History and Development of Riparian and Water Rights

When Indiana was first settled, watercourses were frequently used as boundaries or
reference points for boundaries between parcels of land. In the early days there were advantages
to using watercourses as boundaries. They were fixed enough for the needs of the time, easy to
locate-unlike rocks or blazes on a tree, more or less certain, and access to water was important to
early settlers. These factors are reflected in the preference, under Indiana law, given to natural
objects or landmarks over other methods of locating boundaries of real estate parcels where there
is an ambiguity or conflict. See Bowling v. Poole, 756 N.E.2d 983, 989 (Ind. App. 2001), and
Matanich v. American Oil Co., 216 N.E.2d 359, 361 (Ind. App. 1966). Under these
circumstances, a watercourse would be a natural object and so would have precedence as a
boundary descriptor. Shepard v. Nave, 25 N.E. 220, 221 (Ind. 1890).
A watercourse as a boundary may have been exact enough in the late 18th or early 19th
Centuries if the area was sparsely settled, but it simply wont do today. Although a watercourse
may have been sufficiently immobile for the needs of an earlier time, the fact is that watercourses
move. Whether its the boundary between the watercourse itself and the adjacent land that
changes as the water level fluctuates, or the movement of the streambed due to erosion,
accretion, reliction or avulsion, over time watercourses move; sometimes by hundreds of feet.

Watercourses as Boundaries Today

Still, watercourses are sometimes found as boundaries between parcels of real estate. Or,
to put it a bit differently, watercourses, particularly larger streams, rivers and lakes, rarely have a
single owner owning the land on all sides.
So when real estate abuts a watercourse, important questions for the landowner are:
1.

Where is the property line?

2.

Does the property line change if the watercourse moves?

3.

What interests, if any, does the landowner have in the watercourse?

1 Technically, owners of land abutting rivers or streams have riparian rights, while owners of land abutting lakes or
ponds have littoral rights. See Hutner v. Kellogg, 563 N.E.2d 1338, 1339 n.1 (Ind.App. 1990). Many jurisdictions,
however, use the term riparian for both riparian and littoral rights. Id. Except for the occasional pedantic footnote
reciting the foregoing, see Abbs. v. Town of Syracuse, 655 N.E.2d 114, 115 n.1 (Ind.App. 1995), and, especially,
Parkison v. McCue, 831 N.E.2d 118, 128 n.3 (Ind.App. 2005), no Indiana courts appear to have made any
meaningful distinction between the two, or even acknowledged there might be a difference.

4.

What restrictions, if any, are placed on the landowners use of his real estate due

to the proximity of the watercourse?

To begin with, we should define watercourse. A watercourse, is a channel cut through
the turf by the erosion of running water, with well-defined banks and a bottom, and through
which water flows and has flowed immemorially, not necessarily all the time, but ordinarily and
frequently for substantial periods each year. Vandalia R. Co. v. Yeager, 110 N.E. 230, 233
(Ind.App. 1915). The size of the watercourse is immaterial, as is whether or not the water flow is
constant. Trowbridge v. Torabi, 693 N.E.2d 622, 628 (Ind.App. 1998). Note that under this
definition, referring only to flowing water, a lake would not be a watercourse.
To a substantial extent, the landowners rights in the watercourse, and the boundary of his
property, are dependent on whether the watercourse is navigable or non-navigable. The
navigability of a watercourse is a question to be decided by federal law: Whether or not the
waters of a state are navigable presents a question which must be decided under federal law and,
under federal law, the rule is that a river is navigable in law which is navigable in fact. State ex
rel. Indiana Department of Conservation v. Kivett, 95 N.E.2d 145, 148 (Ind. 1950) (citations
omitted).
When a watercourse is navigable, finding the boundary is relatively simple. The owner
of land abutting on a navigable watercourse owns no part of the watercourse bed and the
boundary between the watercourse and the abutting land is also the property line.
Early Indiana cases sometimes referred to the water line itself as the boundary line. But
the dividing line between land and water changes as the water level rises and falls, so a more
definite location for the boundary is sometimes needed. This dividing line has been defined as
the high water mark. See Bowman v. Wathen, 3 F.Cas. 1076, 1079, (D.Ind. 1841), affirmed 42
U.S. 189, 1 How. 189, 11 L.Ed. 97. The state Natural Resources Commission has also, at 312
IAC 21-2-8.5, adopted a definition of ordinary high water mark to properly define the boundary
of navigable waters.
Some early Indiana cases spoke of the abutting landowner owning the riverbank to the
low water mark. See Stinson v. Butler, 4 Blackford 285 (Ind. 1837). In every case found by the
author that used the low water mark, the navigable watercourse was the Ohio River. See Irvin v.
Crammond, 108 N.E.2d 539, 541 (Ind.App. 1915) and Martin v. City of Evansville, 32 Ind. 85

