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An Emerging Riparian Policy in Missouri:
1
Opportunities for Protection, Restoration and Management
Joseph P. Bachant2 and Richard E. Wehnes3
The lack of Missouri law protecting riparian wetlands
has not completely precluded protection. Resource agencies
are seeking better use of existing laws and programs to
obtain improved wetland protection.
Long-term goals are
aimed at developing an informed constituency supportive of
updated state water and wetland law.
law. Water was viewed as a common enemy to be
subdued or exploited at all costa. As a result,
no body of state water law exists today that
recognizes a public interest in such social
amenities as fish and wildlife, and recreation.
INTRODUCTION
Missouri is a river state with better than
56,000 miles of stream and river channels that
drain six broad zoogeographic regions and nineteen
terrestrial subregions. The diversity created by
this variety of watersheds and river basins has
formed four broad aquatic faunal zones which
collectively harbor more than 200 species of fish.
This wealth of floral and faunal resources was
attractive to both t1le native American and white
setter.
RESOURCE STATUS AND CONCERN
A developing state dependent on unreliable
watercourses for transportation was not concerned
with environmental amenities. A state whose river
towns were frequently flooded or whose swamps
"needed" draining for farming, did not ask about
environmental impacts.
As a consequence, an era
of massive federal navigation and flood control
projects was initiated that lasted until the
present day.
At the same time, a multi tude of
private efforts bent on channelizing rivers and
leveeing bottomlands claimed even more riverine
and riparian resources.
Following the period of exploration into the
new world west of the Mississippi, hosts of
settlers used the state's waterways as avenues of
transportation
and
commerce
into
the
rich
floodplains of the Missouri and Mississippi Rivers
and their tributaries. Extensive forest clearing
following closely by agricultural development
typified the early years of statehood. While many
of today' a. citizens are aware of this era of our
history, few recall the guiding federal philosophy
that spurred the development of these new lands.
The "Manifest Destiny" to conquer the wilderness
and make it productive was not a random
occurrence; it was engendered in the best public
interest of the day.
The early federal laissezfaire policy in Missouri evolved into the still
existing attitude that "no government is the best
government."
The negative impacts of these efforts are
only now being gauged.
The grossly altered
Missouri
and
Mississippi
Rivers
have
few
tributaries in the state that are unaltered and
free-flowing (Michaelson, 1977). Channel modification has impacted almost 5, 000 miles of these
tributaries.
As of 1977, 2, 227 miles of these
tributaries were completely lost to the filling
associated with channel straightening.4
With the
loss of channel length came the loss of natural
riparian vegetation.
All too frequently, this
riparian zone became buried by a levee structure.
According to Korte and Fredrickson (1977), 97% of
the riparian and palustrine wetlands in Missouri's
Bootheel have been cleared and drained in this
fashion. The losses of other riparian lands have
not been calculated, but these losses have been
extensive as well.
A natural development of this historic
backdrop is the genesis of Missouri state riparian
1paper presented at The First North American
Riparian
Conference
(University of Arizona,
Tucson 1 April 16-18, 1985).
~Joseph
P.
Bachant
is
Environmental
Coordinator, Missouri Department of Conservation,
Jefferson City, Missouri.
3Richard E. Wehnes is Aquatic Environmental
Coordinator, Missouri Department of Conservation,
Jefferson, City, Missouri.
4Fajen, 0. (n. d.)
Data on file Missouri
Department of Conservation Fish and Wildlife
Research Center, Columbia, Missouri.
443
For the past 10 to 15 years, increasing
numbers of the state's citizens have begun to
question the conventional wisdom of water as a
common enemy. This can be seen in an emerging set
of public values and concepts that is challenging
the need for large federal water impoundments,
navigation projects, and channelization. To date,
this new coalition has been successful in
arresting the completion of several water projects
and has challenged others.
Not only does this
developing public mindset increasingly question
old solutions, it is also more mindful of its
resource heritage and is eager to restore, protect
and manage. The focus of concern to date has been
largely limited
to federal water projects.
Private efforts to alter stream channels and
wetlands have been largely ignored.
Resource
agencies are now beginning the task of better
informing this public of the negative impact
associated with private activities.
If this
effort succeeds in shifting public opinion, the
results will not be known for at least a few more
years.
There have been some early successes,
however.
This past winter, four major Missouri
based environmental groups passed resolutions
seeking tougher riparian protection.
program.
The regulation of such activities as
riparian
clearing,
channelization
and
levee
construction which deleteriously impact riparian
resources depends heavily on applying Avoleyes y.
Alexander outside of Louisiana.
Nationwide Permits
One of the critical issues of Section 404 as
an environmental regulatory effort is how it
applies to headwater streams.
