For my boss:
My neighbor downstream built a lake by building a dam on the creek, which flows across our ranches. The lake is now encroaching on my property, is about to the top of the t-posts of our dividing fence and has caused my portion of the creek to become stagnant. I have standing water now 20-30' over the property line and all the trees in that water are going to die. What to do? Other than the standard, blow up the dam advice, anyone got any sound advice here?

Besides the standard TRO/Injunction avenue - there's got to be quite a bit of historical case/real estate law on this.

[This message has been edited by walkhome (edited 8/16/2011 9:34a).]

It is illegal to divert or obstruct the natural flow of water IIRC. Call the local NRCS office and they should know.

**without consent of all affected landowners

[This message has been edited by Max06 (edited 8/14/2011 8:55p).]

This is an issue that will actually fall under TCEQ's enforcement office. You cannot impound or divert surface water in the State of Texas unless you have a water right that allows for the impoundment/diversion. Even in cases where you do have that water right, you cannot divert water onto you neighbor.

I am not a lawyer so take that for what it's worth.

My question is who in the heck has enough water to fill up a tank right now?

ANything spring fed isnt to low at this point. Our lakes are only 2-3 feet low vs. empty.

TCEQ will be very interested to talk with your boss's neighbor.

Yep. You have to go through significant red tape to impound surface runoff, especially if it is a waterway of some kind.

Want something done now? Take matters into your own hands bust it.

Want to wait for something to maybe be done over the next few weeks/months, call the authorities.

It sounds like they didn't put any more planning into this reservoir than simply blocking the flow...

USACE. Galveston or Fort Worth office.

It is also illegal to back up water on neighbors property.

Have .50 Cal and Tannerite. Willing to travel.

Lots of wrong info on this thread ......

It is not illegal to impound water in the State of Texas - no ponds would ever get built - and in most cases you do not need any kind of permit.

The only things that get a little shakey here are:

1. You cannot back water onto anyone elses property without permission. That's a fact.

2. Putting a dam on a named creek may constitute "interfereing with the waters of the U.S.." That is U.S. Army Corps of engineers territory.

To build on B-1 83...

New legislation just made it a lot easier for land owners to impound water without needing a permit from TCEQ.

Pursue the U.S. Army Corps of Engineers on this. Section 404 of the Clean Water Act regulates the placement of fill material in waters of the United States (i.e. relatively permanent streams, and most intermittent and ephemeral streams). Building the dam across the stream would likely constitute a fill in a water of the United States. Unless he could demonstrate that it was solely for watering livestock, it would not fall under an activity exempt from requiring a permit from the USACE. Gooogle USACE Fort Worth District and click on "Wetlands/Permits" or USACE Galveston District, and go to their regulatory page.

See below.

[This message has been edited by OnlyForNow (edited 8/15/2011 8:11a).]

quote:

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Cannot impede [sic : impound] surface water flow it if is not reaching it's "final destination".

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Sure you can. For these purposes, it is assumed the pond is full - water flows through and then down stream. "Final destination" in most instances is viewed as altering the water course. In other words, water must still leave your property in the natural water course it always has.

B-1 83.

If a stream/river/creek runs through your property, you cannot impede its flow by building a dam or any other type of restraining device, unless permitted per USACE and possibly TCEQ.

If you have a hill on your property and you build a dam in a cresent shape at the bottom of the hill to catch surface water runoff then this is legal, as long as you are not doing construction within a wetland (unless you have the correct permit) and you don't push water onto an adjacent landowner.

Is this more clear?

[This message has been edited by OnlyForNow (edited 8/15/2011 8:11a).]

We might be saying the same thing, but splitting hairs ...

We do thousands of them each year. If it is not a named stream or waters of the U.S., you can get after it all you want without a permit. A stream segment, blue line on a topo, or low "draw" does not necessarily constitute a wetland or waters of the U.S. and require Corps permitting/review.

It's not like I haven't been designing, checking out, and paying for the darn things for the last 30 years ....

[This message has been edited by B-1 83 (edited 8/15/2011 8:25a).]

Texas Water Code/Section 11.086/Overflow Caused by Diversion of Water

B-1-83....the creek next to my house in Medina County was aptly named "Water Creek" I assume by the early German/Alsatian settlers. It has this name on some maps.

Does this make it a "named" creek? Or is there a particular type of map that must show the name?

BTW-This creek has dried up a couple of times in the past 3 years (like now) but never dried up at least since mid 50's. There is some development upstream where someone may be messing with the flow, I am not sure. I am lucky because I have another water source on my property but it still would interest me to know if it would do me any good to check out the upstream neighbors handling of the creek.

Not going to get in tug-of-war, but depending on what USACE District you are in, if it is a blue line on USGS maps, it is generally regulated. Just recently went through this process for a stock pond on a blue-line stream. USACE regulated the headwater stream, but we got the exemption only after demonstrating livestock-only uses.

Experience building impoundments only dates back so far from the permitting side because regs change so often. People that "do it all the time" with no permit may actually not need a permit in some instances, or may really need one and are not getting caught/reported, which does happen all the time. Most of the time, the ones that should have got a permit by the letter of the law are out in the middle of nowhere, and the event is quick and inconspicuous (not the case here). USACE districts don't have staff driving around looking for CWA violations. Violations are usually reported from Looky Lous or adjacent landowners (i.e. this case).