(Ind. 1869). Due to the age of these cases and the fact that the watercourse in all was the Ohio
River, it seems likely that, one way or another, the result and holding was dependent on the fact
that the boundary between the states of Indiana and Kentucky is the low water mark of the Ohio
River in 1792 when Kentucky became a state.2
The basis for the distinction between navigable and non-navigable waters is the means by
which Indiana took title to such navigable waters. The Indiana Supreme Court, in State ex rel.
Indiana Department of Conservation v. Kivett, 95 N.E.2d 145, 148 (Ind. 1950), explained:
Indiana, by virtue of the Ordinance of 1787, acquired title to the beds of the navigable waters of
the State when Indiana, in fact became a State and took what rights the Northwest Territory had
in said area. The interest given to the Northwest Territory, as contained in the Ordinance of
1797, was in, the navigable waters leading into the Mississippi and St. Lawrence, and the
carrying places between the same, shall be common highways, and forever free, as well to the
inhabitants of the said territory, as to the citizens of the United States, and those of any other
States that may be admitted into the confederacy, without any tax, impost, or duty therefore.
Constitutions Volume, p. 814, Northwest Territorial Government, art. 4, Burns Indiana Statutes
Annotated, 1997 Replacement Ed.
So, if a watercourse was navigable as a highway for commerce when Indiana entered the
Union in 1816, then the watercourse, by law, is a navigable watercourse and its bed, to the high
water mark, belongs to the State. Kivitt, 95 N.E.2d at 151-52. In determining that navigability, it
is not the actual use that was made of the watercourse in 1816, but the capability of such use at
the time. Id. at 150. The Indiana Natural Resources Commission has prepared a list of navigable
watercourses in Indiana, based on previous determinations of navigability and other research.
Although such a list cannot be the final word on the subject, it can be a useful tool, and a copy is
attached as an appendix to these materials.
Early cases sometimes referred to waters, rather than watercourses. The law of
navigability for lakes, which mostly developed later, seems to follow the same general rule to
determine navigability. See Sanders v. De Rose, 191 N.E. 331, 332 (Ind. 1934) (inland
freshwater lake with inlet and outlet but not connected with any public waters of state was nonnavigable). Under the early requirement that navigable waters are those capable of use in
2 The establishment of the Indiana-Kentucky border as the low water mark on the north bank of the Ohio River is
now included in a compact between the states, found at IC 1-3-1.

waterborne commerce it might seem that Indiana would have few navigable lakes other than
Lake Michigan, but such would not be the case. Indiana has several small lakes that discharge
into navigable watercourses that then discharge into Lake Michigan, into the Ohio River, or cross
the state boundary into Ohio, Illinois or Michigan; such a border crossing, however brief, would
make the lake navigable in interstate commerce. To the extent that the same was true in 1816,
these would fit the definition of navigable lake.
Rather than discussing the navigability of lakes, recently Indiana courts have used other
criteria to determine navigability. So, in Carnahan v. Moriah Property Owners Assn, Inc. 716
N.E.2d 437, 441 (Ind. 1999), the Supreme Court held that: A non[-]navigable lake is one
enclosed and bordered by riparian landowners. (citations omitted). Note that no mention is
made of navigability, let alone that navigability should be determined with reference to 1816.
Still, the definition can be related to the question of commercial navigation-a lake that is
completely enclosed and bordered by landowners, and entirely within the state of Indiana, is one
without an outlet, and, therefore, one that cannot be part of a commercial navigation network.
Although this definition should still include a reference to the lakes condition is 1816, it could
serve as a workable equivalent of the older definition of a non-navigable lake.
Beginning in 1984, however, the Indiana Court of Appeals has rewritten Indianas law
regarding the abutting landowners interests in non-navigable lakes through importing out-ofstate law without regard to different circumstances that might have been the basis of that law. In
Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984), the Court was called on to determine how to
extend the onshore boundaries between two parcels of land into Lake Nyona to resolve a dispute
over the location of landowners piers.
The Court first acknowledged that Lake Nyona was an enclosed lake bordered by various
riparian lot owners and, therefore, was not navigable. Id. at 75, citing Stoner v. Rice, 22 N.E.
968, 969 (Ind. 1889). The Court went on to say that: In the early Court decisions,
determinations of riparian rights depended to a great extent on whether the lake was navigable or
non-navigable. Id. Then the Court said that it was unnecessary to determine whether Lake
Nyona was navigable, because of Indianas legislative scheme regarding public use of freshwater
lakes. Id. In subsequent cases, Zapffe v. Srbeny, 587 N.E.2d 177, 180 (Ind.App. 1992) and

