TCEQ responds to article “Takes Private Property Without Notice Or Hearing”

Texas

 

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.


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.

Advertisements

2012 At a glance.

about, Texas

Heirloom & Co.

2012 Individual Sales
10,588 acres throughout Texas.
$14,635,000 in cash sales.
Special thank you to 2012 Clients…
Commercial, Farm & Ranch, Land Evaluations 
Bank of the Hills (Central Texas)
Comerica Bank (Dallas)
Citizens Bank (Lubbock)
HCSB – Hill Country State Bank (Central Texas)
Amegy Bank (Houston)
First Victoria Bank (Houston)
Security State Bank (Central Texas)
Martin Maritta Aggregates
Kerrville Economic Development
Indianhead Ranch Inc.
Private Individuals

Asset Management: REO and Property Portfolio Management
Amegy Bank
Vineyard Trust
Durham-Hunt Trust

 

 

 

Heirloom & Co. has earned a reputation for representing and purchasing properties of distinction. With a passion for quality and uncompromising attention to detail, Heirloom & Co. focus is real estate investments worthy of passing down to the next generation. The core business of Heirloom & Co. is providing brokerage, management, and advisory services in estate properties, raw land, and commercial investments.

Heirloom & Co. is an independent brokerage and advisor, we are not affiliated with any big-box firms or franchises.  We serve our clients’ best interest and ensure the utmost privacy.

Thomas Thör Peterson

Owner-Broker
Direct: (830)285-2374
E-mail: thor@heirloomand.co

Certifications & Affiliations
TREC Indivicual Broker #528162
CCIM – Certified Commercial Investment Member-2013 Candidate
NAR- BPOR (Broker Price Opinion Resource)
AI- Appraisal Institute: General Appraiser Trainee
Texas Wildlfe Association- Member
Safari Club International- Life Member

The “Fiscal Cliff” deal holds good news for Texas conservation!

Market Analysis, Texas
ImageThe conservation of Texas’ wide open spaces, historic ranch and farm lands, and natural resources got a boost with the renewal of the enhanced tax incentivefor conservation easements in the bill passed last night. The enhanced tax incentive makes the donated  conservation easement feasible for many more of Texas’ ranchers and farmers who want to protect their lands, and in particular for those who make their living from agriculture.
It also appears that the Estate Tax will retain its current $5 million exclusion, which helps families trying to pass land down from one generation to the next. The federal Farm & Ranch Protection Program, through which landowners can sell a conservation easement, has  been  extended through September 30 when Congress must renegotiate the new Farm Bill. And finally, good news for all non-profits: Thecharitable deduction was left largely intactfor now, but with limits for higher-income donors.

Indianhead Ranch FOR SALE

FOR SALE, Texas

*SOLD 12/17/12*  The legendary Indianhead Ranch in Del Rio, Texas.

Once a well known cattle ranch owned by Lowry Mays & Red McCombs, was converted in the early 1980’s to a trophy exotic and native game estate. The ranch consists of 10,000+/- acres, all under New Zealand style electric fence and includes three miles of Devils River/ Lake Amistad frontage.

Click here for Sales Prospectus

Additional Photo Galleries of the property, click individual links below.

Lodge Gallery

Scenic Views Gallery

Exotic Game Gallery

Youth Camp Gallery

Ladies Retreat Gallery

To arrange for a private viewing of the property please e-mail Thomas Thor Peterson, Broker.

Heirloom & Co. – Real Estate Advisory Firm.

EB-5 US Investment Property

FOR SALE, Texas

The iconic Indianhead Ranch is available for purchase.

Ranch and business quailfy for EB5 US Immigration Investment visa program for foreign investors.

Click here for the detailed SALES PROSPECTUS   (For easiest navigation of presentation press the pause key on the bottom left of the screen)

Operational business with established lodge and clientele, all livestock and exotic game animals, all operational equipment,  25% mineral rights convey with sale.

The ranch consists of 9,812+/- acres, all under New Zealand style electric fence and includes three miles of Devils River/ Lake Amistad frontage.

The Devil’s River is one of the most beautiful, unspoiled rivers in Texas. It is spring fed and flows over solid limestone, so flows and depth increase as it moves downstream. Water quality is among the very best in the State of Texas.

New survey & financials available for qualifed buyers and their representation – confidentiality agreement required.

Please contact Thomas Thor Peterson, Broker,  for more information!

Also, visit the Heirloom & Co. official website for more information on their real estate advisory services.

Heirloom & Co. properties are investments that produce life long returns. We seek to earn our clients trust as independent & comprehensive real estate advisors. Providing full service analysis, brokerage, and management of real estate investments.