by Scott Zesch
Landowners in the western Hill Country have been alarmed by recent reports that the Texas Commission on Environmental Quality (TCEQ) is re-classifying certain non-navigable streams as navigable, thereby converting private property to state land and opening it to the public. These issues are confusing, because navigable streams and private property involve two separate and long-established sets of legal rights that sometimes conflict with each other.
Since 1837, Texas statutes have deemed a stream to be navigable so far as it retains an average width of 30 feet from the mouth up. A state agency such as TCEQ cannot arbitrarily re-designate a non-navigable stream as navigable. Rather, it can only determine whether a particular stream meets this statutory definition of “navigable.”
For landowners, this classification is critical because Texas law grants the public a right to use navigable streams up to the gradient boundary. This right of free use and movement, which dates back to the 1830s, encompasses more than just commercial navigation; a Texas court expressly approved recreation as a lawful use of navigable streams as early as 1917. In contrast, the public has no right to use non-navigable streams on private property.
Some of the older survey lines in Texas extended across the beds of smaller waterways rather than stopping at the bank, so that the landowners hold title to the streambeds as part of their property. Ordinarily, the bedrock of private property rights is the right to exclude. However, Texas cases and statutes have long established that the landowner’s property rights in the bed of a navigable stream do not trump the public’s conflicting navigation rights. One appellate court explained in 1981 that owners of streambeds “cannot unreasonably impair the public’s rights of navigation and access to and enjoyment of a navigable water course.”
At the same time, a state agency’s determination that a stream is navigable does not transform a privately-owned streambed into state land. The Texas legislature validated these trans-stream survey lines in 1929, so that landowners who hold title to a streambed retain many property rights in it. Nonetheless, that portion of their private property is burdened by the public’s longstanding right to use navigable streams.
Finally, members of the public cannot cross private property to access a navigable stream. They can only do so from public land (usually a road) adjacent to the stream.
Use of Stream-bed
Under Texas Law, a stream is considered public if it is navigable in fact or navigable by statute, the latter referring to any stream that retains an average width of 30 feet from the mouth up. As the entire stream-bed is considered in calculating width, there is no distinction made as to whether the stream is dry. During the original survey of Texas in the 1840s, John Borden, the first commissioner of the Texas General Land Office, instructed surveyors to not extend survey lines across navigable waterways. As a result, in many rivers in the state, such as the Llano, the stream-beds are owned by the state, in trust for the public. However, on many smaller waterways, including the James, survey lines were extended across the stream-bed. [ii]
In 1929, in an attempt to remedy some of the confusion resulting from survey lines crossing navigable waterways, the State passed the Small Bill that validated these surveys. [iii] However, the Small Bill noted that such validation did not impair the rights of the general public and the state in the waters of the streams. Such rights include navigation. So even if a landowner's deed includes the bed of a navigable stream, the public retains its right to use it as a navigable stream. [iv]
In addition, the state lays claim to any water within a defined watercourse. The Texas Administrative Code defines a watercourse as “a definite channel of a stream in which water flows within a defined bed and banks...” [v] Waters of the state require requires a water rights permit from the Texas Commission on Environmental Quality. [vi] Under the Small Bill, the state also retains possession of the sand and gravel found in the stream-beds. Consequently, the removal or disturbance of this material may require a permit issued by the Texas Parks and Wildlife Department. [vii]
By Caroline Runge, Manager Menard County Water control and Improvement District No. 1
For the past couple of months rumors have been floating around that the Texas Commission on Environmental Quality is planning to re-classify creeks and streams in the western Hill Country as navigable streams.
Last week we learned that they have already done so in Kimble County.
A rancher on Bear Creek let us know that he had been issued a citation, setting a fine for having a dam on the creek and ordering him to tear it out within days. He protested that the dam had been there for generations, and the creek is private property.
Not so, said TCEQ personnel, informing him that Bear Creek had been re-classified as a navigable stream on September 3rd.
The significance of re-classification is that the stream beds of navigable rivers belong to the state; the beds of non-navigable streams are private property and belong to the owner of the land through which the stream runs.
This distinction dates from the early history of the United States when rivers were a primary means of transport of goods, and the state prevented obstructions in the rivers to protect and promote commerce.
The early law cases required that a river be “navigable in fact” – that is, that it really could float a commercial boat.
By the 1920’s and ‘30’s, when the Federal government and the states felt that water resources more under government control, the definition of navigable underwent a series of changes.
Now a stream can be declared navigable in Texas if the stream bed is 30 feet wide from cut bank to cut bank (the technical term is “gradient boundary’). That doesn’t mean that the water has to be 30 feet wide – only the bed of the stream.
Many streambeds in this area have been widened to 30 feet by the occasional flood, though their normal condition may be only a trickle through the streambed.
A call to the General Land Office, which has jurisdiction over state lands, confirmed that the TCEQ is looking at re-classifying streams in Menard, Mason, McCulloch and Kimble Counties.