Parkison v. McCue, 831 N.E.2d 118, the Court of Appeals continued to hold that whether or not a
lake was navigable was unnecessary to determine the rights of abutting owners.

B.

Riparian Rights
Generally the owner of any property abutting on a body of water has rights to the use of

that water that are called riparian rights3 in the water. See Bowman v. Wathen, 3 F.Cas. 1076,
1078 (D.Ind. 1841). That is, the owner of the land has the right to use the abutting water so long
as he does not interfere with the interests of the public, if the body of water is navigable, or with
the interests of the other riparian owners.
With respect to land abutting on non-navigable bodies of water, the right may be incident
to the adjacent landowners ownership of the bed of the water body. But owners of land abutting
navigable watercourses, in which the landowner has no ownership of the river or streambed, also
have some riparian rights in the watercourse. See Bissell Chilled Plow Works v. South Bend
Manufacturing Co., 111 N.E. 932, 938 (Ind.App. 1916).
Such riparian rights include the right to use the water for manufacturing, domestic and
agricultural purposes. Id. and Muncie Pulp Co. v. Koontz, 70 N.E. 999, 1000 (Ind. App. 1904).
In exercising his riparian rights on a navigable watercourse, the owner has the obligation not to
interfere with navigation. Bissell, 111 N.E. at 938. The riparian owner also has an obligation,
generally running to downstream owners, to not: diminish the water flow unreasonably, Bump v.
Sellers, 102 N.E. 875, 877 (Ind. App. 1913); obstruct the watercourse, Gasway v. Lalen, 526
N.E.2d 1199, 1201 (Ind.App. 1988); or pollute the water, Muncie Pulp, 70 N.E. at 1000.
In essence, it may be said that a riparian owner is limited to a reasonable use of his
rights as against the other riparian owners and the public. Muncie Pulp, 70 N.E. at 1000.
Remedies available to a riparian owner for breach of another riparian owners duty to him
include damages, Gasway, 526 N.E.2d at 1202-03, and injunctive relief, Bump, 102 N.E. at 877.
In a suit for damages, it will be up to the jury to determine whether a specific use is reasonable.
Muncie Pulp 70 N.E. at 1000.
3 Technically, owners of land abutting rivers or streams have riparian rights, while owners of land abutting lakes or
ponds have littoral rights. See Hutner v. Kellogg, 563 N.E.2d 1338, 1339 n.1 (Ind.App. 1990). Many jurisdictions,
however, use the term riparian for both riparian and littoral rights. Id. Except for the occasional pedantic footnote
reciting the foregoing, see Abbs. v. Town of Syracuse, 655 N.E.2d 114, 115 n.1 (Ind.App. 1995), and, especially,
Parkison v. McCue, 831 N.E.2d 118, 128 n.3 (Ind.App. 2005), no Indiana courts appear to have made any
meaningful distinction between the two, or even recognized there might be a difference.

