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.
San Antonio's City Council voted to approve a new contract between San Antonio Water System and the Vista Ridge Consortium on Thursday, October 30.Through this project, SAWS will buy 16.3 billion gallons water from the Carrizo and Simsboro aquifers over the next 30 years. The price tag on the project is $3.4 billion. Read more from the SA Business Journal.
Driving through western portions of Austin, maybe you’ve noticed scenic, tree-covered hills spreading across the landscape and wondered when they will become a new shopping area or residential development. While growth is inevitable, it is also important to preserve land for the environmental benefits it provides. Learn more
Water is a hot topic in Texas – and it’s getting hotter. Register for Trib + Water to stay informed. This bi-weekly newsletter is brought to you at no cost by The Meadows Center for the Environment and The Texas Tribune.
“The project is much too important and costly for San Antonio not to have a full and complete understanding about the reliability of the groundwater supply.” Read more from this open-letter by Dr. Curtis Chubb, rancher and groundwater expert, published in the Rivard Report. Citizens have the opportunity to address the San Antonio City Council each Wednesday at 6:00 pm. The Alamo Group of the Sierra Club has created a clearinghouse of articles and reports to keep you informed. SA City Council is likely to vote on the project Thursday, October 30th.
“This historic decision puts us within reach of purchasing the entire tract of land and protecting the habitat Bracken’s bats have used for thousands of years.” Read more from Bat Conservation International. “San Antonio is one of the fastest growing cities in the county, in part because of the vast natural resources of the region. It’s our responsibility to ensure we protect and conserve what makes this region incredibly special.” Councilman Ron Nirenburg, quoted in the Rivard Report.
There's a lot of evidence that millennials don't drive as much — or care as much for cars in general — as previous generations their own age did. They're less likely to get driver's licenses. They tend to take fewer car trips, and when they do, those trips are shorter. They're also more likely than older generations to get around by alternative means: by foot, by bike, or by transit. There's still a lot of dispute, however, over exactly what these trends mean. Read more from the Washington Post.
"Everything from urban development to dance hall preservation was on the agenda at the Hill Country Alliance 2014 Leadership Summit, held Thursday at the Nimitz Hotel Ballroom." Read the full article from the Fredericksburg Standard.
“We are reaching a point in Texas where simply standing on common ground is not enough. The lives of urban and rural Texans are irreversibly intertwined, so we must all join forces to create and define initiatives and policies that conserve the common good, while protecting the heritage of private landowners.” Read more of David K. Langford's guest blog for the Cynthia and George Mitchell Foundation.
Most food growers rely on tap water to keep their plants alive during dry weather, but gardeners are discovering that chemicals in tap water harm the soil organisms that plants depend upon to absorb nutrients. As a result, more and more gardeners are storing rainwater. Read more from Sustainable Food Center.
For the past year, San Antonio City officials, Bat Conservation International, The Nature Conservancy and many other organizations and community leaders have been searching for a solution to avert a 3,500-home development over the Edwards Aquifer and adjacent to Bracken Cave Preserve. Next week, San Antonio's city council will meet to vote on whether to invest $5 million from their Edwards Aquifer Protection Program toward the purchase of the property and a conservation easement to protect aquifer recharge. Learn more from BCI.
City Council chambers filled Wednesday evening with more than 100 people who signed up to speak for or against the proposed SAWS-Vista Ridge Consortium water agreement. Individuals were given two minutes to express their views, while group representatives were allotted five minutes. Read more from the Rivard Report.
“I have never understood why in Texas zoning laws are good for city mice but not for country mice, especially as we lose more and more of the open land that is necessary to our survival as a species every year, but that is the way it is and there seems to be no way to change it until Texans get tired of seeing our state gobbled up by strip malls and truck stops and march on the state capitol armed with shotguns and pruning hooks.” Read this personal story about the Hill Country, by Lonn Taylor, featured in The Big Bend Sentinel. Learn more about County Authority in Texas here.
The public is invited to learn more about the process to develop a Roadway Character Plan for FM 150 from near Arroyo Ranch Road northwest through the Driftwood to RR 12 in Dripping Springs at an October 16 meeting. Hays County Commissioners Will Conley and Ray Whisenant are hosting the meeting to share information about the roadway and gather ideas from the public about what this important cross-county road needs to look like as changes are phased in to improve mobility and safety. Details
“..the effects of human endeavors all around the planet can be gauged by listening to the sounds of different habitats. Wild, urban, rural — they all can be interpreted.” Read more from Bernie Krause in “Call of the Wild,” featured in Sun Magazine. Find out what neighbors are doing through the Noise Pollution Clearning House.