Ecologists are
aware that the cumulative impact to the 38,000+
miles of Missouri headwater streams can greatly
influence riverine and riparian conditions in
downstream receiving waters.
Unfortunately, the
Corps'
Nationwide Permit
for activities in
headwaters has not been effective in controlling
riparian losses.
The Missouri Department of
Natural Resources, the statutory agency with
regulatory powers over water, soil, air and waste
disposal, has denied water quality certification
for several of the Corps' Nationwide Permits,·
including the Headwaters Permit.
It is actively
trying to establish conditions applicable to
Missouri
before
certifying
these
Nationwide
Permits.
By conditioning headwater projects to
require a more thorough review of activities
involving riparian wetlands, channelization, sand
and gravel dredging and water withdrawals,
addi tiona! riparian control is possible in areas
where any proposal was formerly approved with a
rubber stamp.
EXISTING OPPORTUNITIES
How does a state with poor water law protect
riparian areas while a supportive constituency is
forming?
In Missouri, several resource agencies
have
resolved
to
begin
improving
riparian
conditions through utilizing existing authorities,
even if these authorities are not perfect.
The
following review of the available opportunities
include both state and federal programs which may
or may not be unique to Missouri alone.
Section 404 Advantages
What we can do through the 404 program is
modify or condition project proposals, as well as
seek restoration or mitigation of unpermitted
activities. Restoration of riparian corridors are
prime objectives in restoration or mitigation
plans
and
permit
conditions,
but
are not
universally received by the five Corps Districts
serving Missouri.
One action taken by the State
of Missouri that has greatly facilitated uniform
approaches to controlling activities in riparian
and channel areas is the formal adoption of
Channel Modification Guidelines by the Missouri
Department
of
Natural
Resources.
These
guidelines, based in part on the guidelines
adopted by the Soil Conservation Service and the
U.
S.
Fish
and Wildlife
Service,
are a
hierarchical list of modifications.
Applicants
must
demonstrate,
often
through
engineering
techniques, that environmentally benign approaches
will not work in their situation before water
quality certification is granted.
Riparian
conditions are important parameters in these
guidelines and riparian restoration or mitigation
is often a condition for permitting any alteration
to a natural stream channel.
Federal Clean Water Act
The Federal Clean Water Act as amended in
1977 contains a provision for regulating dredge
and fill activities in wetlands adjacent to the
nation's waters. This provision, known as Section
404, provides for a public interest review by the
affected public and appropriate environmental
agencies. Important provisions can lead to denial
of a permit for an activity impacting wetlands,
fish and wildlife or water quality.
Equally
valuable are provisions for project modification,
mitigation
of
impacts
and
restoration
of
unpermitted activities.
Wetland Determination
A serious limitation has been the wetland
definition used by the regula tory agencies.
One
recent
legal effort
in Louisiana directed the
U. S. Army Corps of Engineers and the Environmental Protection Agency to more liberally define
bottomland hardwoods as wetlands; however, this
decision
has
not
been
universally
applied
(Avoleyes y. Alexander).
Implementation of this
decision in Missouri is critical since bottomland
hardwoods constitute most of the·state's wetlands,
and Corps' jurisdiction in these rj.parian areas
would bring modification proposals under a permit
PL-566 Program
A second
federal
activity
of growing
importance to riparian concerns is the Small
Watershed Program (Public Law 83-566) of the USDA
Soil Conservation Service. Recent watershed plans
in Missouri have been placing emphasis on applying
land treatment practices in the headwaters of
444
watersheds rather than such structural approaches
as
large
flood
retarding
impoundments
or
channelization.
Land treatment consists of a
number
of
traditional
soil
and
vegetative
conserving practices. A new practice under study
for potential application in current watershed
plans is the designation of a long-term riparian
corridor.
This concept would require a threeparty agreement involving the local Soil and Water
Conservation District,
the Soil Conservation
Service
and
the
Missouri
Department
of
Conservation. This program, if adopted, would set
aside a maintained riparian corridor of 100 feet
in width on both streambanks within certain
reaches of designated watersheds for a 75 year
period.
The division of responsibility as
presently conceived is as follows:
when conservation practices are encouraged in
watersheds.
Riparian corridors will also be
directly benefited by new cost share measures that
will encourage designation and protection of
riparian areas.
Riparian revegetation will be a
practice eligible for cost sharing through the
Soil and Water Conservation Districts.
A second
new cost share practice for fencing to exclude
livestock will allow designated riparian areas to
revegetate and stabilize.
Riparian Purchase
Traditional land purchase is a time-honored
way of establishing ownership, and hence a "say"
in the management of river" systems.
The public
trust doctrine gives resource management agencies
an ephemeral power of protection on private lands
but
damages from, say, a channelization project
directly or indirectly affecting public holdings
gives an agency a more tangible legal standing,
especially in civil proceedings.