For a time Indianas courts applied the same general law regarding an abutting
landowners interest in the waters and bed of a non-navigable lake as they did regarding the
abutting landowners interest in the water and bed of a non-navigable watercourse. So, in Patton
Park, Inc. v. Pollick, 55 N.E.2d 328, 331 (Ind.App. 1944), the Court held:
It is well established that the owner of lands upon which there is located a
non[-]navigable stream or lake, owns the surface of the waters thereon, and has the right
to control the surface thereof, and the public has no right of fishery or to go upon such
waters for any purpose without a license from the owner.
(citations omitted). See also Sanders v. De Rose, 191 N.E. 331, 333 (Ind. 1934). In 1999, the
Indiana Supreme Court, quoting Sanders, 191 N.E. at 333, gave the common law rule as it
applied to inland, non-navigable lakes: [E]ach owner has the right to the free and unmolested
use and control of his portion of the lake bed and water thereon for boating and fishing.
Carnahan v. Moriah Property Owners Assn, Inc. 716 N.E.2d 437, 441 (Ind. 1999).
As was noted above, however, in 1984 the Indiana Court of Appeals knocked over 100
years of law into a cocked hat. Despite the foregoing, in Bath v. Courts, 459 N.E.2d 72, 75 (Ind.
1984), the Court held that the determination of whether Lake Nyona was navigable or not was
unnecessary. The Court held that the riparian owners rights to use the bed and waters of the lake
was limited by the rights of the public and other lake owners. By its holding in Bath, the Court
of Appeals changed the riparian rights abutting landowners held in non-navigable lakes.
Eight years later, the Court of Appeals, based on its prior opinion in Bath, addressed the
issue of how far a riparian owners rights extended into a lake. The Court held: One point is
well-settled and acknowledged by the parties: the boundaries of riparian property do not extend
to the middle of the lake. Zapffe v. Srbeny, 587 N.E.2d 177, 180 (Ind.App. 1992).4 Again the
Court gave no consideration to whether the lake was navigable or not. Finally, apparently based
on cases from New Hampshire and Washington State, the Court created a reasonableness test, to
accommodate the diverse characteristics of Indianas numerous freshwater lakes. 587 N.E.2d at
181. Under the Courts holding, the riparian owners, who under earlier law had owned the bed

4 Acknowledged by the parties it may have been, well-settled it was not. The Court in Zapffe cited the Supreme
Courts opinion in Stoner v. Rice, 22 N.E. 968, 969 (Ind. 1889), as authority for this remarkable statement. The
Court of Appeals badly misread Stoner. In Stoner, the Court, in essence, simply held that the abutting owner whose
interest was limited in his deed to part of a specific quarter section of land had no interest in the lakebed beyond his
described quarter section.

of the lake and could use the bed and the water above it, were now limited to the use of their
rights only within a reasonable distance from shore.
More recently, the Court of Appeals, perhaps through error and relying on Michigan case
law this time, appears to have imposed further limitations on riparian rights. In Parkison v.
McCue, 831 N.E.2d 118 (Ind.App. 2005) the Court attempted to write a generally comprehensive
list of riparian rights. The Court, again, appears to have disregarded the difference between
navigable and non-navigable waters:
Generally, a property owner whose property abuts a lake, river, or stream possess certain
riparian rights associated with ownership of such a property. The rights associated with
riparian ownership generally include: (1) the right of access to navigable water; (2) the
right to build a pier out to the line of navigability5; (3) the right to accretions; and (4) the
right to a reasonable use of the water for general purposes such as boating, domestic use,
etc.
831 N.E.2d at 128 (citation omitted). Although the case involved a lake, the language of the
Courts opinion encompasses not only owners of riparian rights, but also the owners of riparian
rights on watercourses. From the opinion it is unclear whether the Court intended to limit the
rights of landowners in abutting non-navigable watercourses, or whether they simply didnt
realize that its statement was fundamentally at odds with earlier law.
In any event, after the Courts opinions in Bath and Zapffe, the discussion of the owners
interests in the lake and regulation or restriction of those rights has tended to turn on whether the
lake is a private lake or a public freshwater lake rather whether the lake is navigable or nonnavigable. See Indiana Department of Natural Resources v. Town of Syracuse, 686 N.E.2d 410,
411 (Ind.App. 1997).
With the foregoing in mind it seems appropriate here to include a brief discussion of the
statutory law regarding public freshwater lakes. Pursuant to IC 14-26-2-3(a), a public freshwater
lake is, a lake that has been used by the public with the acquiescence of a riparian owner. Lake
Michigan, lakes in some cities and private lakes created by or used in surface coal mining are
5 Line of navigability appears to be a recognized concept in Wisconsin and Michigan, based on the development
of statutory and case law in those states. Indiana apparently imported the Wisconsin concept through the Courts
opinion in Bath v. Courts, 459 N.E.2d 72, 73 (Ind.App. 1984) when it relied on the Wisconsin case, Nosek v. Stryker,
309 N.W.2d 868 (Wis. 1981) and the Michigan concept through the Courts opinion in Parkison, 831 N.E.2d at 128
when it directly relied on the Michigan case, Tennant v. Recreation Development Corp., 249 N.W.2d 348
(Mich.App. 1976). It would be more comforting if the Court had discussed the basis for line of navigability in
Michigan and Wisconsin law, and considered whether or not Indiana law was sufficiently similar for it to also adopt
the concept.

