High water mark?

[jayL]

Many of you at the jam heard my story of a brush with the spring ridge club at the little J.

My question is simple:

What defines the "normal high water" mark? Where are you allowed to stand?

The answer I got from the person that was harassing us ranged from "that's for me to know and you to find out", to "anywhere there's grass" (there was grass 10 feet out in the water), to "in the water".

Has anyone gotten clarification on this? The person snarled that the fish commission site held the answers, but I find their search functionality to be lacking.

 

[Fishidiot]

I fished the Espy stretch with 3Wt7X about 3 weeks ago and there were poles placed along the river's edge - we assumed to mark the high water mark. These poles were re-bar about 30" high and had orange safety caps on them. It seemed to me that those poles were probably a fair indication of the HWM and were mostly right at the edge of the water where the grass was mowed down to. We were there on a weekday and maybe that's why we didn't have a run-in with the SRC jerks. We tried to stay right at the water's edge and I usually walked with one foot in the water just to be safe. In the case of this river section, there doesn't appear to be much of a rock or gravel shoreline bed before vegetation starts. If there were, I would think it okay to walk on the rock bed as this seems to me to be within a HWM. Also, the rocks along the shoreline on the west side by the buildings are pretty rough and the water around them is tricky wading. I suspect they have altered the shoreline to discourage wading.

 

[jayL]

Fishidiot,

Thanks for the info.

I can confirm that the signs are no indication, according to the person that was talking to us. My friend was a solid few feet in front of the sign.

 

[Fishidiot]

Jay,
Yeah, I'd say you just ran into an a#@&*-e having a bad day and who was just givin you guys a hard time. Sometimes I suspect when I hear stories like yours that the SRC people are just being obnoxious in order to discourage fishermen.
Don't let it bother yuh.

 

[tomgamber]

found this... Ordinary high water mark, the highest level reached by a body of water that has been maintained for a sufficient period of time to leave evidence on the landscape.

 

[jayL]

tomgamber wrote:
found this... Ordinary high water mark, the highest level reached by a body of water that has been maintained for a sufficient period of time to leave evidence on the landscape.

In that case, my friend was originally in the wrong when approached. He took one step forward, however, and was legal. The guy continued to harass us.

Funny enough- he looked kind of like beaver, just a little skinnier. Has the beav lost weight? If it were him, I will say that his actions weren't very christian for a man that likes to beat the born again drum.

 

[skeeter]

The Ordinary High Water Mark (OHWM) is a term/"mark" used by the ACOE/DEP that dictates jurisdiction on a waterway or open water habitat (pond) as Waters of the US and/or Waters of the State/ Commonwealth under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. The term OHWM refers to “that line on the shore established by the fluctuations of surface water indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, and the presence of litter or debris”.

So essentially every stream you fish has an OHWM and is considered Jurisdictional Waters of the US and/or Waters of the Commonwealth of Pennsylvania regardless because they all flow to Traditionally Navigable Waterways (TNW) for a Relatively Persistent time frame (i.e. perennial-"year around" or seasonal-"3 or more mths"). And trust me you are always finding trout or fish in a perennial waterway.

I wish I had my photos from when I fished the LJ. I would doctor them up to show the OHWM to the best of my ability, but truly if you are walking on cobbles, gravels, point bars, benches, etc or your in the water (flood waters do not count) you are within the OHWM. Also another way is to stay within the edge of water and treeline, trees (over 5") do not grow within the channel, if they do they don't last long

 

[troutbert]

skeeter wrote:
The Ordinary High Water Mark (OHWM) is a term/"mark" used by the ACOE/DEP that dictates jurisdiction on a waterway or open water habitat (pond) as Waters of the US and/or Waters of the State/ Commonwealth under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. The term OHWM refers to “that line on the shore established by the fluctuations of surface water indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, and the presence of litter or debris”.

So essentially every stream you fish has an OHWM and is considered Jurisdictional Waters of the US and/or Waters of the Commonwealth of Pennsylvania regardless because they all flow to Traditionally Navigable Waterways (TNW) for a Relatively Persistent time frame (i.e. perennial-"year around" or seasonal-"3 or more mths"). And trust me you are always finding trout or fish in a perennial waterway.

