Friday, January 26, 2018

The Final Word - U.S.Coast Guard Authority and Jurisdiction On the Lake of the Ozarks

For years now I have taken the position both privately and publicly that the U.S. Coast Guard's authority on the Lake of the Ozarks is very limited. Actually, I've basically said the Coast Guard had no authority when it came to law enforcement over the issue of jurisdiction. Does the U.S.Coast Guard have jurisdiction on the Lake of the Ozarks? If so what is their authority as a law enforcement agency on the lake? I've done my best to look at the rules and regulations to figure out for myself the answer to these questions, and concluded that the Coast Guard did not have authority since the Lake of the Ozarks is not considered a "navigable" waterway according to an Eighth Circuit Court ruling in 1989. However, I've never been completely confident in my position and since my goal here is to help provide accurate information regarding the lake and boating, I felt compelled to get it right. Also, it has been clear over time that I am very much in the minority in the opinion that the Coast Guard has limited powers of authority on the lake. So I decided to ask the people who would know, the United States Coast Guard.

I've recently had a discussion via email with a very nice LTjg with the Coast Guard's Public Affairs Office to get a clear understanding of their authority on the Lake of the Ozarks and can now report that my often stated opinion of the Coast Guard's lack of authority has been...

Wrong. (smelling salts please).

In fact, according to the Coast Guard, they have both "authority and jurisdiction" on the Lake of the Ozarks. Jurisdiction, as defined by Commandant Authority, is "the government's power to exercise legal authority over it's persons, vessels, and territory."

The Public Affairs Office specifically sited the Code of Federal Regulations Title 33 sub-part 2.36 as the source of their jurisdiction. Title 33 painstakingly defines "Waters subject to the jurisdiction of the United States" for which the Coast Guard has authority and jurisdiction over. Relevant to the Lake of the Ozarks, and any lake within the continental United States is section 2.36.

§?2.36 Navigable waters of the United States, navigable waters, and territorial waters.
           (a) Except as provided in paragraph (b) of this section, navigable waters of the United States, navigable waters, and territorial waters mean, except where Congress has designated them not to be navigable waters of the United States:
                   (1) Territorial seas of the United States;
                   (2) Internal waters of the United States that are subject to tidal influence; and
                   (3) Internal waters of the United States not subject to tidal influence that:
(i) Are or have been used, or are or have been susceptible for use, by themselves or in   connection with other waters, as highways for substantial interstate or foreign commerce notwithstanding natural or man-made obstructions that require portage, or
(ii) A governmental or non-governmental body, having expertise in waterway improvement, determines to be capable of improvement at a reasonable cost (a favorable balance between cost and need) to provide, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce.

            (b) Navigable waters of the United States and navigable waters, as used in sections 311 and 312 of the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1321 and 1322, mean:
                   (1) Navigable waters of the United States as defined in paragraph (a) of this section and all waters within the United States tributary thereto; and
                   (2) Other waters over which the Federal Government may exercise Constitutional authority.

As with any such document, there's a bit more legalize there for this old puddle pirate's liking but let's see if we can't break this down a bit and figure out how the Lake of the Ozarks fits into this definition. The formatting above is a little difficult to follow but here is the the relevant part.

Part (a) section 3(i), highlight in red is the heart of the matter. "Are or have been used, or are or have been susceptible for use, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce, notwithstanding natural or man-made obstructions that require portage,"

This was the source of my confusion, thinking that since the Lake of the Ozarks was never used for commerce that it did not fall under section 3(i). At one time, long before Bagnell Dam was even an idea, the Osage River had indeed been used for commerce. There's a fascinating history actually, but in short the Osage River was never much more than a means of moving timber for a time and never successfully commercialized like the Missouri and Mississippi Rivers for the transportation of goods and materials. It was the Osage River's lack of success as a transportation river that gave rise to the idea of just damming it up for use as a hydroelectric source. So while the Lake of the Ozarks is currently NOT used for interstate of foreign commerce, the key portion of the description is "...have been used" and "notwithstanding, natural or man-made obstructions that require portage," even though the lake did not exist at the time of relevant description. At least that was the basis of my argument that the Coast Guard lacked authority.

Suffice to say that the Coast Guard's position of authority and jurisdiction is based on a very tenuous link to the past. Their point is that the Osage River had been used for commerce. My point is the Lake of the Ozarks was never used commercially.  In order to agree with the Coast Guard, one would have to agree that the Lake is really an extension of the Osage River to fall into this category. So while the argument can be made the Lake is an extension of the Osage River, the claim that in turn it makes the Lake subject to Coast Guard authority based on past usage a bit of a stretch, I believe it would ultimately come to a court decision to make or break the Coast Guard's assessment that the authority as defined is clearly there. But, for the purposes of  public information I will have to concede that yes, the U.S. Coast Guard does have jurisdiction and authority on the Lake of the Ozarks, if only because the Commandant says so.

But who cares? Right?  I mean that was a lot of discussion and effort over such a trivial matter wasn't it? Well, maybe not.  Consider that you may want to think twice about drinking and operating your vessel now that you know there's a law enforcement agency on the water that can literally make a federal case out of it.

Or,  more to the point.

