TCEQ takes private property without notice or hearing

Link to article here.

TCEQ Takes Private Property Without Notice or Hearing
By Caroline Runge
Manager, Menard County Water Control and Improvement District No. 1
Wednesday, October 23, 2013

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 has 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 reclassification 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 giving the 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.

FYI. This is TCEQ’s response to the initial op-ed printed in the Menard paper.

TCEQ: 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 “re-classify” the stream segment as indicated in the article. Rather the TCEQ was simply verifying the existing navigability status of the segment as part of 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 re-classification of navigability status, and no taking of private property occurred.

TCEQ Executive Director  Zac Covar has found fault with my characterization of agency action on Bear Creek, saying they had “found” that Bear Creek was navigable, not that they had “reclassified” it as navigable. The effect on the landowner is the same:  his creek bed has been “found” to be state property and the public has access to it.

Not only that, but the agency is planning to “find” more creeks navigable, since they have been checking maps and records at the General Land Office (GLO) for creeks in Menard, McCulloch, Mason and Kimble County - the western Hill Country, as it was characterized to me by GLO staff.
There are several procedural problems with this: (aside from the dubious authority of the TCEQ to unilaterally determine that a creek is navigable).

1) Under Texas statute a waterway is navigable as far up from the mouth of the stream as it averages 30 feet wide. It is not a simple matter to determine whether a waterway is navigable - there have been some cases in which a court has found that a waterway was navigable where it was wider some distance up the stream than it was at the mouth. Ultimately the GLO and the courts have to make the decision if the assertion of navigability is challenged.

2) It would seem that minimal fairness and due process require that the landowners along a stream be notified by certified mail that their creek, which up to now has been assumed to be nonnavigable, has been “found” to be navigable. In this case the landowner only learned that his creek had been “found” to be navigable when he was issued a citation, fined for having an “illegal” dam (which had been there for several generations) and ordered to tear the dam out within days.

3) “Finding” creeks and streams on private property to be navigable is going to have a devastating effect on real estate values in this region, and may subject some realtors to litigation. People buying land for recreational purposes are not going to want to acquire property that is subject to free access by the public. They are buying it for their own quiet peace and enjoyment, and don’t want to have any and everybody entitled to come onto it for “fishing, camping, boating and, in general, any other activity that is legal” as described in the section on navigable streams on the TP&WD website. To say nothing of the well-documented problems landowners have had with people poaching on their properties from the streambeds of navigable rivers.

The objective of the TCEQ appears to be getting rid of dams on creeks to get more water downstream. They take advantage of a complaint by a downstream landowner about an upstream dam to make this “finding”. The downstream landowner often doesn’t realize he is shooting himself in the foot, since his part of the stream will also now be accessible to the public.

If the TCEQ is not willing to adopt regulations requiring that:
1) There be a public hearing in the county where a stream is located which the agency proposes to “find” to be navigable, before any regulatory action is taken based on the navigable status of the stream
2) that they be required to file in every county the exact extent of the area that has been “found” to be navigable, so landowners are on notice that they are liable for regulatory activity and cannot  eject trespassers from their stream beds; and
3) there be procedural requirements that they notify a landowner of the newly “found” status of his stream bed at least thirty days before they  may issue any citations for violations based on the navigable status of his stream. This would give the landowner a chance to challenge the finding of the TCEQ that his creek is navigable or to take action to avoid fines and compliance requirements.

Then legislation requiring these landowner protections should be passed.

The “navigability servitude” was a judicial doctrine that came into being in the early days of the United States to give the Federal government authority under the Commerce Clause of the Constitution to restrict the building of obstructions in rivers, back in the days before railroads and highways when rivers were the principal means of transporting goods, logs, etc. from one place to another . It is ludicrous that the doctrine has been stretched over the years to gain state control over rural creeks and streams that can’t float anything larger than a canoe –and often not that.

I think those counties that are going to be seeing negative impacts on their economies from these “findings”  of navigability should think about filing local legislative bills to declare nonnavigable all streams in the county that have not previously been declared navigable by a court.

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