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Letter to Livestock Weekly

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.


From the James River report, "The Unknown River of Central Texas".

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]


TCEQ Takes Private Property Without Notice Or Hearing

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"

No taking of private property

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.

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Upcoming Events

April

April 22 - Earth Day! - Earth Day Events

April 22 in Austin - Texas Water Journal Forum focusing on current challenges to rural and urban water conservation - Details

April 23-25 in Kerrville - Bennett Trust Educational Program: "Protecting the Legacy of the Edwards Plateau" - Details

April 23-27 - 2014 Hill Country Nature Quest - Tour the Hill Country River Region and learn about native plants, birds, butterflies and wildlife - Details

April 25 in Austin - Kent Butler Summit, “Faucets, Toilets, and Automobiles: Balancing Growth and Sustainability in the Barton Springs Aquifer Region” - Details

April 25-27 in Fredericksburg - 4th Annual Wings over the Hills Nature Festival - Details

April 26 in Austin - Native Plant Spring Symposium - Hosted by The Native Plant Society of Texas and the Lady Bird Johnson Wildflower Center - Details

April 28 in Kerrville - Native Bees of Texas - A meeting of the Hill Country Master Naturalist - Free and open to the public - Details

April 30 - Keeping Rivers Flowing: Innovative Strategies to Protect and Restore Rivers - Free three-part webinar series on strategies to ensure the future health of Texas' rivers, bays and estuaries - Details

May

May 3 in Bandera - 13th Annual Medina River Cleanup - Details

May 6 in Medina - Fruit Tree Management Workshop - Hosted by Texas A&M AgriLife Extension Service - Details

May 7 in San Antonio - Public Health and the Built Environment - Healthy Communities by Design - Details

May 8 in San Antonio - Urban Wildlife Management Workshop - Details

May 9 in Boerne - Monarch Workshop: Monarch Biology, Ecology & Monarch Larval Monitoring Project Training - Hosted by the Cibolo Nature Center - Details

May 9 in Stonewall - 2014 New Landowner Series: Forage Production, Livestock Production and Handling, Crop Production - Presented by the Texas A&M AgriLife Extension Service - Details

May 10 in Wimberley - Grand Opening of the newly improved Jacob's Well Natural Area - Details

May 12 in Fredericksburg - Better Lights for Starry Nights: Learn how to save money, preserve our night skies and enjoy some star gazing! - Hill Country University Center - Details

May 13 in Kerrville - Texas Riparian & Stream Ecosystem Workshop – Upper Guadalupe River - Details

May 13 in Llano - Better Lights for Starry Nights: Learn how to save money, preserve our night skies and enjoy some star gazing! - Details

May 14 in Marble Falls - Better Lights for Starry Nights: Learn how to save money, preserve our night skies and enjoy some star gazing! - Details

May 16 in Fredericksburg - Better Lights for Starry Nights: Learn how to save money, preserve our night skies and enjoy some star gazing! - Enchanted Rock State Natural Area - Details

May 16 in Austin - Exploring Conservation Design in Central Texas with Randall Arendt - Details

May 19 in Austin - 2014 Texas Water Summit: Securing our Economic Future - Presented by The Acadamy of Medicine, Engineering & Science of Texas Details

May 28-30 in San Antonio - Southwest Stream Restoration Conference - Details



See more upcoming events


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