I wish I had my photos from when I fished the LJ. I would doctor them up to show the OHWM to the best of my ability, but truly if you are walking on cobbles, gravels, point bars, benches, etc or your in the water (flood waters do not count) you are within the OHWM. Also another way is to stay within the edge of water and treeline, trees (over 5") do not grow within the channel, if they do they don't last long

Good stuff here. Some other ways of looking at this are that you need to be within the channel of the river. First take a look around and see if you can identify the relatively flat surface that is the floodplain. Then follow that towards the river, and you will see a break in slope. In other words the flat surface sudden breaks downward towards the water. On an outside bend this is often a cut-bank, which has a very steep obvious drop, often nearly vertical drop. On an inside bend, you often have a point bar, which gradually slopes up from the water to the floodplain. But even there, you can usually identify where the point bar ends and the floodplain begins. Because the slope is going from horizontal (floodplain) to a steeper slope angling down towards the water. And you will see the change in vegetation.

There will be trees on the bank, but only early successional vegetation on the point bar. Meaning grasses, herbaceous (non-woody) plants, and shrubby stuff, such as low willows. Because that area gets periodically scoured and the vegetation gets wiped out and starts over again.

Where the riparian vegetation is wacked and the banks have been highly altered, it's harder to tell. But still if you look around, you can see the flat surface that is the floodplain. You are not allowed on there, it's private property. But then you will see the sharp break in slope. Below that you are inside the channel of the river and if they harass you they are breaking the law.

 

[afishinado]

Troutbert's explaination makes perfect sense to me, but here is the explanation from PFBC site that the Beaver wanted us to read:

"How much of a navigable waterway does the Commonwealth own?

When it comes to navigable waters, Pennsylvania courts have said that the Commonwealth’s ownership extends to the ordinary low water mark, and the adjacent riparian landowner owns above the ordinary high water mark. An easement exists in favor of public between the high and low water marks. That easement includes the right to fish.

The courts have defined the low water mark in this context as the height of water at ordinary stages of low water unaffected by drought and unchanged by artificial means. The best advice is to tell the public to stay as close to the water as possible or if they want to be safe to stay in the water. If they don’t venture on to upland properties, they’ll be OK. The fact that a waterway is deemed navigable does not give the public unfettered access to people's riparian lands nor permission to trespass in order to gain access to a waterway."

 

[skeeter]

Well said TroutBert!!! I was going to go there but didn't want to get long winded, a lot can be said about this subject. To elaborate on what Troutbert said, here is a link few videos for identifying bankfull which is essentially the OHWM but is done with more precision since bankfull is the key component in determining the ordinary water elevation for studying a streams geomorphological form and structure. The bankfull concept is also used toward design and implementing in-stream grade control structures in stream restoration.

 

[troutbert]

An easement exists in favor of public between the high and low water marks. That easement includes the right to fish.

Whether the PFBC's statement is "definitive" or not is hard to say.

But even if it is true, the practical implications are the same for the angler as what I and others have described. As long as you are in the channel, between top of bank one side and top of bank on the other side, you have the right to be there. If you walk out over the top of bank and start walking on the floodplain, you are trespassing.

Simply put, if you are within the river channel, you're good. If you leave the channel and go out onto the floodplain, you're trespassing. Learning to recognize where the channel ends and the floodplain begins is what takes some practice.

 

[osprey]

I've never in all my years been up there , but sometime this summer i think i'm gonna go , wade wet , so my prosthesis is visable and just see what happens , can i wear my side arm?

 

[troutbert]

I was going to mention that this thread has nothing to do with Conservation, but then I remembered how well that went last time...

 

[jayL]

Troutbert,

I did consider that, but in my eyes, access is the most important conservation topic. YMMV.

Resource: a new or reserve supply that can be drawn upon when needed

In the context of fishing:
Take away the access, and our streams are no longer a public resource, thus eliminating any need for a public conservation effort. This is a question pertaining to one of the biggest, most high profile access cases in PA history.

So, in the PA fly fishing conservation forum, the question seems appropriate. A search for "access" in the conservation forum shows that PAFF, in general, including the moderation team, agree (at least in past action).