There are several serious concerns with re-classification.
If carried out to the extent proposed, it converts thousands, possibly hundreds of thousands, of acres in the Edwards Plateau region from private property to state property.
And once the streambeds are state property, the ranches they cross are open to free access by the public. Any place a creek crosses a county road, for instance, anyone can walk or boat from that point up the streambed through the ranch.
The main reason people buy ranches these days is to have privacy and a place that the public can’t access, so the re-classification may have a very negative impact on values of properties that have streams.
Another issue is the due process aspect of re-classifying the streambed with no notice to landowners that their land is being taken by the state – a total violation of constitutional principles of law.
And to assess a fine and demand that the property owner tear out the dam without his having been given prior notice that the land is no longer deemed private further violates all notions of due process.
Finally, there is a legal question of whether the land can be declared state property before it has been surveyed and the boundaries defined by the General Land Office.
We need answers about how and why this is happening and who authorized it.
The western Hill country is affected now; if unchecked, it won’t be long before it spreads everywhere in the state where surface water resources are scarce.
TCEQ Response to "TCEQ Takes Private Property Without Notice Or Hearing"
Zak Covar, Executive Director, TCEQ
Last week's Menard News and Messenger contained an op-ed, “TCEQ Takes Private Property Without Notice or Hearing,” that contains misleading and incorrect allegations of TCEQ taking private property without due process in Kimble County. The TCEQ would like to respectfully provide additional information to help fully understand the facts of this case.
In the West Bear Creek case cited in the article, the TCEQ initiated an investigation based on an anonymous citizen compliant. The complaint alleged an unauthorized impoundment of state water. An on-site investigation was conducted where an on-stream dam and impoundment were observed and documented. TCEQ records were reviewed for the presence of an active water rights permit authorizing the impoundment of state water. No authorization for the impoundment was found.
Following protocol, TCEQ requested assistance in confirming the navigability of the stream segment from the General Land Office (GLO). The GLO reviewed historical mapping of the stream and other official state records on file for many years. Based on this information, the GLO concluded that the stream segment in question met the definition of a navigable stream. This conclusion did not "reclassify" the stream segment as indicated in the article. Rather the TCEQ was simply verifying the existing navigability status of the segment as part its investigation protocol.
After all information was gathered and evaluated, the TCEQ issued a citation to the responsible party in the West Bear Creek case for impounding state water without a required permit. The TCEQ also offered the responsible party the option of obtaining a water permit to authorize the impoundment of state water. Rather than contesting the assessment of this penalty by requesting an administrative hearing, the responsible party chose to sign the field citation, paid the $875 penalty and then removed the dam. Based on these facts, the complaint investigation is in the process of being closed.
TCEQ takes private property rights seriously and enforces state law and rules accordingly. In this case, no reclassification of navigability status, and no taking of privateproperty occurred.
“Streams and lakes have long since shriveled up in many parts of the state, and now the aquifers — always a backup source during the region’s periodic droughts — are being pumped away at rates that scientists say are both historic and unsustainable.” Read more from the Washington Post. Now California lawmakers are overhauling the state's longstanding "pump-as-you-please" groundwater policy under a package of bills lawmakers recently sent Gov. Jerry Brown. Read about California’s new groundwater rules in the Fort Worth Star Telegram here.
Open to youth ages 8-18, the Picture Your World weekend workshops teach photographic composition and technique through hands-on demonstration, and constructive critique. Participants will produce a visual memory of their day and begin a creative portfolio while experiencing the wonders of the natural environment. Learn more
Fredericksburg SHINES (FBG SHINES), a local organization dedicated to educating the public about sustainable living, will host their second annual Fredericksburg fall tour of homes to spotlight local examples of sustainable, green-living practices. Learn more
The population of Travis County is expected to grow 50% by 2035 for a total of 1,500,000 people. Planning for growth outside of the city limits is critical for the county to continue to thrive in a sustainable manner. As such, Travis County needs your feedback to ensure the County's first comprehensive, long-range Land Water and Transportation Plan reflects local values and priorities. Click here to learn how you can help Travis County plan for future growth.
Hill Country preservationists are calling on state officials to act after Pilot Flying J, the nation’s largest truck stop operator and diesel fuel retailer, broke ground on an environmentally sensitive site in Junction only a few hundred yards from the banks of the North Fork of the Llano River. Read more from the Rivard Report.
A landowner workshop has been planned for all interested in, or potentially impacted by, the proposed substation and transmission line planned for the Blumenthal area, September 6 near Fredericksburg. Learn more
The Texas Department of Transportation (TxDOT) has withdrawn its June 2014 proposed rule change that would have allowed billboards along federal highways to be taller. After receiving public comments from more than 900 Texans and 15 organizations in opposition to taller billboards, the agency advised today it is removing the item from consideration on the August 28 Texas Transportation Commission agenda. Learn more
Efforts to limit the nighttime glow in and around Fredericksburg were buoyed this month as the council approved an outdoor lighting standards ordinance, which will primarily affect new residential and commercial development. A complete draft of the ordinance can be found on the city’s website, www.fbgtx.org. Learn about Hill Country attorney-astronomer, HCA Night Sky team member Ken Kattner who records skies from home observatory and advocates for proper lighting in the Hill Country here.