excluded from this provision. IC 14-26-2-3(b). Once a lake becomes a public freshwater lake,
then the public has vested interested in the lake, the state has full power and control over the
lake, and the former riparian owners no longer have any exclusive rights in the lake. IC 14-26-25.
Occasionally the question also arises as to where within a body of water the boundary
between two abutting parcels lies. Where the body of water is navigable, the properties
boundaries end at the high water mark, but where the body of water is non-navigable the
boundaries extend into the water. If the water in question is a narrow watercourse, the question
is not very important. But where the body of water is a wider watercourse or a lake, problems
can arise. See State v. Milk, 11 F. 389, 395 (D.Ind. 1882).
For watercourses, the two principal methods used to extend the land boundaries into nonnavigable waters are to: 1) simply extend the land boundary on exactly the same course, or 2)
draw a line into the water perpendicular to the shore from the intersection of the land boundary
with the shore. It becomes even more complicated when the boundaries to be extended are those
of the properties abutting a concave or convex watercourse or a roughly circular lake.
One concern of the courts is such cases is that the divisions be equitable. A simple
extension of the shore boundaries where the shore line is not roughly straight would be that those
landowners on the acute angle side of a boundary line drawn at anything other than a
perpendicular to the shore would have their riparian interests cut off by the intersecting boundary
lines of their neighbors. Indiana Courts have recognized the problem inherent in apportioning
land amongst riparian owners of a non-navigable lake more than once. See Sanders v. De Rose,
191N.E. 331, 333 (Ind. 1934), Stoner v. Rice, 22 N.E. 968, 969 (Ind. 1889), Bath v. Courts, 459
N.E.2d 72, 75 (Ind. 1984), and Zapffe v. Srbeny, 587 N.E.2d 177, 180 (Ind.App. 1992). But it
was only in Bath and Zapffe that the Court actually adopted a rule for extending shore boundaries
and apportioning riparian interests in a lakebed.
In Bath, the Court held that it was equitable and practical, on the facts of the case, to,
follow the Wisconsin method of extending into the water the onshore boundaries which meet
the water at a right angle. 459 N.E.2d at 75. In Zapffe, the Court endorsed the Bath Courts use
of a boundary line drawn perpendicular to the shore, but then held that the boundary line, in
effect, extended only a reasonable distance into the lake. 587 N.E.2d 180-81. The method of

apportionment announced by the Court in Bath and endorsed in Zapffe will apply in most cases
now due to the Courts limitation on the extension of those boundary lines to a reasonable
distance. With this Court-created limitation on the extension of riparian owners boundary lines,
and property rights, into non-navigable lakes, the issue of the apportionment of the owners
interests in the lake and its bed have become significantly less important.

C.

Flood Plains
To prevent and limit damage from future floods, the Indiana General Assembly has

empowered the Indiana Natural Resources Commission (NRC), working with the Indiana
Department of Natural Resources (DNR), to prepare and implement plans for flood control in
Indiana. IC 14-28-1-1 and 312 IAC 10-1-2(b). In brief, construction of structures and other
work within a flood way is restricted or prohibited; such work within a flood way as would be
allowed may be done only with a permit issued by the director of the DNR.
A Flood Plain, means the area adjoining a river or stream that has been or may be
covered by flood water. IC 14-8-2-99 and 312 IAC 1-1-115. And a Flood Way, means: (1)
the channel of a river or stream; and (2) the parts of the flood plain adjoining the channel that are
reasonably required to efficiently carry and discharge the flood water or flood flow of a river or
stream. IC 14-8-2-102 and 312 IAC 1-1-116. The flood plain is larger than and encompasses
the flood way. The difference between the two, or the part of the flood plain that lies outside of
the flood way, is the fringe. 312 IAC 10-2-24.
The delineation of a flood way and flood plain, in the absence of a designation by the
Federal Emergency Management Agency, is done with reference to a regulatory flood. A
regulatory flood is, a flood having a one percent (1%) probability of being equaled or exceeded
in a year as calculated by a method and procedure that is approved by the [NRC]. The regulatory
flood is equivalent to the base flood or the 100-year frequency flood. 312 IAC 10-2-35.
Indiana counties and municipalities are authorized and encouraged to identify and
regulate flood hazard areas within their jurisdictions. IC 14-28-3-3. Flood hazard areas are,
those flood plains or parts of flood plains that have not been adequately protected from flood
water by means of dikes, levees, reservoirs, or other works approved by he natural resources
commission. IC 14-8-2-98.

