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TCEQ takes private property without notice or hearing

By Caroline Runge Mgr. Menard County WCID #1

[Editor's note: this article appeared in the Oct. 10, 2013 issue of the Menard News. Used with permission.]

For the past couple of months rumors have been floating around that the Texas Commission on Environmental Quality (TCEQ) 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 reclassified as a navigable stream on Sept. 3.

The significance of re-classification is that the streambeds 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.

The 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 1920s and '30s, when the Federal government and the states felt that water resources [needed to be] more under government control, the definition of "navigable" underwent a series of changes.

Now a stream can be declared navigable in Texas if the streambed 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 conditions 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, McCullough 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 a dam without his having been given prior notice that the land is no longer deemed private violates all notions of due process.

Finally, there is the 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.