“Through Texas Land Trends, we have been able to raise awareness that ‘Yes, we have a lot of land in Texas,’ but we are losing it at a faster rate than most other states in the country, and that loss is having profound impacts on our agricultural base, our water resources and our native wildlife habitat,” Fitzsimons said. Read more about Land Trends.
A community workshop will be held October 9th from 6–8 pm as part of a “Context Sensitive Solutions (CSS) process,” a planning approach that invites the surrounding communities and neighborhoods to influence the design, so that it reflects their cultural and historic values and aesthetic preferences. Learn more about the event hosted by the CTRMA and TxDot. Explore http://Fix290.org for more information.
HCA has released their 9th Texas Hill Country Calendar. Once again, this calendar delivers stunning photography while remaining an informative resource on Hill Country conservation. The stunning photographs featured throughout the 2015 calendar were chosen from nearly 400 submissions to HCA’s 2014 Photo Contest. Learn more
San Antonio is one step closer to buying some of the most expensive water ever sold in Texas, just as the deal is drawing more critics. Read more from Texas Tribune.
at Cibolo Nature Center & Farm on Oct. 6-11 Volunteers interested in learning about Hill Country wildlife and contributing to its scientific study are encouraged to become citizen scientists during the Wildlife Field Research “bio-blitz” taking place Oct. 6-11 at the Cibolo Nature Center & Farm. Wildlife Field Research is open to participants of all ages and skill levels. Learn more
The Highway Beautification Act will be 50 years old next year. As envisioned by Lyndon and Lady Bird Johnson, it was supposed to protect the natural landscape from billboards. Ever since its passage, scenic activists and billboard companies have been at war over the views along American highways. More from NPR.
The San Antonio Water System Board will vote Monday on a $3.40-billion landmark water deal that would pipe in 50,000 acre-feet of water to San Antonio annually as soon as 2019, enough to meet 20% of the growing city’s future water needs. Read more from the Rivard Report.
Monday’s vote by SAWS is step one, San Antonio City Council will ultimately consider and vote on the Vista Ridge Pipeline Project. Who is this water for? Where will it ultimately go? Who will ultimately pay and what are the long-term financial implications? Show up at UTSA Monday night for a balanced panel discussion. Get educated and get involved. Event details
“The 522 page draft contract for this $3.4 billion deal was posted on-line on September 23rd, giving the SAWS Board and the public less than a week to review a deal that will have far reaching implications for our community, including an estimated 16% rate hike for SAWS customers.” Read more from GEAA. As Margaret Day of the Alamo Sierra Club points out “to be sustainable, aquifer drawdown should be no greater than recharge.” Read this opinion piece from the Alamo Sierran Word.
Travis County is seeking public comments by Wednesday, Oct 1st on their Land, Water and Transportation plan. Read the plan, take the survey and/or send your comments via email. Meanwhile, CAMPO is taking comments until Oct 6th on a variety of projects including a study to construct a major tollway across sensitive preserve lands. “Traffic solution costly, harmful to environment” Read “City to oppose proposed tollroad” in the Austin American Statesmen.
The League of Women Voters of Comal Area invites the public to attend “The Trinity Aquifer: A Shared Resource/ A Shared Responsibility,” to be held October 7 in Canyon Lake. “If you drink water in Comal County, you are likely to be drinking Trinity water, or you soon will be. It is up to all of us to learn more about this resource, no matter where in Comal County we live.” Learn more
It's no secret that drought has been a major factor in the declining water levels of our lakes and reservoirs here in Texas. But there is another factor that has has received very little attention - evaporation. Read more from Texas Living Waters.
The stars may seem a little brighter over Kerrville next year. The Kerrville Public Utility Board last week set aside about $734,000 to upgrade 2,000 city street lights to “full cut-off,” high-efficiency LED lamps that won’t shine light upward. Read More from the Kerrville Daily Times.
Last week’s “Water Crisis” event hosted by The Hays County Citizens Alliance for Responsible Development (CARD) drew a huge crowd and continues to create a lot of meaningful conversations about how rural lands west of I-35 will be developed. Learn more
Even as Cibolo Nature Center staffers celebrate a major milestone with the completed restoration of the historic Herff farmhouse, they're setting ambitious new goals. Read more from SA Express-News.
Central Texas is having a pretty decent year, rain-wise. Were sitting just below normal. But these big rain events all have something in common: They really haven’t fallen where we need them most. “The watershed that helps our water supplies isn’t here in Austin; it’s way up into the counties to the north of us." Read more from State Impact.