The Missouri
Department of Conservation, since 1976, has had an
earmarked 1/8 percent sales tax as well as
traditional income sources, which has been used
for
expanded
land
acquisition,
development,
management and educational programs.
A direct
benefit to riparian preservation is the land
acquisition program which has added 188,000 acres
in 536 tracts in state ownership within the past
7 1/2 years.
Many of these areas have stream
frontage which can also
now serve as research/
demonstration riparian areas.
In addition, the
Department is examining the potential of obtaining
riparian easements.
This effort would either be
as a direct contract with individual landowners or
through a riparian PL-566 Program described
earlier, or a combination of both.
**Soil and
Water Conservation
District
would obtain land rights through donation
or purchase of easements to be held by
the project sponsors:
enforce easement
restrictions;
maintain
works
of
improvements.
**Soil Conservation Service would provide
all funds for
initial stream channel
debris
removal,
if necessary,
under
environmental
guidelines:
provide 50%
cost sharing for fencing for livestock
exclusion; provide 50% for
streambank
revegetation costs.
**Missouri Department of Conservation would
assist the local district in providing up
to 50% of land rights costs; provide an
operation and maintenance share not to
exceed 50% of costs exclusive of overhead
costs; assist SCS in providing technical
assistance in vegetation management and
implementation of environmental guidelines
for channel and streambank maintenance;
provide habitat planting materials; participate in periodic project inspection.
Interagency Streambank Committee
The recent focus of state and federal
programs listed above has created the need for
technical guidelines for the stabilization of
streambanks and the establishment of riparian
corridors.
Unfortunately, the lack of agency
interest in the past has left us a legacy of no
experience
in dealing with
these
problems.
Meanwhile,
riparian
owners
are
increasingly
experiencing streambank problems,
calling on
inexperienced agencies for advice.
A recent
survey in one west Missouri watershed showed that
over 80% of riparian owners had what they believed
to be a stream problem.
Sixty-five percent had
attempted to correct the problem in the past, and
96% were seeking technical assistance to deal with
the problem, either because they had not tried to
correct their problem or their solution failed.5
While final
agreement has
yet
to
be
accomplished, the work completed to date is
significant in that it marks one instance where
government agencies and landowners agree on an
approach and are willing to demonstrate its
effectiveness.
If successfully implemented, a
long-term effort to reestablish riparian health
will mark a national first using this approach.
Soil and Water Conservation Districts
One hundred eleven of Missouri's .114 counties
each have a local Soil and Water Conservation
District.
The Missouri Department of Natural
Resources, through the Soil and Water Conservation
Program, assists in setting up the districts and
acts as an administrative body, passing cost share
monies
through
the
districts
for
approved
conservation practices.
The Soil and Water
Conservation Districts will soon receive new
monies from a 1/10% sales tax recently approved by
voters for accelerated soil erosion protection
measures.
Riparian and riverine ecosystems will
be improved by reduced sediment in water courses
This need was addressed by the creation of an
interagency committee of state and federal agency
representatives who were charged with developing
standards
and
specifications to be used in
5Turner, W. M. ( 1984).
Missouri Department
of Conservation Memorandum to James P. Fry dated
December 18, 1984.
445
implementing programs of streambank and riparian
restoration and stabilization. A large number of
agencies participated: Soil Conservation Service,
Corps of Engineers, University of Missouri, Forest
Service, Fish and Wildlife Service, Missouri
Department of Conservation and Missouri Department
of Natural
Resources.
Standard techniques
successful in other parts of the nation were
reviewed and adapted to Missouri streams and
soils.
Since work on this committee began,
several members have been involved in an everincreasing demand for assistance in streambank
erosion control and revegetation from private
riparian owners. A new stream management program
(potentially funded through the federal WallopBreaux fund) is now being considered by the
Missouri Department of Conservation which would
incorporate the above specifications for riparian
and
streambank
stabilization
into
riparian
demonstration areas and technical assistance to
landowners.
Adoption of this program is seen as
the best means for improving the state's riverine
fisheries.
registration requirement would have no change of
passage, yet the last General Assembly enacted an
amendment requiring reporting of consumptive water
use or withdrawal.
Critical Area Treatment
A companion program with the USDA Soil
Conservation
Service
is
the
Critical
Area
Treatment effort authorized by PL 74-46.
Here,
federal funds are targeted for those areas in the
country that exhibit extraordinary amounts of soil
erosion.
Since Missouri ranks high ~n this
regard, several such areas have been established
in the state.
The long-term result will be seen
in improved water quality. The impact to riparian
environments could be significant if this program
follows through on identification and implementation of revegetation practices for streambank
erosion control.
Water Conservancy Districts
Currently,
legislation establishing water
conservancy districts is under review as part of a
beginning
effort
to
update
water-oriented
legislation.