Pursuant to IC 14-28-4 and 312 IAC 10-3, counties and municipalities can establish
Flood Plan Commissions (Local Flood Commission) to exercise regulatory control over fringe
areas and, in conjunction with DNR, over flood ways by adopting an ordinance to implement
that control. See IC 14-28-4-3 and 312 IAC 10-3-1. To the extent a Local Flood Commission
regulates activity within a flood way, it may not impose less restrictive conditions than the DNR.
Any owner of property abutting a river or stream who wishes to construct a structure on
his property or do any excavation or fill should check with DNR to delineate the flood way and
the flood plain with reference to his property and to identify any Local Flood Commission that
may have regulatory responsibility for the fringe. If the work will be performed within the flood
way and is allowable, a permit from DNR is required. If the work is allowable and outside the
flood way but within the flood plain, or fringe, a permit form the Local Flood Commission is
required.
Additionally, land located within a flood way or flood plain may also be a wetland. For a
brief discussion on the limits on use of a wetland, see below.

D.

Accretion, Erosion, Reliction, and Avulsion

Just as the water within a watercourse flows, or moves, watercourses also move. This
movement is caused by the gradual wearing-away (erosion) of the banks of the watercourse in
some places and the gradual deposit elsewhere (accretion) of soil that was carried to that point
suspended in the water. In Irvin v. Crammond, 108 N.E. 539, 540 (Ind. App. 1915), the Indiana
Court of Appeals explained: Accretion is the process of gradual and imperceptible increase of
land caused by the deposit of earth, sand, or sediment thereon by contiguous waters , , , The
owner of the abutting land on which the accretions are deposited is the owner of the additional
land so created. See Town of Freedom v. Norris, 27 N.E. 869, 870 (Ind. 1891).
The loss, through erosion, of land abutting a watercourse does not seem to have been a
hotly litigated topic; probably because here would be few reasons to litigate over the loss of land.
The one circumstance in which the issue has come up, albeit not in Indiana, in determining the
new boundary line between two parcels when erosion has caused the thread, or middle, of the
watercourse to move. Inasmuch as the thread is the boundary line, in Indiana, between abutting
landowners on either side of a non-navigable stream, if the thread moves, through erosion, so

does the boundary line. See generally, WALTER G. ROBILLARD & LANE J. BOUMAN , CLARK ON
SURVEYING AND BOUNDARIES 24.09 (7th Ed. 1997).
Where the water gradually withdraws, through a permanent lowering of the water level,
the doctrine of reliction applies. If a reliction occurs, the owner of the land abutting the body of
water gains title and his boundary lines are extended. See State v. Forsyth, 162 N.E. 661
(Ind.App. 1928). See also, Bath v. Courts, 459 N.E.2d 72, 74 (Ind. App. 1984), and Zapfee v.
Srbeny, 587 N.E.2d 177, 179-80 (Ind.App. 1992).6
As we have seen above, gradual changes in the shoreline can result in changes in the
boundaries of lands abutting on non-navigable waters. Oddly enough, rapid changes in the
location of watercourse do not result in changes in boundaries. Such rapid changes are called
avulsions.
An avulsion is a sudden and rapid change of the course of a river by which the river
abandons its old channel and seeks a new channel. For an avulsion to occur there must
be a sudden shifting of the channel of a river which cuts off a body of land such that after
the shift of the river that body of land remains identifiable as land which existed before
the shift and which never became part of the river bed. An avulsion has no effect on title
land.
Longabaugh v. Johnson, 321 N.E.2d 865, 867 (Ind.App. 1975)(citations omitted). That is, title to
the abandoned bed of the watercourse remains in the abutting landowners if it was nonnavigable, and in the state if it was navigable; and title to the new bed of the watercourse remains
in the original owners whether or not the watercourse is navigable.

