Who owns our rivers? In Texas, the state owns navigable streams and rivers. People may not obstruct them, drive through them, dump waste in them, or mine them – at least not without a permit. But sand miners constantly violate those laws with only slap-on-the-wrist fines that amount to another “cost of doing business.” Meanwhile, you are the one who pays the price.
Navigable Streams/Rivers Protected for Public
What does “navigable” mean? This Texas Parks & Wildlife web page describes the concept of navigability “in fact” and “in statute.” There is no precise test for whether a stream is navigable in fact. One court observed that “[w]aters, which in their natural state are useful to the public for a considerable portion of the year are navigable.”
Another link to Texas Parks & Wildlife describes stream navigation law, specifically “Private Uses, Obstructions, Bridges and Dams.”
“Since the days of the civil law of Spain and Mexico, obstructions of navigable streams have been forbidden,” the page begins. “Nowadays the Texas Penal Code, the Texas Water Code, and the Texas Parks and Wildlife Code contain prohibitions against obstructing navigable streams, and the Texas Natural Resources Code forbids unauthorized private structures.”
The Commissioner of the General Land Office has some authority to grant easements for rights of way across navigable or state-owned stream beds.
No Right to Obstruct Navigation
However, in general, no one has the right to obstruct navigation or interfere with recreation.
Parks & Wildlife Code § 90.008 states regarding Public Access: “Except as otherwise allowed by law, a person may not restrict, obstruct, interfere with, or limit public recreational use of a protected freshwater area.”
The “protected freshwater area” referred to above is defined in § 90.001 to be “the portion of the bed, bottom, or bank of a stream navigable by statute up to the gradient boundary.” That gets complicated, but generally, it means between vegetated river banks. Sand bars in a river are normally considered part of the river bed even if above water.
Prohibition Against Motor Vehicles in Rivers
In addition to the restrictions on obstruction of navigability, landowners (and the public) are generally prohibited from operating a motor vehicle in the bed of a navigable waterway (Tex. Parks & Wild. Code Section 90.002).
Prohibition Against Unauthorized Discharges
Numerous posts on this website have dealt with the legal limitations on discharging wastewater from sand mines. In general, it’s supposed to contain no more suspended solids and be no more turbid than natural levels in water upstream from the mine.
The only problem with that concept: when you have 20 square miles of sand mines in a 20 mile stretch of the river, it’s hard to find unpolluted water. In effect, the procedure/standard continually “lowers the bar” as you move downstream.
Out of Sight Makes Blight
What sparked this inquiry? As I fly up and down the West Fork, I see things normally out of public view. Such as miners’ dredge lines stretched across the river, blocking navigation. Such as trucks crossing rivers. Such as mines flushing wastewater down the river. Such as mining the riverbed, without permits or paying appropriate taxes.
Few people ever see these violations. And that has led to boldness on the part of miners. There’s little chance they will be caught. It’s kind of like speeding through a barren desert.
I have no idea whether any of the miners involved in most of the incidents below bothered to obtain permits. I do know that in many cases they have not.
Here is a small sampling of what I see from the air, month after month.
Dredge Pipelines Blocking River
Vehicles Driving Through River
Breaches Dump Wastewater into Drinking Water
Abandoned Without Reclamation
Pumping Wastewater to River and Adjoining Properties
River Mining Without Permit
Effect on Water Quality
Contributing to Blockages and Flooding
Rivers transport sand and sediment naturally. But with 20 square miles of sand mines built in the floodway of the West Fork upstream from the Lake Houston Area, miners have increased the potential for erosion 33x compared to the average width of the river. The pictures below, taken shortly after Harvey, show the results.
Please share this post with friends and family. It’s time to start getting ready for the next legislative session.
Posted by Bob Rehak on 5/30/2020
1005 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.