Water conservancy districts can
currently be established for the purposes of flood
control, channelization and levee construction.
With slight changes, the ability to significantly
alter river and riparian areas could be brought
under environmental guidelines and the possibility
of establishing such a district for the purposes
of corridor protection and management could be
realized.
This would provide local authorities a
improving stream channel
and
mechanism for
streambank conditions.
The key will be the
installation of strict environmental guidelines
within the enabling statutes.
To date, this committee has had a unifying
effect in deepening the resolve of the same member
agencies to more fully address and enhance
riparian conditions.
Draft guidelines to the
restoration
and
management
of
Missouri's
streambanks, channels and riparian zones are
expected.
Education
Conservation education has been a long-term
Department of Conservation commitment which may,
in part, explain the development of the state's
environmental constituency. A wide variety of I &
E approaches are pursued: magazine and newspaper
articles, speeches, and the like.
The Education
Section of the Missouri Department of Conservation
has developed some riparian education material
that are used in school curricula across the
state.
Children are told to " ••. be wise, don't
channelize," but an educated constituency is
needed now because stream losses are ongoing and
cumulative. One highly successful effort recently
undertaken is known as "A Day on the River."
Here, the interested public can spend a day in a
river/riparian environment with Department experts
learning first-hand about river ecology and the
status of the resource.
Since the new WallopBreaux funds mentioned above earmark up to 10% of
the new federal aid monies for aquatic oriented
education, an expansion of this effort in Missouri
is being considered.
Forest Cropland Law
Another
example
of
providing
better
protection for riparian ecosystems is through the
Missouri Department of Conservation's Forest
Cropland Law. The law, originally passed in 1946
to encourage timber production on marginal lands,
provides that landowners with approved Forest
Cropland have a portion of their prop,erty taxes
paid by the Missouri Department of Conservation.
While in a practical sense it now applies only to
upland forests, an extension to specifically
include riparian forests would provide protection
in a manner similar to that espoused by the Oregon
Riparian Act, i.e. tax relief on dedicated
riparian lands.
Certain types of management
activities could be permitted, such as regulated
timber harvest for fuel wood or saw logs provided
they did not interfere with the biological
functioning
of
the
riparian
community.
Implementing such a law would require amending the
current law to include riparian forests and to
designate acceptable practices therein.
POTENTIAL OPPORTUNITIES
This discussion so far has focused on the
principal
opportunities
available
or
under
development within our state.
There are several
other up and coming incentives that may be worthy
of mention--some may have a fair probability of
enactment; others are longshots.
We list them
because political climates change, as well as the
demands of constituencies. Several years ago, for
instance, we would have told you that a water use
Conservation Easements
Another opportunity yet to be considered is
the use of conservation easements which would
promote long-term commitments of riparian areas to
446
conserving uses. By dedicating riparian corridors
through conservation easements to a holding
agency, income tax advantages accrue to the owner.
This may seem far-fetched, but one group of
Missouri landowners had ~onsidered dedicating
their bottomlands in an attempt to halt a federal
impoundment project. While stop-gap in nature in
this instance, it does point to an opportunity
that could be used in the future.
the
other
hand,
management
assistance
and
educational efforts are drawing the public toward
a better understanding of the issues and imparting
more enlightened concepts and solutions as well as
a
better
appreciation
of
the
state's
riverine/riparian resources.
Since laws are
crystallized public opinion, the long-term goal of
a new body of state law protecting the public
values intrinsic in these resources must start in
the public mind.
In our view, the studied
utilization of existing authorities has initiated
a feedback mechanism which will make riparian
preservation more obtainable in the future.
Farm Foreclosures
An opportunity may be at hand with the
foreclosure of many agricultural properties by the
Farmers Home Administration.
Several Missouri
Agencies are advocating amending these deeds to
provide for conserving use in critical areas,
especially those that are severely eroding or have
riparian areas, before the deeds are offered for
public sale. This opportunity is very remote, but
given the right circumstances, may be implemented.
LITERATURE CITED
Korte, P.S. and Fredrickson, L.A. 1977.
Loss of
Missouri's Lowland
Hardwood
Ecosystem.
Transactions
of North American Wildlife
Conference. 42:31-41
Michaelson, S.M. 1977. Missouri Stream Resources.
Missouri Conservationist 38(3):20-21.
CONCLUSION
ACKNOWLEDGMENTS
The State of Missouri has indeed entered a
riparian crossroads.
The effects of state and
federal regula tory efforts on the one hand are
slowly pushing and nudging individuals and others
bent on modifying
riverine/riparian conditions
toward a more environmentally acceptable norm. On
We thank James P. Fry, Stanley Michaelson,
Earl Pabst and Daniel Witter for critically
reviewing the manuscript
and
for
providing
constructive criticism.
447