The USACE Fort Worth District has a list of public notices for individual permits. It is not uncommon to see large impoundments being permitted.

B1, I don't think we are splitting hairs.

This is what I do for a living, and honestly your statement about a "named creek" is 100% legally wrong in the Galveston District USACE's eyes.

Please please please please, don't just dam up anything because it's not on a USGS map or isn't a blue line.

Almost any ditch/channel feature that has a defined bed and bank (channelized) can and will now be regarded as a Jurisdictional Water of the U.S. and is subject to all applicable laws regarding any work done in them.

I don't make or agree with most of this crap, but it is my job to make sure my clients don't break the law.

Allen, the Galveston District of the USACE would classify that creek as a jurisdictional water of the u.s.

Fort Worth district would also be following closely behind, anyone who does this a lot should also know that we all (at least in Texas) have to follow the Unified Stream Modeling guidelines as well as all CWA laws/regulations.

Allen - it's likely considered a "named creek" and subject to jurisdiction by the Corps. After working in Medina County for 14 years, I can almost assure you Water Creek is waters of the U.S..

Having said that, this designation can get a little funky ..... I've seen streams one could step accross being "named" and I've seen flowing creeks with no name. Even the Corps can be a little fuzzy about what they consider as waters under their jurisdiction. We stay the heck away from the named ones and use common sense on the others before building ponds.

B-1 are you in the environmental consulting business as well?

No. I'm a G-man. My engineers tell me that the Corps really will not screw with you on livestock ponds if they are built/designed to specs. They recommend that owners check for permitting issues, but we don't mess with pomds on watersheds big enough to support independent wetlands (another issue) except under different programs. In all the years I've worked, the Corps has never messed with a landowner over a pond we built/designed.

I am right there with Only... consultant in FW District mostly. Don't agree with all of 404 reg applications necessarily, but just try to keep people out of trouble. I am often the least popular person in a meeting.

If you have a channel/ditch/dry stream or creek bed/ or bank full stream, creek, ditch or channel on your property, x feet wide and x feet deep; regardless of why it was built; if for the past 5 years it has had no Ag purpose and only now convey's rain water from your property to somewhere else (it has to run off of your property either directly or indirectly, if it terminates on your property it is 100% different than this) then you cannot stop (USACE) and technically even slow down (reduce flow - TCEQ) that flow of water legally without a permit.

The new legislation passing through the EPA and the USACE is going to give them a little wider grasp for what is jurisdictional verus what is not jurisidictional.

It has the potential to be a big stinky problem for people who don't want to break the law. If you have time and you care, comment on the new legislation!

First of all, try reading Rights to Surface Water in Texas. It will give you a better idea of your rights, as well as your neighbor's.

Now then, to expound upon some of the information in that document. Any landowner in Texas has the right to use surface water (i.e. water in a live creek, river, or stream; any intermittent creek, river, or stream, stormwater runoff, etc.) so long as that person does not, under post-development conditions, change the initial flow rate of said water onto and off of their property as it existed in pre-development conditions. If you consume water at a rate that lessens the flow rate of the water off of your property, you must have a permit to do so, unless you qualify for an exemption (explained in the above referenced document).

Be careful with anything deemed to be a "Water of the U.S." as that gets the federal bureaucracy involved.

In short, if your neighbor is flooding your property, he is in the wrong. Chances are, he just built the damn and didn't know what area would be flooded when he built it. You just might have to have some survey information to have him lower his outlet structure.

Have you tried talking to the guy, or are you looking to just report him to the authorities? If the latter, start with TCEQ. They're in charge of most of this. If they aren't, they'll pass you on to the ACoE.

My engineer says "That's what a spillway is for. You are not stopping the flow of water from your property."

I'll tell you what's real fun--Get into a landowner meeting that has an NRCS rep, someone from the Corps, someone from the state (normally TCEQ, but occasionally me for habitat issues), and an environmental consultant, AND no one can agree. I say this jokingly, but I have seen it play out several times when doing stream restoration projects. If you really want to throw a monkey wrench in the matter, have the project backed by an EPA grant.

My neighbor already had a small dam built on his property, about 50 feet from the property line, when we moved out to our place. He has since extended it even more. The dam forms a small livestock pond/tank.

When my NRCS guy was out helping me with my EQUIP documents, I asked him about the legality of the dam and was told there isn't much I can do.

It looks like there are a lot of conflicting opinions, so your best bet may be to have someone who can look at your specific case (property maps, designations, etc) and provide advice.

From another engineer ....

"From the Corps of Engineers, the answer is generally “yes”, a permit (404 permit) is required unless it falls under an exemption (i.e., a “normal” pond for livestock water is exempt). Most agricultural practices, on a farm-field scale, are generally exempt, whereas someone putting in a private water-skiing lake is not. Some of the permits may fall under a “Nationwide General Permit” and may be fairly easy to get (depending on the mood of the Corps at the time), but if a project-specific permit is required, this will literally take time measured in years and lots and lots, and lots, of consulting fees."

Now I understand the consultant end of things here ....

Yeah, I'd gladly take some of those consultant fees off their hands.