Water Boundaries can Move

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Water boundaries can
move?
Dr. Brian
Ballantyne
IRWA – No Boundaries
Conference
June 29, 2009 - Calgary
75% of IR have 1+ riparian bound
(Galton technique. Nature. 1907)
Yes, water bounds can, and do,
move
“The question is well settled … that the
person whose land is bounded by …
water, which changes its course
gradually by alluvial formations, shall
still hold by the same boundary …”
New Orleans v. United States (1836), 35 U.S.
486
Mostly, similar
 OHWM, Bank, Natural boundary, and High water
line are defined as the edge of the bed, which is:
“Land covered so long by water as to wrest it from vegetation, or
as to mark a distinct character on the vegetation where it
extends into the water, or on the soil itself”
 Thus, they could be labeled as back-of-beach or
vegetarian boundaries.
In Ontario, however, the definition differs
 Water’s edge is the location of the water on the day
of survey (excluding storm surges and spring
freshets).
 Thus, parcel includes the beach
Water’s Edge
OHWM, Bank,
Natural Boundary,
High Water Line
Water’s Edge
OHWM, Bank,
Natural Boundary,
High Water Line
OHWM in the United States
 Howard v. Ingersoll, 54 US 381 (1851)
“OHWM is found by examining the bed and banks and
ascertaining where the presence and action of the water mark
a distinct character in respect to vegetation as well as the
nature of the soil itself”
This principle (from the Chattahoochee River that was the
boundary between the States of Georgia and Alabama)
resonates in Canada:
- Clark v. City of Edmonton (SCC – 1929)
- Instructions for the survey of Canada Lands
- Provincial legislation
Washington State – Shoreline Management Act
Minnesota – Ordinary High Water Level (OHWL)
Minnesota Statutes, Section 103G.005
North Dakota –
OHWM
Ordinary High Water
Mark Delineation
Guidelines. North
Dakota State Engineer.
Jan 2007
A water boundary is ambulatory if:
 Its change in location is slow, gradual and
imperceptible
 The change is incremental (it happens at the
boundary)
 The cause is either:
- natural forces (water or wind), or
- the inadvertent effect of an artificial structure
(e.g. upstream bridge)
What is accretion and erosion?
 If the water bound moves out, then accretion has
occurred and the parcel increases in area (reliction,
retreat)
 If the water boundary moves in, then erosion has
occurred and the parcel decreases in area
(submergence, encroachment)
Accretion – East shore of Lake Huron
600 m of accretion
over 10 years
Accretion
Canada (AG) v. CPR (2000) : The BCCA affirmed that the Kitsilano IR
was “…enlarged by accretion to about 86.25 acres.”
Accretion
Re Brew Island
(1977) : The BCSC
apportioned
accretion both to
the IR and to an
adjoining (non IR)
island.
Accreted Land
How is accretion apportioned?
 Paul v. Bates (1934)
48 BCR 473 (BCSC)
 Re Brew Island
(1977) 3 WWR 81
(BCSC)
Constraints on extent of
accretion:
 Accretion is limited by the parcels in the
description
 “That part of the NE ¼ lying west of the Red
Deer River;” as the river moved out of the
NE ¼, the parcel only increased to 160 ac.
 “All that part of the section not covered by
the waters of Buffalo Lake;” as the lake
receded, the parcel only increased to 640
ac.
Erosion of some 260 ha
Eroded over
125 years
Original
Boundary
If the criteria are not met
 If water encroaches quickly, then the parcel is
flooded/submerged;
 If water retreats quickly, then the parcel is
separated from the water;
 In both cases, avulsion has occurred; the boundary
is fixed in location at the time of the
encroachment/retreat.
Avulsion over a 15-day period
Regulated watercourses
Water bounds can exist on
watercourses “partially augmented by
the hand of man”
Two questions – purpose & effect of
regulation
Navigation = constant levels, variable
outflow
Flood control & electricity generation =
variable levels, constant outflow
What is the effect of regulation?
 If the waters are raised quickly (by a dam, for
instance) then the parcel becomes submerged and
the water boundary is fixed in location at the time
of alteration.
 If the control structure is removed and the water
body returns to its natural level, then the water
boundary regains its ambulatory nature.
However,
Surveying water bounds is not a simple
task:
There “is some arbitrariness and
opinion involved in deciding exactly
where to determine the natural
boundary to be”
Harris v. Hartwell, 1992 - BCSC
Indeed, “there is a certain imprecision,
and perhaps imperfection” inherent
Andriet v. Strathcona Cty, 2008 - ABCA
ad medium
filum
Ruby Creek
Cautionary tales
 Wilson v. Omaha Indian Tribe (1979), 442
U.S. 657 – Reservation lay in Nebraska, to
the west of the Missouri River (at the
Blackbird Bend);
 Over 120 years (from 1854), the river
moved slowly to the west by 2 miles (some
3 km);
 Supreme Court assumed that the
reservation boundary remained fixed in
location as of 1854;
 Such “prejudging” of the issue was critiqued
1881 – BEATTY’S PLAN
1946 – AERIAL PHOTO
1958 – AERIAL PHOTO
2001 – IKONOS IMAGE
So, eight deadly questions
 Was parcel created with a water bound?
 Has water bound shifted in location?
 Direction – Encroached or retreated?
 Rate – Slow or sudden?
 Regulated – Purpose & effect?
 Does parcel have a water bound now?
 Where is such a bound located?
 Is accretion to be apportioned?
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