Scenic Streams Program

This program is a creation of the Mississippi State Legislature. If it were to change, the legislature would have to do it. It would be against legislative intent to have a regulatory program. This much can be learned from a reading of the first paragraph of the Act that created the program. The Legislature refused for nearly 30 years to pass regulatory versions of a streams program. The efforts failed six times between 1969 and 1978. In 1999, this voluntary, non-regulatory, landowner outreach program was created and passed into law. The legislature does not want to regulate landowners with a streams program.

In order for the federal government to come in on the heels of a state program, the federal government must have delegated (given) administrative powers to the state over some subject and provided the state with federal guidelines to follow, and the state must have failed to follow them. The Mississippi Department of Wildlife, Fisheries, and Parks has not been delegated any administrative power over streams or waters by the federal government. The Stream Stewardship program is Mississippi law, not federal law, and so there is no basis for the federal government to step in.

No. The important fact is that this does not change public water law, nor does it give anyone more legal rights to float, swim, or use public waters than they had before the program.

This is a landowner outreach program. There is some required public notice about meetings and about the nomination and designation, but most of the interaction with people is aimed at landowners along the stream or river.

The day-to-day work of the program and the vast majority of the correspondence, contact, and transactions will be with landowners. This is not a promotional campaign to open up a river to more use. It is a stream buffer program, with water quality and stream bank stability as its goals. It seeks stability or improvement of fish and wildlife habitat, not increased exploitation of streams. Recreational use will be a natural consequence of having a healthy, scenic stream. Most recreational users of public waters tend to value many of the same scenic qualities as the landowners in the program. Recreational users who litter and break laws will be dealt with by law enforcement officers, as is the present case.

BMPs are voluntary, it is true. The idea of leaving buffer zones along streams is hard to oversell or overemphasize. Farmers have had buffer programs such as CRP and WRP for some time. When compared with farmers, non-agricultural landowners along streams are less likely to receive the message about improving water quality with buffer zones. This program provides a way to directly reach these people.

County and local governments generally do not have the people nor resources to do educational programs that reach out to landowners, and since stream conservation is a statewide issue, it is proper for a statewide resource agency to undertake such a task. This program uniquely fits the expertise of an agency such as the Department of Wildlife, Fisheries, and Parks. Streams provide habitat for the fishery and wildlife resources that the Agency manages. Healthy in-stream and riverbank habitats help sustain fish and both game and non-game wildlife species.

A Stewardship Plan considers a river as a whole and provides a framework in which voluntary, coordinated private conservation efforts can link its different reaches with protective buffer zones. This is a watershed approach to conservation. Also, until now, concerned landowners have not had a way to be part of an organized plan. They may have used BMPs because they felt it would help the river, but they couldn't see how their activities related to what others may have been doing to keep the river or stream healthy. For landowners who had never heard of BMPs, this program is a way to spread the message that riparian landowners have a substantial effect on the river, for better or worse, and that the choices they make matter for the overall condition of the stream.

Unity of purpose and the ability to see how one's efforts relate to similar undertakings up and down a stream make this different from the status quo. This gives direction to concerned riparian landowners and a way to focus their concerns about their stream.

This program does not create another layer of regulation for farmers. The farmers who will have contact with the program are those who have pastures or fields along banks of streams that become eligible for the Scenic Streams Stewardship Program. They will be contacted by the Department by mail when their parcel is found in the county land ownership maps at the tax assessor's office. They will receive notice of public meetings concerning nomination, and will be invited to comment on the inclusion of their stream in the program. Farmers may already be involved in CRP continuous sign-up buffer programs.

If their river is nominated to the program, farmers will be contacted by the Department again about being part of a voluntary Stewardship Plan. They can choose to participate by agreeing to use BMPs bordering the stream, and will be assisted by the Department in implementing this agreement, or they can choose not to participate at all.

The program does not single out farmers but offers the same encouragement and opportunity to them as it does to other landowners.

