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GN STATE Nashvill ate of Tonnes, e od OFFICE OF THE ATTORNEY CENERAL July 2, 1986 86-117, Representative Elbert T. Gill 3003 N, Watkine Memphis, Tennessee 38127 Representative U.A. Moore 7412 Benjestown Road Millington, Tennessee 38053 Dear Representatives Gill and Moore: By letter dated April 29, 1986 you have asked six questions relating to Reelfoot Lake. Your questions are as follow quesTroNs 1. Ef permitted by the Court im Bunch v. Hodel, is TWRA required by law to permit the natural fluctuation of the waters of Roelfoot Lake az set forth in 1986 Tenn. Pub. Acts Ch. 670? Tf the water Levels established by 1986 Penn. Pub, Acts. Ch. 670 are Lower than the actual, natural ordi- nary low water and high water levels, what liability will accrue to the State operation levels? If there is liability, how are the damages measured, and what are the procedures for collection? 4. What is the status of ownership and public easements for waters and property between the ordinary low water and high water levels on bodies of water which are legally and technically navigable? AND ARCHIVES th Ave, North 37243.0312 Representative Gill Representative Moore Page 2 5. Tf waters are artificially held at or below ordinary low water level on navigable streams, do adjacent property owners obtain cights by preseription against the Eesunption of natural fluctuations?’ If so, are these effec~ tive against the State? 6. Do riparian owners of property adjacent to Reelfoot Lake have @ property interest in having the waters rise and fall naturally on their lands? oeIntoxs 1, ‘The Sixth Cireule, in Bunch v. Hodel, 6th Cir, No. 85-8702 (decision filed gune 17, 1966), aff'g U.S. D.C. W.D. Tenns No. 85-1110 (decision filed July 9, 1985), recently upheld the district court's decision that the 1941 lease between the State of Tennessee and the United States Fish and Wildlife Service (USPHS) grants exclusive authority to USFWS to manage the water levels of Reelfoot Lake. The Sixth Circuit has affirmed that TWRA has no authority to manage the water levels of the lake until expiration of the lease in 2016. 2. @¥, 5 oct that, water Levels established by 1986 Tenn. Pub. Acts: C..: 670 may be lower than the natural water Tevel of the Lake prior to the construction of the. spillway Fogulating the level of the water does not Limit the Liabi- Lffy of the state. 3s Any negligence action against the State is governed by Tenn. Code Ann. § 98-307 et sea. 4. It is not possible to make a general statement regarding ‘the ownership of land between the ordinary low water and high water mark on a navigable streas, as ownership 1s dependent on the legal description contained in the deeds of the various private owners, but the use of the land is controlled by the dominant, navigational servitude held by the State. 5. The Fact that the waters of Reelfoot Lake are held in public trust by the State of Tennessee for the citi- zens of Tennessee allows the State to provide for the management of the water levels of the lake. The State has leased those management cights to USPWS in the 1941 lease. ‘Representative Gill Representative Moore Page 3 Adjacent riparian owners continue to have cights to the use of the water, but those sights are subservient to a reaso- rable use by the State in fulfillment of its pablic trust obligations. 6. Riparian owners have a property interest in the use of the waters of Reelfoot Lake, but again, that use is affected by the State's obligations under the pib teust doctrine. ANALYSES 1. | The Sixth Circult Court of Appeals, in Bunch ee Hodel, 6th Cir. Wo. 85-5702 (decision filed June 17, T56), has affirmed the decision of the district court in U.S. D.C. WD. Tenn. No. 85-1110 (decision filed July 9, 1985), which held that the USFWS has exclusive authority £6. manage the water levels of Reelfoot Lake pursuant to the 1941 lease between the State of Tennessee and the USFAS. The Sixth Circuit stated that undec the terms of the Lease, phe State "did not expressly ceserve any rights to manipa- late the lake's water level by means of the dams and spillways." Decision at 7 Section 2(c) of Public Chapter 670 (codified as T.C-A. § 70-5-113(c)) establishes a water level management plan which is contrary to the plan agreed on by the parties to the contract and followed for many years by USFWS. The relevant provisions of Public Chapter 670 are found in Section 2 and read as follows: (b) Notwithetanding the provisions of this section or any law or regulation to the contrary, as first established by the Reelfoot Lake Commission of 1925, it is hereby declared that the natural water Lewals of the navigable stream Reel foot Lake ace az follows: (2) Phe naturel ordinary low water mack is two hundred eighty-two and four-tenths feet (282. 