Does the Ordinary High Water Mark on a Lake have to be levelPosted by frank-willis on April 19, 2012 at 12:07 am
Does the ordinary high water mark of a natural lake have to be at the same contour for the whole lake?
- 44 Replies
- MemberApril 19, 2012 at 12:22 am
How big is the lake?
I don’t work on many lakes, but I recall reading about variations in elevation, but the abnormality was reserved for large water bodies.
- MemberApril 19, 2012 at 12:22 am
I am afraid of this question. I think that anything I say is going to sound dumb, so I’ll just shut up and listen.
- MemberApril 19, 2012 at 12:27 am
The lake surface must be on a slope to run over the spillway.;-)
- MemberApril 19, 2012 at 12:46 am
You have to be very careful in this situation. Depending on the size of the lake and the source the variation of elevation of the high water mark can definitely, well, vary. As already said, if the water source for the lake starts far to one end and produces flow the elevation can be substantially higher at the source end. Sustained winds will also keep water pushed onto the wind driven side at a noticeable and measurable level. Wind tides are common in my area and can have a big effect on larger bodies of water. This all being said I’m not sure there is necessarily a “survey accurate” high water mark in many if not most situations and is likely open to significant interpretation. I’ve known surveyors, for example, who don’t consider wave action and just hold what “looks right”. In the situation of a lake you would also typically have varying levels due to drought, etc.
- MemberApril 19, 2012 at 12:51 am
19,400 acres. No spillway. Just a natural lake. Huge erosion and scarp up higher on one side than the other due to prevailing winds.
- MemberApril 19, 2012 at 1:18 am
No. OHWM on a lake is not a contour line except under unusual circumstances. I always like the definition by Justice Curtis(Howard v. Ingersoll, 54 U.S. 351 (1852). It is cited many times in later cases and in books such as Simpson’s River and Lake Boundaries.
As to the OHWM Curtis says: “This line is to be found by examining the bed and the banks, and ascertaining where the presence and action of water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as in respect to the nature of the soil itself.”
Frank, I know you are as well versed on this subject as anyone and I wonder why the question is asked. Can you share any details?
- MemberApril 19, 2012 at 1:30 am
I did a survey on a large puddle in a wheat field, created by a neighbor, law suit deal. Pond was about 1000 feet long and less than 100 feet wide with deepest spot was about 1.5 feet, killed a lot of wheat. The north end was about 0.35 feet higher than the south. Did I mention the 30 mph out of the south, all day long.
- MemberApril 19, 2012 at 1:48 am
Jerry, I was told by two attorneys that water seeks its own level and that an ordinary high water mark had to be perfectly level. I was just wondering what other surveyors out there were thinking. My PhD dissertation is on the subject–The Ordinary High Water Marks of Confusing Natural Lakes. You can google it with my name and download from the Louisiana Digital Library. You might totally disagree with it. It is written where it is readable by anyone so that it would be used. In Louisiana, the ordinary high water mark is the ownership line on the border of natural lakes, and in Louisiana there is no right to accretion on lakes. So the ordinary high water mark we use is the one that existed in 1812. I studied Catahoula Lake for almost 10 years on a mission to establish the ordinary high water mark of 1812 using some very serious science, such as: dendrohydrology, pollenology, optically stimulated luminescence, historical records, ancient records, stratigraphy, geology, etc, etc. and I concluded that the surveyors that have been fighting about boundary on that 30,000-acre lake are all chasing the wrong natural monument when they are chasing a single contour. I determined that the right natural monumnent was hidden in the field notes of the GLO. My dissertation is published, and it seems to be solving some really complex problems in Louisiana and nationwide, including Florida.
But when these two lawyers looked at me like I was an idiot, I figured it would be good to post this to see what surveyors thought. I can’t even get the ordinary high water mark of 1997 in my commode when I built my house.
I hope others keep commenting about their position on this. I am not doing it to try to argue or try to attack anyone. This is a serious subject, and I’d love as much input as possible. There are some extremely experienced and creative surveyors that frequent this site, and I’d love to know what they think.
- MemberApril 19, 2012 at 2:04 am
If you consider something the size of the Great Lakes system, my answer would be no. The Great Lakes have their own tidal systems. Therefore, I would guess that one side is going to be higher than the other.
And if you are talking about straight line level, no again. Consider the curvature of the Earth.
That’s what makes sense to me.
- MemberApril 19, 2012 at 2:18 am
Ordinary high water is a visual identification.
One definition from the Corps of Engineers:
“The term ordinary high water mark means that line on the shore established by the fluctuations of water and 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, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.”
- MemberApril 19, 2012 at 2:28 am
Carl, this gets tough when a 0.10 foot variation can shift the boundary by over 600 feet in some places and when the marks on one side of the lake vary from the other side by several feet, and even vary by a foot or so even on same side of the lake.
- MemberApril 19, 2012 at 2:52 am
> Does the ordinary high water mark of a natural lake have to be at the same contour for the whole lake?
The OHWM is a horizontal boundary, having no vertical component. Elevation is irrelevant when defining the OHWM. The edge of vegetation or an escarpment are the two most frequent identifiers of the OHWM, which is a physical demarcation.
Yes, the lake elevation may assist you in determining where to look to find the OHWM, just like a brg/dist can assist you in locating an existent monument. Once discovered, the monument controls. The OHWM is a monument.
- MemberApril 19, 2012 at 2:54 am
> Carl, this gets tough when a 0.10 foot variation can shift the boundary by over 600 feet in some places and when the marks on one side of the lake vary from the other side by several feet, and even vary by a foot or so even on same side of the lake.
Sounds like the Great Salt Lake dynamics. The courts have consistently held that the OHWM is not an elevation, and it’s not the meander line. It’s the physical demarcation.
- MemberApril 19, 2012 at 3:08 am
JB, well said. Remember when I was doing all this stuff down here and you sent me all that stuff on Great Salt Lake? I appreciate it. I was picking on you the other day with Jeff Lucas after I read your POB article.
Anyway, thanks for your input. I need to find a bunch of cases that support this so that lawyers can understand that it ain’t just me down here in Louisiana that knows OHWM is not simply a vertical monument.
- MemberApril 19, 2012 at 4:07 am
Should have named it “Deep Thoughts by Frank Willis”. Nothing confuses a layman quicker than scientific evidence that runs counter to day-to-day common sense.
- MemberApril 19, 2012 at 11:34 am
You would think so, especially here in flat Florida.
But every time I measure nails set by engineers, the elevations vary around the lake.
(NHW & SHW)
- MemberApril 19, 2012 at 11:37 am
Do some of the very large lakes in Florida have water marks and scarps much higher on their prevailing wind leeward sides?
- MemberApril 19, 2012 at 11:42 am
> Do some of the very large lakes in Florida have water marks and scarps much higher on their prevailing wind leeward sides?
I’d have to guess, yes.
I have never witnessed it myself, but I’ve been told about the wind “pushing up the water”.
- MemberApril 19, 2012 at 11:44 am
NY court said determine it visually by the surveyor. Going back in time would be whatever the surveyor then declared it to be. This from a case on Long Island where Corp. of Engineers used high science to come up with difference from visual determination by surveyor. Surveyor position held. I’ll see if I can find the cite later today. It helps to look at the underlying legal theory. Access and use by littoral owner subject to public rights or rights of all private owners in the whole. A practical problem and one of balancing rights, rather than a scientific issue. Of course if there never was any determination in 1812, then maybe the evidence of position can only come from science.
- MemberApril 19, 2012 at 11:46 am
I love it
No more running level loops from the spillway to the site. Just walk down and locate the water mark! Easy as PI.
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