Farm Ponds - When are they illegal?
Recently a landowner in the Hill Country was investigated by the Texas Commission
for Environmental Quality (TCEQ) for having illegally placed a dam in a creek bed.
The structure in question was located on West Bear Creek in Kimble County. TCEQ
states that a downstream neighbor complained that the flow in the creek was below
normal and they believed that an upstream landowner had a dam across the creek.
Upon investigation of the complaint, the TCEQ inspector found a dam structure in the
creek. TCEQ determined that the segment of the creek in question had been classified
as a navigable stream, and that a permit authorizing the structure as required under the
Natural Resources and Water Code had not been issued. The investigation
culminated with the owner of the structure being fined and ordered to remove the
dam.
This case illustrates the importance for landowners who are considering building farm
ponds for domestic, livestock or wildlife purposes to consider this issue before they
build. Generally these impoundments do not violate surface water law and don't
infringe on any downstream landowners water rights. However, since dams are not
allowed on a navigable stream unless the property owner gets a permit by TCEQ, it is
a good idea to determine how your waterway is classified before building.
Under a law dating from 1837, a stream is navigable which retains an average width
of 30 feet from its mouth up. The width measured is the distance between the fast (or
firmly fixed) land banks. The entire bed is to be included in the width, not just the
area covered by flowing water. The bed extends all the way between the fast land
banks. Landowners can check the classification of a stream in question by consulting
with the Texas General Land Office. Knowing ahead of time will give landowners
peace of mind and save them from the unfortunate circumstance and expense faced by
the Kimble County landowner who had to remove his dam.