There are eight steps involved in getting a steam nominated to the program:

1. Eligibility: Organization, resident, state agency, or local government may request the Department of Wildlife, Fisheries, and Parks (the Department) to evaluate a stream for eligibility.
2. Evaluation: The Department will then evaluate the stream using the following criteria: Biological, Physical (character of stream channel), Human Interaction (use by people), and Historical.
3. Legislative Determination of Eligibility: If the stream meets the criteria, the Department recommends to the Legislature that the stream be listed as eligible. This recommendation takes the form of a bill that the Legislature must adopt before the process can advance to step 4.
4. Advisory Council: The Department, through the executive director, then appoints an advisory council for the stream. Landowners must constitute a majority of the council. This council is composed of members representing the following local interests:
   1. The Department
   2. Local Government
   3. Agriculture
   4. Forestry
   5. Business
   6. Conservation
   7. Recreation
   8. Riparian (Stream-Side) Landowners
5. Public Notice and Meeting: Actual notice is mailed to riparian landowners. Thirty days after published public notice in newspapers of both local and statewide circulation, a public meeting will be held in the vicinity of the stream. Public comments concerning the nomination of the stream will be received at this meeting.
6. Nomination: After consideration of the public comments received at the meeting, the Department and the Advisory Council will then decide whether to nominate the stream.
7. Legislative Nomination and Notice: Nomination of the stream to the Scenic Streams Stewardship program is filed as a bill and must be adopted by the Legislature. Notice of the final designation including boundaries will be given by publication in local and statewide newspapers and by mail to riparian landowners and local government.
8. Stewardship Plan: The Department and the Advisory Council then develop a cooperative voluntary stewardship plan for the scenic stream. Individual landowner agreements can provide a connected patchwork of protective buffer zones along the length of a stream.

A Stewardship Plan is composed of voluntary agreements by landowners to keep buffer zones along their sections of streams by the use of Best Management Practices (BMPs) when they harvest timber or clear along stream banks. BMPs are a set of recommended guidelines for planning and conducting timber harvest operations so that adverse effects from soil disturbance do not harm water quality in nearby streams.

The practices are designed to reduce sediment runoff to a minimum by leaving adequate vegetation in place along the banks of running streams.

BMPs help maintain the scenic values of the stream while ensuring the rights of riparian (stream-side) landowners to continue existing agriculture, forestry, water supply, recreational, commercial and industrial uses, and any other uses identified. This plan is created with the assistance of the State Soil and Water Conservation Commission, and the State Forestry Commission. A landowner is not obligated or required to participate in the plan.

A range of stewardship options will be available to a landowner wishing to participate in the Stewardship Plan. Landowners can take part through non-binding BMP agreements, or through binding grants such as conservation easements. The choice to participate or not is left to the landowner.

The basic option is the non-binding agreement with the Department that the landowner will require Best Management Practices when harvesting timber along stream banks. This means that BMPs will be made a requirement of the timber deed or contact of sale with the timber buyer. BMPs call for leaving an area of uncut trees and vegetation of an appropriate width along the stream bank. Foresters call this a Streamside Management Zone or SMZ. The width of the SMZ will depend on the grade or slope of the land, and on soil type, and other individual characteristics of the land. Leaving uncut trees and vegetation along streams serves the purpose of holding the bank soils, slowing rainwater runoff, and filtering out and trapping sediments and soil before they wash into the stream. This agreement is non-binding and can be canceled with 30 days notice to the Department.

Other stewardship options can include the granting of a conservation easement or right of use to a holder such as: a private nonprofit, charitable or educational corporation, association, or trust, or an appropriate state governmental body. An easement is similar to a right-of-way, or a limited right of use for a certain purpose. A conservation easement is a legal agreement a property owner makes to restrict the type and amount of development that may take place on his or her property. The landowner still owns the land to which the easement applies. The Department of Wildlife, Fisheries, and Parks can be granted easements, or donations of land for conservation purposes along streams.

An example of a significant conservation easement is International Paper Company's agreement to limit disturbance in a 300-foot forested buffer on either side of the Wolf River for 15 miles in Harrison County. The Company negotiated the terms of the easement, and was afforded tax relief. Land donated to the state reverts back to the donating landowner if the land ceases to be used in the program.

Again, participation in the plan is voluntary, and there is no legal obligation to participate in the stewardship plan. A landowner can terminate participation in a non-binding option (the agreement to use BMPs) by giving 30 days notice of his intent to terminate the agreement and withdraw from the program.

