I had received a question about Riparian Rights, or more specifically, a series of questions asking about a creek.
If a property line is a creek, is middle of the creek the property line?
If the deed/plat states something to the effect of “thence with the meanders of the creek” or “to the center of the creek” then the answer is yes, the center of the creek is the line. The issue here though might be deciding if the center of the creek is the physical median between the two banks or if it is the center of the channel as defined by the deepest point. I typically choose to use the median line between the banks of the creek. Although, this decision is ultimately up to a court to decide on a per case basis. The hierarchy of evidence places more emphasis on monuments over bearings, distances, acreage. It also grants natural monuments, such as creeks, ridges, etc. a higher standing than manmade monuments, such as iron pins or fence posts. Therefore, barring a catastrophic event, the property line that is delimitated by the creek, moves with the creek through the normal erosion process. Adjustments to a creek’s location through human intervention do not constitute a natural process. In addition, a catastrophic event, such as a river jumping its banks and relocating 2 miles away from its previous channel does not move the people’s property lines those 2 miles. There is no set definition of catastrophic, it is something that, should the situation be contested, would have to be resolved in court.
Who, if anyone, owns the water?
In the State of Tennessee, the State owns the water. In fact, I was told by an agent for the Tennessee Department of Environmental Conservation (TDEC) that every drop of rain that falls in Tennessee is under their purview. In essence, the State claims control over any water that will or might connect to other sources, such as a stream or subterranean aquifers or any such situation. If it is not an isolated pool or pond that is sealed from ground seepage or overflow, it is subject to State review.
Can a property owner fence down the middle of a creek that is their property line?
Here we get into the question of navigability and “blue line” streams. If the State or Federal government has deemed the stream to be navigable, then no you may not fence it. When the term navigable is used in a legal sense, it isn’t necessarily referring to navigable-in-fact as in you can float a barge on it, but that it supports commerce in some form or fashion. This can be anything from selling fish from the stream to (as is the case in Arkansas) excavating gravel from it. Also, if TDEC declares it a “blue line” stream, it is protected and you may not alter it in almost any way without a permit. This would include a fence. You can either contact TDEC or you can determine if your county/city has their own environmental person to establish this determination. Assuming that none of the above situations apply, then yes, you can fence your property line, even down a creek.
Is there a local office that regulates water rights?
No, unfortunately, there isn’t an office in Tennessee that regulates these rights. Most all situations regarding property rights, to include riparian, are dealt with by the courts on a per case basis. Western States, where water shortages abound, do tend to have more specific regulations regarding water and have departments you can contact to assist you.
What if I want to build a pond on my side of the creek?
Assuming that your creek doesn’t fall into the above situations, I don’t know that there are specific regulations preventing you from doing just that. If your property does fall under one of the above mentioned situations, then you would have to file for a permit with the appropriate agency to build or alter the stream bed/flow in any way.
Just a side note:
It is of interest to note that the limit of control extended by any of the aforementioned agencies goes beyond just the water. TDEC also controls wetlands. If your property exhibits plants of an aquatic nature or are those that require saturated soil conditions, you must receive a permit to fill, dredge, or alter these in any way. The State of Tennessee also requires that any construction (excluding agricultural uses) with 1 acre or more of disturbance requires the completions and submission of a Storm Water Pollution Prevention Plan (SWPPP pronounced swip). This SWPPP must be prepared by a Civil Engineer.