Illegal dam reporting on the rise in Central TX, state agencies say

AUSTIN, TX (KXAN) -- After the demolition of a dam state agencies deemed illegal along the James River, the Texas Parks and Wildlife Department (TPWD) and the Texas Commission on Environmental Equality (TCEQ) both say that the number of reports of illegal dams and impoundments is on the rise.

"Central Texas, the Texas Hill Country, and north Texas are all areas where the TCEQ has seen an increase in complaints and permit," said a representative with the TCEQ over e-mail. They said this is because of an increased awareness and changes in property use.

"We have seen an increase during the drought in reporting," said Beth Bendik, a conservation ecologist with TPWD. "I don't know if that's partly due to increased awareness, you know, when the stream stopped flowing, people notice."

In October, KXAN reported on an illegal dam along the James River. The dam, built without permits from TPWD, restricted water flow in the river.

In March, TPWD approved a restoration plan to the land owner, requiring the dam be torn down and two ramps installed in its place, allowing the river to flow freely. That work was completed on April 30.

How many dams are there in Texas?

Many dams or water impoundments, like a lower water crossing, are in the state of Texas, but not visible. "There's a lot of areas where, you know, your neighbor might not see the disturbance, and no one would report it," Bendik said.

Kimberly Meitzen, an associate professor of geography at Texas State University, researches how dams and water impoundments impact the water systems of Texas. In the course of this research, she has worked with the state to inventory the number of dams currently in existence.

"If we look upstream of Canyon Dam, there are 45 registered or regulated dams within the basin. However, in reality, there's almost 900 dams," Meitzen said.

Most of these dams were built between 1950 and 1980, Meitzen said, before the federal government introduced new environmental regulations. Most are also privately owned. In Texas, the vast majority of the land is also privately owned, around 95%, Meitzen said.

How do you build a dam legally?

There are several steps a landowner needs to take before they build a dam or water impoundment. If a dam is built on waterway or stream controlled by the federal government, they must file permits with the U.S. Army Corp of Engineers and Environmental Protection Agency.

A waterway falls under federal control if it flows 50% of the time. However, most streams in Texas do not fall under this qualifier and instead fall under state control.

"One of the big challenges it's identifying, okay, is this stream actually intermittent, does it fall with by for those protections or does it not," Meitzen said. This creates a grey area between the state and the federal government.

If it does fall within the state's jurisdiction, TPWD and TCEQ regulate it.

TPWD oversees changes to riverbeds in perennial streams given in a Spanish or Mexican land grant or in what they call navigable streams. These are streams that are on average thirty feet wide at the gradient boundary.

Navigable streams are determined using a special measurement, but are not official unless declared such in court.

Permits come in weekly, Bendik said, for these disturbances. If TPWD is notified that the riverbed has been disturbed without a permit, they will begin on an on-site investigation. If a disturbance has been found, like if a dam has been built, they will then require the landowner to develop a restoration plan.

This is what happened on the James River.

"We do give them a timeline, usually within 30 to 60 days to begin initiating the removal, because we want to see the river restored," Bendik said. An extension can be issued upon request.

Penalties for building an illegal dam

If the plan doesn't meet the deadline, TPWD could issue a fine. "We have the option of penalties, usually our first goal is restoration," Bendik said.

TCEQ manages water rights in the state, which includes water impoundments. They can issue a fine of up to $5000 for building an impoundment without a permit.

TCEQ says that a dam will need a permit if it:

• The impoundment is located on a watercourse. A watercourse is a channel where water flows within a defined bed and banks. The water does not need to be constantly flowing for the stream to be a watercourse.
• The impoundment has a normal storage capacity more than 200-acre feet of water.
• Is taller than six feet in height.

There are exceptions to this. If the dam holds less than 200-acre feet of water, is on a person's private property, and is used only for domestic and livestock purposes or is used for fish and wildlife management, then it does not need a permit.

If you think there is an illegal dam in your area, there are a few avenues you can pursue.

You can notify TPWD's sand and gravel division by emailing them at sand.gravel@tpwd.texas.gov.

TCEQ has a website dedicated to environmental complaints. You can file complaints here.