Many landowners will probably choose the non-binding agreement to use BMPs when harvesting timber. This kind of participation in the stewardship plan can be terminated easily. The granting of easements and donations of land are not options which may be terminated by 30 days notice. These types of conveyances are governed by Mississippi property law and should only be undertaken after consultation with an attorney. Such legal acts must also be in writing and filed in the public record in the appropriate County Courthouse. There are advantages to donations for the purposes of individual tax and estate planning, and landowners may be interested to know how these can help ease their tax burdens.

The Department of Wildlife, and Fisheries will insure that interested landowners know the difference between non-binding options and other options such as easements and donations. The distinctions among the different kinds of options must be understood by landowners before entering into any Stewardship Plan.

Under present Federal Tax Law, a landowner can use grants of easements or donations of land for tax relief. A qualified conservation contribution under Section 170 (h) of the Internal Revenue Code is a special class of charitable contribution for which an income tax deduction may be taken equal to 30% of Adjusted Gross Income (AGI) for a total of six years or until the value of the or gift is used up. The gift may be of an easement or of a grant in fee simple, but must meet the conservation purposes test, must be perpetual, and must go to a qualified holder or charity.

Estate tax reductions can also be obtained by certain gifts of qualified conservation easements as defined under Section 2031(c) of the Internal Revenue Code, also known as Section 508 of the Taxpayer Relief Act of 1997.

Mississippi passed its own Conservation Easement Act of 1986, which is a statute providing for the grant of easements (see Miss. Code §89-19-1). This statute gives a clear method for granting gifts of land or easements that can qualify the donor for tax relief under federal law.

1. The program is voluntary, non-regulatory, and was created as a framework for stream conservation in which landowners can participate if they choose. The Mississippi Legislature did not want to create a program that would add any layers of regulation for landowners.
2. Landowners can agree to maintain the biological integrity and value of their property. The benefits of maintaining stable stream banks are many. Bank erosion is decreased, stream channels remain intact, water quality is improved, habitat is maintained for fish and wildlife, and landowners keep valuable soil and nutrients on their land. This is conservation on a watershed scale, and modern computer mapping can be used to track the progress of Stewardship Plans.
3. The program confers no new rights on the public to use or access private lands within the boundary of a designated scenic stream area. This program operates under the Public Water Law (Miss Code § 51-1-4) presently in force and does not change the law.
   • Since 1988, the Public Water Law has provided for limited public rights for citizens to have "free transport on the water and in the bed and to fish and engage in water sports". Because the adjacent private landowner usually owns the beds and banks of streams, it is trespassing to leave the confines of the stream-bed itself.
   • Historically, a public right existed for the use of streams for commerce, e.g., to float logs downstream to mills, and to move farm products, especially cotton, by boat or barge. The use of streams for commerce has given way to recreational use, but the public right is still based on the idea of floating a vessel on the water. Floating the stream for pleasure or for fishing is within the intent of the present law, as is wading the stream to fish. Under M.C. § 51-1-4, any unauthorized use or disturbance of streambanks or stream beds is trespassing and subject to criminal penalties. Landowners concerned about liability will note that the Public Water Law provides statutory immunity from damages for injuries to people using the stream. For details, see the full text of the Public Water Law included later in this text.
   • Trespassing includes using flood waters to move outside a stream's channel to access private land. Driving a 4-wheeler (ATV) down the channel of a public stream is not within the intended use of the stream, and this activity is usually treated as trespassing under the law.
4. Any landowner entering into a binding agreement (easements or fee donation) for the management of lands along streams shall be eligible for any subsequent incentives that are offered for participation in the Scenic Streams Stewardship Program.
5. The public sections of six streams have been declared eligible for evaluation. That is, the public sections of the following streams have cleared steps one and two in the process: the Wolf River, Black Creek, Okatoma Creek, the Strong River, the Pearl River in Winston and Neshoba Counties, and the Buttahatchie River.
6. With proper notice, landowners may withdraw from non-binding options, such as basic BMPs.
   • Other stewardship options, such as the granting of conservation easements along streams or the donation of land to the Department, are binding and may not be terminated with notice of 30 days.