Where do you suggest I put it?

 

[Maurice]

troutbert wrote:
I was going to mention that this thread has nothing to do with Conservation, but then I remembered how well that went last time...

Not to derail the thread but isn't access a conservation issue? or is it separate?

 

[tomgamber]

I think jay and mo are spot on. Access is a huge conservation issue.

 

[Fishidiot]

Placing this thread under Conservation makes perfect sense to me. I wish that I had taken some photos of the waters edge at Espy. While the definitions of HWM in previous posts like Afish's are solid and official, applying them to this particular stretch is a bit difficult. There doesn't appear to be an obvious break in vegetation or a rocky river bed. Rather, the water line along much of this stretch literally extends to the mowed grass. There were places where, as we were walking along the edge, we had one foor in the water and one on the grass. I can't imagine, however, that if you have at least one foot in the water that you're not below the HWM. There were places where the re-bar was just inches from the water's edge. I did notice in some spots obvious flood debris further up on the bank than where the re-bars were placed. Perhaps we were incorrect to interpret the re-bar as SRC's marking of the HWM but that's what it looked like.
Anyway, fair warning from Jay.

 

[troutbert]

jayL wrote:
Troutbert,

I did consider that, but in my eyes, access is the most important conservation topic. YMMV.

Resource: a new or reserve supply that can be drawn upon when needed

In the context of fishing:
Take away the access, and our streams are no longer a public resource, thus eliminating any need for a public conservation effort. This is a question pertaining to one of the biggest, most high profile access cases in PA history.

So, in the PA fly fishing conservation forum, the question seems appropriate. A search for "access" in the conservation forum shows that PAFF, in general, including the moderation team, agree (at least in past action).

Where do you suggest I put it?

I would have put it in the General forum, which gets more traffic. I think access is important, and conservation is important. But that they are two different things. There's no harm in putting it here, though. It still got some good discussion.

 

[troutbert]

Fishidiot wrote:
Placing this thread under Conservation makes perfect sense to me. I wish that I had taken some photos of the waters edge at Espy. While the definitions of HWM in previous posts like Afish's are solid and official, applying them to this particular stretch is a bit difficult. There doesn't appear to be an obvious break in vegetation or a rocky river bed. Rather, the water line along much of this stretch literally extends to the mowed grass. There were places where, as we were walking along the edge, we had one foor in the water and one on the grass. I can't imagine, however, that if you have at least one foot in the water that you're not below the HWM. There were places where the re-bar was just inches from the water's edge. I did notice in some spots obvious flood debris further up on the bank than where the re-bars were placed. Perhaps we were incorrect to interpret the re-bar as SRC's marking of the HWM but that's what it looked like.
Anyway, fair warning from Jay.

It would be great if someone could post some pictures. I haven't been on that stretch in a long time. From what I remember, it is difficult, because of the vegetation "management" and the man-made alterations to the bank.

Flood debris is not an indicator of mean high water mark. In large floods, the entire floodplain is inundated and flood debris is deposited the whole way across the floodplain, from hillslope to hillslope. But that does not mean you have access to that land. You have access within the river channel. Not to the floodplain.

The best indicator at a place like Espy's is probably the break in slope from the floodplain into the channel.

On some places on some streams, there is an extensive area between the channel boundary (bank) and the actual water's edge.
Which is nice for the angler because you can legally walk on dry ground alongside the water.

But in other places the water extends right to the channel boundary (bank). In which case the angler has to stay in the water to be legal.

 

[afishinado]

Troutbert,

I fished and waded along Espy's last week, and was with Jay and a few others when the confrontation occurred. When you described in an earlier post the vertical break from the stream channel to the edge of the floodplain a light went on. There is a definite change of slope maybe a 45* angle +/- that's grassy and 3-4' in width leading up to the area that flattens out into the floodplain / private property. The high water mark became clear to me after I read your explanation.

Now if we can only get the PFBC & law enforcement to read your post, we would be in business. Bottom line the guy (called "Centerpinner" by the Beaver guys) was below the high water mark even though his feet were on dry ground......IMO.