The battle between a big developer and private property rights continues to rage on in Bulverde, Texas. With a grand bait and switch, the government has expanded its tactics from using the Texas Commission on Environmental Quality (or TCEQ’s) ‘waters of the state’ argument to now invoking Municipal Utility District (or MUD) authority to use eminent domain to seize the land instead. Initially, the developer sought only a wastewater permit to discharge treated sewage onto its neighbor’s land, but now they’re seeking a storm water easement using eminent domain through a little known MUD.
Why? Because the Lux family had the audacity to fight back and the developer wants the land now. Eminent domain is the means to get it fast, and landowners are generally helpless to stop the confiscation of land once they receive notice that the government will seize it through eminent domain.
This new bullying tactic started on March 18. Attorney Paul Barkhurst, representing the Johnson Ranch Municipal Utility District, notified Terrell and Pat Graham that they needed access to the Lux family property to conduct a survey in order to determine the value of the land for a storm water easement using eminent domain. It remains to be seen whether a MUD has authority over storm water. It usually involves drinking water and sewage only.
This MUD is comprised of a board elected solely by the developer. So the Johnson Ranch MUD gives this developer the ability to exercise eminent domain with impunity until enough residents become eligible to be elected to the MUD themselves. It was initially created by Comal County as a Water Improvement District then converted to a MUD. Now the county requires such districts to get their approval before exercising eminent domain, but it’s too late for such safeguards for the Lux family.
Developer using government to bully its neighbors
The Johnson Ranch MUD thinks it has the indisputable right to conduct a survey on private land to assess the value of it in order to serve the family with condemnation papers. However, a survey of the land was already conducted in 1997 when Pat’s sisters subdivided the property. That survey is still valid, since no modifications have occurred since then. So this survey is totally unnecessary and tantamount to harassment. The Grahams granted access on May 1, but the MUD wasn’t satisfied. It wants to shovel test the soil so its seeking a second survey. The bullying continued when the developer (through its MUD) slapped them with two restraining orders - the first one was overturned and the other one already stayed by the Third Court of Appeals, but at great expense to the Grahams.
Pat Graham’s family (the Lux family) have owned their ranch in the Texas Hill Country for over 100 years. It’s remained a working farm and cattle ranch, and now two Texas governmental entities are stealing their land so a private developer can discharge treated sewage from 1,500 new homes into the Lux family’s dry creek bed. When they fought it, the developer is threatening to use eminent domain through a governmental entity it controls.
Texans are supposed to have constitutional protection against eminent domain for private gain. What about when quasi-governmental entities like a developer-controlled MUD steal private property outside any perceptible public use?
The TCEQ interprets the Texas water code to consider all water that drains or collects in a channel as belonging to the state. The Lux ranch has a dry creek bed that only flows when it floods, but the state considers it a creek that belongs to them, and therefore they can discharge effluent into it (to benefit a single, private developer). See the KENS 5 news report on it here.
The amount of effluent that could be discharged would cause Graham’s dry creek bed to be continuously wet. Cattle currently graze in the dry creek bed and would continue to do so if the discharge occurs. So Graham’s cattle could be drinking treated sewage water or grazing on grass and brush that grows in the creek bed contaminated by effluent and thereby enter the food supply.
TCEQ granted Pat Graham a contested case hearing set for June 30 before the State Office of Administrative Hearings (SOAH) in Austin and agreed they have four legitimate disputed issues of fact:
• Whether the proposed permit will adversely impact use and enjoyment of adjacent downstream property or create nuisance conditions;
• Whether the discharge route has been properly characterized;
• Whether the proposed permit complies with TCEQ siting regulations found in 30 TAC Chapter 309; and
• Whether the treated effluent will adversely impact cattle that currently graze in the area.
The ultimate decision on the wastewater permit will lie with TCEQ regardless of whether or not SOAH finds that the Lux family is right on all four counts. If the TCEQ can designate this dry creek bed as waters of the state and heist private property right out from under landowners, it won’t stop with Graham’s family. Virtually any area that collects water, even areas that only collect water during occasional flooding, could become property of the state. Even worse, waters of the state on behalf of a single, private developer’s profits.
Independently of the above actions, this developer-controlled MUD can use eminent domain to seize it under the guise of a storm water easement regardless. The Grahams are between a rock and a hard place that no Texan should have to wrangle out of at their own expense.
If you’d like to contribute to a legal fund that’s been set-up for the Lux family, please mail to: Greater Edwards Aquifer Alliance (GEAA) at PO Box 15618, San Antonio, Texas 78212, or contribute online here. Be sure to write "Contested Discharge Permit" in the memo line on the check.