Evidence (unique to a locale)
Water Marks
Water in most natural settings is fairly hard (i.e., highly mineralized) and, over time tends to leave marks on permanent objects in or adjacent to a water body or watercourse. This is the result of minerals in the water accumulating and actually staining objects in which it comes into contact, up to the limit of the ordinary high water level. Care must be taken not to confuse mineral staining with that of surface coating from silt buildup as a result of flooding. The latter will be higher than the OHWL and can be washed off with a stiff brush and water. The former, however, leaves a permanent stain that is extremely difficult to remove, particularly if on a porous or roughened surface. This form of evidence represents a very distinct and reliable indicator of the historical action of the water over long continued periods, the upper reaches of which indicate the OHWL.

Unique to many western rivers and lakes are large granite boulders firmly embedded in river or lake bottoms, or along the shores. Because most forms of granite tend to be quite light in coloration, evidence of mineral staining accumulating on these large boulders is quite noticeable. The upper reaches of this staining is evidence of the OHWL. See the picture above for an example of this staining. Of course, the same accumulation process occurs on large boulders other than granite, and on other permanent structures such as concrete headwalls, bridge abutments and wing walls, bulkheads, etc.

Accumulation of litter, particularly along lake shores, can be an indicator of the landward reaches of the water’s action on the shore over long continued periods. Examples of litter would include small articles of paper, plastic, aluminum pop tops, cigarette butts, etc., any articles that would float and be susceptible of being washed up on the shore. Surface litter may not be as reliable as items buried in the upper inch or so of the shore’s sand by the water’s action. The upper extent of litter has been accepted by the court as one complementary form of evidence for the OHWL (see Borough of Ford City v. United States, supra.).

Observations by local inhabitants adjacent to a watercourse or water body over a number of years can be helpful in confirming other forms of physical evidence. For example, if a long-time resident, familiar with a pier or other structure at the water’s edge, can relate by some point of reference where the water has risen over many seasons, this can be valuable supporting information. As with any testimony, the land surveyor must exercise care in questioning the individual so as to correctly judge the validity of the parol evidence taken. Ultimately, this testimony must be evaluated as to its relative weight in the bundle of collateral evidence acquired.

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