EPA-style state regulatory taking benefits private developer in Texas Hill Country

The Commission on Environmental Quality (TCEQ) interprets the Texas water code to consider all water that drains or collects in a channel as belonging to the state. The Lux ranch has a dry creek bed that only flows when it floods, but the state considers it a creek that belongs to them.

By Terri Hall | January 13, 2014

Terrell Graham and his wife’s family have owned their ranch in the Texas Hill Country for over 100 years. It’s remained a working farm and cattle ranch, and now Texas state government is stealing their land so private developers can discharge treated sewage from 1,500 new homes into the Lux family’s dry creek bed. Texans are supposed to have constitutional protection against eminent domain for private gain, but what about land heists that don’t involve eminent domain yet are still clearly for private gain? What about when government steals private property for its own gain, outside any perceptible public use? Apparently, there is no such protection for Texans against this EPA-style regulatory taking.

Graham received a notice from the Texas Commission on Environmental Quality (TCEQ) in March of 2012 that a private developer was seeking to amend its permit for a wastewater treatment plant (or sewage treatment plant) that would have discharged only on the developer’s land to now include the Lux property. The TCEQ interprets the Texas water code to consider all water that drains or collects in a channel as belonging to the state. The Lux ranch has a dry creek bed that only flows when it floods, but the state considers it a creek that belongs to them, and therefore they can discharge effluent into it (to benefit a single, private developer). See the KENS 5 news report here.

The permit was initially for 75,000 gallons a day of effluent, but will expand to 350,000 gallons a day and up to a maximum of 1.2 million gallons a day, adversely affecting other private property owners if TCEQ approves the amended permit. That’s like 70 tanker trucks full of treated sewage being dumped onto your private property EVERY DAY. All of this sewage will be flowing downhill a few hundred feet from an elementary school.

A mechanical engineer, Graham knows equipment failure is routine and hundreds of children could be exposed to raw sewage. “I doubt parents were properly informed of this sewage treatment plant so close to the school,” Graham contends.

The amount of effluent that could be discharged would cause Graham’s dry creek bed to be continuously wet. Cattle currently graze in the dry creek bed and would continue to do so if the discharge occurs. So Graham’s cattle could be drinking treated sewage water or grazing on grass and brush that grows in the creek bed contaminated by human effluent and thereby enter the food supply chain.

Graham pointed this out to TCEQ to no avail. He received no help from Senator Donna Campbell, other state lawmakers, or from traditional allies against eminent domain by government agencies like Institute for Justice, who told Graham it was up to the legislature to police TCEQ’s actions, even though it routinely sues government agencies over threats to property rights.

The threat to private property rights cannot be understated. If the TCEQ can designate this dry creek bed as waters of the state and heist private property right out from under landowners, it won’t stop with Graham’s family. “If they get away with this, you will be next,” Graham warns Texans.

Virtually any area that collects water, even areas that only collect water during occasional flooding, could become property of the state. Even worse, the Lux family will receive no compensation for the confiscated land.

The developers are DHJB or David Hill Johnson Brothers who are already actively selling and building homes on the 750 acre site. Comal County normally limits residential homes to one per acre, but it’s allowing the Johnson Ranch to put 1,500 homes – or two homes per acre – on the site, which is a big shift away from a rural community to a suburban one for the small town of Bulverde about 20 miles north of San Antonio.

Surveys conducted by the Bulverde Chamber of Commerce have consistently shown the community wants to limit growth and keep its small town atmosphere. The Johnson Ranch wastewater treatment plant permit would not be legal under the current Bulverde city code.

‘Navigable Waters’ designation = State mandate to steal private property

In Kimble County, TCEQ designated a rancher’s creek as a stream bed of ‘navigable waters’ and therefore declared it now belongs to the state. This also typically involves a buffer of land (sometimes 100 feet wide on either side) surrounding the creek or stream that also gets confiscated. Remember, this is not using eminent domain. The government just takes it and landowners don’t get a penny for that lost property, not to mention the loss of access to the water, which can adversely affect cattle ranching and farmers. Landowners can also have daily fines imposed for any number of violations (up to $10,000/day or more).

For instance, if the agency finds so much as a soda can in the zone, it deems that pollution and can impose punitive fines. In the Kimble County incident, a Bear Creek rancher, who has had a dam on his stream for generations, was cited by TCEQ for impeding navigable waters and ordered the dam to be torn down or face fines.

Indeed, the TCEQ has sought re-designation of navigable waters to include stream or creek beds (if it’s 30 feet wide from cut bank to cut bank). Many streams have been cut that wide from flooding but may only be a trickle or even dry most of the time. In early law, when rivers served as roads and primary arteries of commerce, navigable meant a commercial boat could float in the waters and government used the law to ensure the free flow of commerce, but today that’s being perverted to conduct wholesale theft of private property by government coercion.

The implications are far-reaching. One of America’s Founding Fathers, John Adams, articulated the stakes well, “Property must be secure or liberty cannot exist.” Truly the foundation of wealth and liberty resides in private property ownership. If the government can steal your private property at will along with your water rights, then it’s stealing your wealth and freedom. Author Elizabeth Nickson details this danger to individual freedom and liberty in her must-read book co-fascists that I reviewed here. Abolishing private property is a fundamental tenant of the United Nations Agenda 21 program (a blueprint for global governance) that has been adopted by the U.S. government under the so-called sustainable development initiatives, particularly under the Obama administration.

Texans need to rise up as they did during the Trans-Texas Corridor fight and defend their property rights. If they let this abuse become precedent, the floodgates will figuratively and literally open wide, thereby legitimizing EPA-style regulatory theft of private property.

Terri Hall is the founder of Texans Uniting for Reform and Freedom (TURF), which defends against eminent domain abuse and promotes non-toll transportation solutions. She’s a home school mother of nine turned citizen activist. Ms. Hall is also a contributor to SFPPR News & Analysis.