You might also consider what the Coast Guard's authority and jurisdiction might mean if you are in possession of a federally controlled substance on your vessel, say, marijuana for instance? On November 6th 2018 Missouri voters approved a state constitution amendment to allow the use of cannibis for medical purposes. State laws notwithstanding, whether legalized or not, the Coast Guard has the authority to enforce federal law and under federal law marijuana is still illegal. I know what happened to vessels we came across hauling marijuana in my time on a cutter patrolling the Gulf of Mexico. Care to guess what might happen to your shiny boat should that Coast Guard small boat patrol catch you with contraband in Party Cove? Of course, search and seizure of your vessel is a possibility with local and state law enforcement as well, but I can assure you, it's a definite possibility when it comes to the feds. In fact, every boat you see with a name on the stern and port of call underneath is registered with the U.S. Coast Guard and technically a part of the fleet. What few people know is that in order to name their boat, and avoid registering it with the state and thus avoid (some) of the sales tax obligation to the state of Missouri) what they are doing is registering it with the federal government as part of the reserve fleet, namely the Coast Guard auxiliary. It can therefore, albeit under specific circumstances, be commandeered for their purposes and the Coast Guard takes a dim view of contraband being on boats in their fleet. Does this mean the Coast Guard will confiscate your vessel if you are searched and contraband is found? I wouldn't think so, but it certainly means they can.  Given some of these boats on the lake are worth millions of dollars, I for one wouldn't want to put it to the test should recreational marijuana be allowed at some point in the future. I've never heard of such a thing happening in states that have passed recreational marijuana use, but the USCG Public Affairs Office indicated it was within their authority. You can bet such an occurrence would end up it federal court, and that's not cheap.

So here it is, my final words on the subject, whether I agree or not: The Coast Guard is charged with enforcing safety and federal law, and now you know they believe they have the full authority and jurisdiction to do so on the Lake of the Ozarks.

Wednesday, January 17, 2018

A New Year, New Wake Legislation Proposal

Update - This bill was passed as HB 2116. Click here for a full update.

Meet House Bill 1591, legislation proposed by House Representative David Wood of District 58 intended to curb wakes on the Lake of the Ozarks. This is actually a follow-up to a bill filed in 2015 that never even made it to committee. This prior bill would have made intentionally creating large wakes within 300 feet of a dock, pier, or anchored boat an offense.  The bill died unceremoniously due to a lack of legislative oxygen.

This new proposed bill is a bit more ambitious than the last, seeking to not only make enforcement more realistic, but adding the ability for lake shore residents to create no-wake coves with a simple majority rule.

It has been said, that the reason Water Patrol does not enforce the no wake zones and life jacket rules is due to the overly harsh penalties for an infraction. Currently not having a life jacket for each passenger is a misdemeanor, punishable by a fine of $185, including court costs. This new bill would effectively reduce the fine to a $25 citation. Likewise no-wake zone infractions would also be $25 but would go against the owner of the vessel, and not the driver.

This all goes on the theory that a more manageable and fair penalty for infractions will encourage enforcement and with more people getting more tickets, boat owners will get with the program and change their behavior.  Let's unpack that just a bit.  The Water Patrol considers itself under-manned already and with law enforcement emphasis on more pressing safety concerns such as BWI's and BUI's, it's not likely that infractions for safety or being a nuiscance are going to suddenly become the crusade of choice for the Water Patrol.  But okay, I can't make any argument against decriminalizing being stupid about safety, or being inconsiderate to other peoples property. I just don't see it as a solution to the problem, only another excuse to enrich coffers.

Changes to the rules to create no-wake coves is the real sea change here presented by Mr Wood's bill.
HB1591 allows a simple majority of homeowners in any given cove the right to create no-wake zones if their cove has a main juncture (mouth) of less than 800 feet (75% for 400 feet). 800 feet is quite a distance when it comes to the mouths of cove openings on Lake of the Ozarks.  I haven't done the research on 800 feet, but can say I've done it for coves with less than 1200 feet of main juncture when it was proposed and found that there were only 3 coves on the entire lake that would not have ended up as no wake had it passed. Offhand, I would say the majority of main junctures from the main channel are 800 feet or less in distance. If a simple majority of homeowners in the cove is all that is needed to turn it into a no-wake zone then it won't be very long before the only place you can make speed or be on plane creating a wake is in the main channel. If you've ever been to Grand Lake in Oklahoma, you know what that's like. Arguably a different lake because it is controlled by the Corps of Engineers, the experience of having to idle a long way just to get to the main channel isn't exactly my idea of boating.

I'll keep an eye on the bill and see if it has any legs. Currently it's had two readings, which is just introductory, but it has not been sent to any committee as of yet.  So far it doesn't seem to have much support.

I don't wish to disparage Mr Woods in his efforts, I understand it's a legislators job to try and address the issues their constituents have brought to them, and wake issues have been on everyone's mind for quite some time now, but I still contend that there is very little that can be done through legislation to address wake issues on this lake..

Tuesday, January 02, 2018

Flow Rate Facts for 2017

Bagnell Dam, on average passed through about 12,500cfs of water every hour in 2017. That's about 93,400 gallons every second, again on average. The graph below breaks down the percentage of time operated at specific flow rate ranges.

The total amount of water passing through Bagnell Dam for 2017 was just under 3 TRILLION gallons.

The maximum flow rate was 86,432cfs on April 30th. That's nearly an Olympic size pool every second!

For power generation it is assumed that total generation operation time is a combination of typical, maximum, and flood rates, or 41%.

December 2017 Lake Levels and Flow Rates

From the chart one might think Ameren is getting a jump on the draw down this year.  Lake levels ended a foot and a half below the five year average (grey line) for this time of year.  But notice there hasn't been a lot of power generation (indicated generally by flow of 10,000-30,000cfs) despite the cold temperatures. The slow gradual decline in lake levels is more an indication of our borderline drought conditions I would think.

Full year in review coming!