Land fragmentation has been a growing problem for Texas, and by all appearances it isn’t going to slow any time soon. The state’s population continues to grow rapidly, and those residents have an insatiable appetite for land. Read more from Livestock Weekly.
As the current drought reminds us, water continues to impact the sustainability and growth of Texas' economy. Unfortunately, land is disappearing faster than in any other state, threatening the water resources on which our economy depends. Land conservation is a cost-effective water resource protection strategy. Join TALT October 1st in Austin.
With cool weather around the corner, the Texas Outdoor Family program has scheduled outdoor recreational workshops statewide though the beginning of December. The workshops offer a low-cost weekend trip where families can un-plug, reconnect with nature, and learn the basics of camping. Read more from Texas Parks and Wildlife.
Water marketers who want to sell to cities say there’s plenty of groundwater, however landowners and conservationists warn that this precious resource could drain in a few decades. Whats the long-term impact on the Colorado River as the groundwater table declines? Who exactly is this water for and what are they willing to pay? Read this excellent article by Neena Satija, Texas Tribune.
ACC Professor Don Jonsson takes an interesting look at various degrees of consensus about what geography is included in the “Hill Country.” His data shows Luckenbach as generally the mean center of the region and the Pedernales River Basin 100% Texas Hill Country. View his project findings, map and summary. HCA has a plethora of helpful Hill Country map resources available online and as well as an interactive map viewer.
Landowner groups and Wildlife Coops – Here’s something worth passing along to your member lists. Wild Pigs are an issue throughout the Hill Country region. Here’s an opportunity to learn from the comfort of your own ranch/home computer. Dial in September 18th to from noon to 1:00. Find out how to access this webinar made possible by the Texas Wildlife Association.
“The effects of population growth on traffic are easy to understand. More people equal more cars on the road. More cars on the road equal more congestion. Duh! The real culprit is the rate at which new people are moving here.” Read one bold Austinite's views (who happens to also be a Real Estate Developer) about the real issue facing Austin (and the Hill Country) population. Ed Wendler, Special to the Austin American Statesman.
to host a free community meeting this Thursday to discuss why water is an increasingly critical issue, and how we can all be part of improving the outlook. Speakers include Andy Sansom, Executive Director of the Meadows Center for Water and the Environment, Steve Clouse, Chief Operating Officer of San Antonio Water Systems, Ray Whisenant, Hays County Commissioner, Peter Newell, Water Resources Engineer at HDR Engineering, and Bech Bruun of the TWDB. Details
The Fix 290 Coalition, a group of over 40 organizations and businesses and 2,800 petition signers, have been advocating for a “parkway" concept to move traffic through Oak Hill and protect the original character and unique natural environment of the area for more than a decade. The City of Austin is now asking for a study of this community driven “parkway” alternative to TxDot’s traditional elevated/frontage road model. Read more from Fix290.
On Saturday, September 6th the Hill Country Alliance hosted a landowner workshop for those landowners potentially impacted by the LCRA's proposed Blumenthal substation and transmission line project. The workshop featured an update from the LCRA on the status of their application to the Public Utility Commission, and a panel discussion of landowner rights during the transmission line routing and construction process. To read a more detailed summary of the event and access speaker presentations, click here.
A decade ago, prospective water marketers easily secured the rights to pump more than 20 billion gallons of water annually from the Carrizo-Wilcox aquifer in Central Texas’ Burleson County. The company now holding those rights, BlueWater, is negotiating a $3 billion deal to send much of that water to San Antonio. Read more from The Texas Tribune.
October 29 in Austin - Great Places and Healthy People, presented by Congress for the New Urbanism - Details
October 30 in Austin - Balcones Canyonland Preserve Infrastructure Workshop - Details
November 3 in New Braunfels - 2014 ASACC & Lone Star Rail District Legislative Session Luncheon with State Representatives Donna Howard, Ruth Jones McClendon and Doug Miller - Details
November 6 in Wimberley - A Quiet Day in the Texas Hill Country: "Reflections on the Poetry of Wendell Berry," at the Red Corral Ranch - Details
November 11 in Austin - Meeting of the Austin Sierra Club - Austin Water Resources Planning Task Force with Sharlene Leurig - Details
November 15 in Johnson City - Sneak Peak Fundraiser at the Hill Country Science Mill: A fun foray into the (not-quite-finished) science museum - Details
December 5 in Smithson Valley - The Texas Hill Country Water Summit with Representative Doug Miller - Details
December 10-12 in Austin - 3rd Annual Lone Star Water Summit - Details
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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