Water boundaries can move? Dr. Brian Ballantyne IRWA – No Boundaries Conference June 29, 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

OHWM, Bank, Natural Boundary, High Water Line Water’s Edge

OHWM, Bank, Natural Boundary, High Water Line Water’s Edge

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

Canada (AG) v. CPR (2000) : The BCCA affirmed that the Kitsilano IR was “…enlarged by accretion to about 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 Original Boundary Eroded over 125 years

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, BCSC  Indeed, “there is a certain imprecision, and perhaps imperfection” inherent Andriet v. Strathcona Cty, 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 as a “misconception.”

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?