SAWS presented plans for a 142 mile pipeline from Burleson County to San Antonio at a recent community forum at UTSA. Learn more and watch a video from SAWS news here. While the plan promises 50,000 acre feet of non-Edwards water annually, a Texas Public Radio segment points out that perhaps not enough questions have been raised. Are there consequences related to costs to the community and impacts on San Antonio’s conservation ethic worth exploring? Click here to read and listen to “The Source: Some Critique On A SAWS, Vista Ridge Deal." Decisions will be made by SAWS in September and SA City Council could take this up in October.
“Innovative Strategies and Hard Choices for a Secure Future” will be moderated by Robert Rivard and hosted at the Historic Pearl Stable in San Antonio. A stellar line-up of speakers includes: Berto Guerra, Bill West, Andy Sansom and Karen Guz. Learn more and mark your calendar today.
“The routes will connect destinations beyond Dripping Springs and will take advantage of opportunities to reach the proposed Violet Crown Trail and other regional trails and parks planned for Central Texas.” Read more and get involved. The City of Dripping Springs is soliciting input.
Look to the sky for your water supply—and learn how to capture and use it at the fifth annual Rainwater Revival, which returns to Dripping Springs on October 25. The popular and free edu-fest event is put on by the Hill Country Alliance. “We began our part-educational, part-fun fest in Dripping Springs in 2010, and after two years there we took the event on the road to other parts of the Hill Country,” said Event Chair Karen Ford. “We’re happy to be coming ‘home’ to share the latest information about rainwater conservation and harvesting at Dripping Springs Ranch Park. Learn more
“The population growth has had some obvious impacts, For one, there are a lot more straws, big and small, taking from the groundwater supply.” David K. Langford tells the audience at a recent private lands summit hosted by the Texas Wildlife Association. Read more from Livestock Weekly.
The Native Plant Society of Texas Native Landscape Certification Program is a series of courses that teaches best practices for native plant landscape and habitat preservation. Targeted audiences are homeowners, native plant enthusiasts, landscape architects, architects, landscape designers and nurserymen, Master Naturalists, teachers, citizens, Master Gardeners, engineers, and more. Learn more and register.
Depending on whom you ask, San Antonio might either be on the cusp of securing its water future at a relatively low cost, or it is pinning most of its hopes on a multibillion-dollar boondoggle that could diminish the water supply for fast-growing Central Texas and wouldn’t deliver what San Antonio expects. Read more from the Texas Tribune
“It’s through photographs like these that we help share the importance of protecting our Hill Country environment, and one of the reasons our calendar has been so popular with both area residents and nature lovers worldwide,” said Milan J. Michalec, board president of HCA. Read More
September 6 in Fredericksburg - HCA Landowner Workshop: Discussion of the Blumenthal Substation and Transmission Line - Details
Sepbember 8-12 in Austin - 6th International Workshop on Catchment Hydrological Modeling and Data Assimilation - Details
September 9 in Kerrville - “Drought Impact in Kerr County & How to Improve Our River’s Health” by Tara Bushnoe, UGRA’s Natural Resource Coordinator, at the Riverside Nature Center - Details
September 11 in Wimberley - Community Water Meeting, hosted by CARD - Details
September 12 in Kendalia - 2014 New Landowner Series: Wildlife and Range Management, Brush Work and Sculpting - Presented by the Texas A&M AgriLife Extension Service - Details
September 20 in Fredericksburg - Fredericksburg Shines 2nd Annual Sustainability Green Homes Tour - Details
September 22 in Kerrville - Monthly meeting of the Texas Master Naturalists - Topic: Hill Country Land Trusts, Speaker: Bill Lindemann, Vice President of Hill Country Land Trust - Details
September 26-28 in Belton - Renewable Energy Roundup - Details
September 27-28 in Boerne - Texas Hydro-Geo Workshop - Details
September 28 in Austin - 7th Annual Celebration of Children in Nature - Hosted by The Children in Nature Collaborative of Austin and the Westcave Outdoor Discovery Center - Details
See more upcoming events
HCA's 2015 Calendar is coming soon! Check back for availability.
Imagine a place where vibrant communities draw strength from their natural assets to sustain their quality of life. A place where citizens care about protecting the special qualities of a region – their region. A place where people and partners band together to envision a better economic future, tackle shared challenges and care for the natural, scenic, and recreational resources that define the place they call home.
~This is a Conservation Landscape
Helpful Mapping Resources - Beautiful and informative maps of the region to print and share.
HCA Dynamic Mapping Tool - Interactive online GIS mapping tool