What’s the Dam deal?

By Carly Barton, Attorney & Counselor

As Texas continues to grow and water becomes scarcer, more landowners look for solutions to keep water on their properties. Putting a dam on your property can be the answer to preserving water, but complicated regulations can be difficult to navigate. Federal, state, and local governments can all have a say in the construction of a dam.

Under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899, the United States Army Corps of Engineers (USACE) is tasked with the regulation of discharges of dredged or fill materials into water of the United States or work in navigable waters. With this authority, the USACE issue permits based on the amount impounded and intent for the use of the water. This could be an easy or complicated process, depending on the project.

In Texas, “water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake… the storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the state is the property of the state” (Section 11.021(a) of the Texas Water Code). This means that in order for a landowner to use, store, or divert state water, he or she must obtain a permit from the Texas Commission on Environmental Quality (TCEQ). Determining whether a stream is navigable is an important step to figuring out what permits a landowner might need, but with varying statues and legal definitions, it is not always a clear process.

If the stream is not navigable, then it is owned by the private landowner. Luckily, if the stream is not navigable, there is an exception to this permitting process for a dam that is up to 200 acre-feet in size and is used for domestic and livestock purposes. (See Texas Water Code Section 11.142.)

If you’re going to build a dam on your property, you will also likely be digging in a stream bed. If so, you will also need a Sand and Gravel permit through Texas Parks and Wildlife (Parks & Wildlife Code § 86.001).

Last, but not least, the local level authorities also have permits in place that you must consider. Counties require development permits for construction projects, including new dams or repairs to old ones. Many times this means dealing with the county’s floodplain administrator to ensure that your structure will not change the Federal Emergency Management Agency’s (FEMA) floodplain maps or greatly affect a Special Flood Hazard Area. The help of a Texas Registered Professional Surveyor, Engineer or Architect comes in handy in this process.

As you can probably tell, the navigability of the waterway through a landowner’s property is an important factor to determining which permits are necessary. In our next blog, we will discuss the ever-changing meaning of this word and what that means for your next dam project.

If you have questions or would like to speak with a Braun & Gresham attorney regarding your dam project, please give us a call at (512) 894-5426, or email [email protected]

Call Now