4") mean sea level which is also the top of che twenty (20) Floodgates at the Reel foot Lake spillway Dam; IBRARY AND ARCHIVES venth Ave, North TN 37243-0312 TN STA Representative Gill Representative Moore Page 5 past practice. The court emphatically stated that the federal government cannot abdicate its responsibilities under the lease and the Migratory Bird Conservation Act by calling the drawdown state action. 14. Similarly, raising of the level of the Lake by over one foot, even if mandated by state law, must be preceded by USFWS'S comple thons of an environmental assessment. See Decision at 13. cesentative Gill ventative Moore (2) ane _patacad fall pool aver is (edo hundred. eighty: tncee an Leveh athe rect (203-6") mean sea Levels It is clear that the Sixth Circuit considers the Reelfoot National Wildlife Refuge an ongoing federal project and therefore any "substantial change" in policy triggers the requirements of the National Environmental Policy Act (NEPA). Decision at 13. An environmental assessment would Include documented reasons for any change in the watec level of the lake. An assessment would also include the most feasible way to implement any needed change. This assessment would consider the impact of the implementation of section 2(b) and {c) of Public Chapter 670 on the lake. sme natucal ordinary bigh aact’ ie "tho hanaced elaneye five tert ) mean sea level. Feet (28! cg) wotwithetanding the provisions oe anUaw oe reguuation to the contesey, of any LIM OF Ggprestaulished the water eeere” Ls Quuone phan f0r Reelfoot Lake. Level, pans of neeitoot. take. shall flow The waters rally across the top © free oe rey vetoplag gates oc floodgates twenty (heooe Lake Spuitway Dam “until ae tie reaches en elevation of | tvo Sheachateagney- ences, and shaceenthe fete munered “Adar gea level, Once the Lake E2825. auch natugal folk peck tevel, the ceeds Moy seoplog gates. of floodgal CMON Aeetfoot Lane spillway Dan shall ar te Areas Obring he take back to Es be opened $2 Bool) Level of two) hundr neta eres aga suzceeneha. feat GEC) stant Ee Se vel: in beLnging, the back tote natural full pool level, the ok ot eage ace Fiehway (Radial Water gel toot, Larteay) mey also be used. che last ¢5 years, USFWS. nas operated the spil2esy, gates aa th a way as to maintain the normal pool or oan Ln SUCh Say ae ne evel, which is the ordiaaey low Lake ot 287 tawliubed by the State pursuant £6 Kees Che 28. he 3941 lenge Le a, welts onteest oer the. Laplee ties and any changes, tf, che Typosed by the lease must be ch ‘The Sixth Cireuit's decision in aiiSjgee' that only the USFWS cat bee fake under the eras 2. Implicit within this question is a suggestion that Section 2(c) of Public Chapter 670, which sets the natural Full pool Level of Reelfoot Lake at 283.6! mean eea Level, is lower than the actual, natural ordinary low water and high water levels of the lake. You imply that this fact may have some impact on potential damages actions against the State, We assume this question deals with possible liability of the State to landowners whose lands may be Hlooded if the pool level of the lake is raised pursuant to public Chapter 670. Because the State owns the waters and bed of Reelfoot Lake in trust for the public, the State may take reasonable actions in exercising its navigational servitude which alter the use and deerease the value of riparian pro~ perty without compensation. Bonelli Cattle Co. v. Arizona, 4140.5. 313, 331, 94 8.ct. SIT) 329, 38 L.E0. 20 256 (1973). However, the location of the land in relation to the high water mark is an important factor in determining liabiliey. The title af a riparian owner may extend to the low water mark, but it is absolute ownership only to the high water Bark, See Freeland v. Pennsylvania R. Con, 197 Pa. 529, 47 Ain4s, ‘148 (901), Land Between the Tov and ‘hgh water Birks is subject to the government's exercise of its navigae tional servitude, but if damage is done to land above the high water mack, the State may be liable dn an inverse con demmation proceeding by the injured party. See Goose Creek Bosch vw. Rodel, supta, est} Bunglotire ‘tne water ievels of vee mantpaLare Une wae eys aay votuntariiy dectde to attests 212" Chapter me sguaunt. pan to comply, with Publ te waver Level *a2cT elon would be a engnisicant departure f ui grate mens AND sane n ANE 93d 1289"