E.

Wetlands
In its declaration of goals and policies in the Clean Water Act (CWA), Congress said

the objective of the act was, to restore and maintain the chemical, physical, and biological
integrity of the Nations waters. 33 U.S.C. 1251(a). To do so, the Act created a permit
program to control the discharge of dredged and fill materials into the navigable waters. 33
U.S.C. 1344. The Army Corps of Engineers is the agency authorized to issue such permits,
called 404 permits. 33 U.S.C. 1344(a).

6 The opinions in Bath and Zapffe confuse accretion with reliction, but otherwise they are roughly correct on the
cited point.

An application for a 404 permit must also include a certification by the relevant state
agency that the discharge meets state standards. 33 U.S.C. 1341. So an essential element of a
404 permit is prior approval by the state. Indiana state environmental law also requires a permit
to discharge pollutants into waters of the state. 327 IAC 5-2-2. The state Department of
Environmental Management (IDEM) is Indianas umbrella agency within which water
pollution and such matters are regulated.
Originally, IDEM considered all waters of the state that were regulated through the
federal Clean Water Act Section 404 program to be "waters of the United States" subject to the
CWA. With all dredged and fill material in Indiana waters regulated under the Corps 404
permits, IDEM enacted no regulations of its own governing the discharge of dredged and fill
material. Although jurisdiction of the Corps under the CWA was limited to waters of the United
States or navigable waters, over time the Corps claimed permit authority over pretty much all
surface watercourses in the United States-and some federal Courts upheld that claim.7 See
Natural Resources Defense Council, Inc. v. Calloway, 392 F.Supp. 685 (D.D.C. 1975).
In 2001, however, the United States Supreme Court, in Solid Waste Agency of N. Cook
County v. United States Army Corps of Eng'rs, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576
(2001) ("SWANCC"), held that waters are waters of the United States for purposes of the CWA
only if they are navigable, or tributaries of, or wetlands adjacent to navigable waterways. The
Supreme Courts holding in SWANCC resulted in the Corps no longer regulating some isolated
wetlands over which it had previously claimed jurisdiction. Indiana Department of
Environmental Management v. Twin Eagle, LLC, 798 N.E.2d 839, 842 (Ind. 2003).
In Twin Eagle the Court upheld IDEMs ability to fill the resulting gap in the state's
regulation of dredged and fill materials, although it had not yet adopted specific rules for that
purpose. Id. Since then, the General Assembly has given IDEM additional specific authority
and IDEM has adopted its own rules for the regulation of wetlands. The statutes regarding state
regulation of wetlands are found at IC 13-18-22, and IDEMs Rules are found at 327 IAC 17.
Of course, the Army Corps of Engineers retains jurisdiction over navigable waters,
tributaries of navigable waters and wetlands adjacent to navigable waters, and a 404 permit is
still required for discharge of dredged and fill materials into those waters. But IDEMs section
7 To be fair, the Corps did not adopt this expanded view of its jurisdiction until it was ordered to do so by the
federal Court.

401 certification is still needed for a 404 permit. And IDEMs jurisdiction over wetlands now
includes some beyond the reach of the Army Corps of Engineers, so, as a practical matter, a
landowner who wishes to work within a suspected wetlands should make his first contact with
IDEM.
How can a landowner know if he has wetlands on his property? To make a wetlands
determination, the Army Corps of Engineers uses three characteristics, all three of which must be
present during some part of the growing season. Those characteristics are: vegetation type, soil
type and hydrology. According to the Corps, nearly 5,000 plant types and 2,000 named soil
types may occur in wetlands. Hydrology, on the other hand, is easier to check. Wetland
hydrology refers to the presence of water at or above the soil surface for a significant period of
the year to significantly influence the plant types and soils that occur in the area. Although water
presence can be observed during a field inspection, the water does not have to be on the surface
to satisfy the hydrology requirement and it need only be present at the surface during a
significant part of the year.
Both IDEM and the Army Corps of Engineers have information concerning recognizing
wetlands on their websites. The Corps also has pamphlets available.