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The Cutoff at the state-owned right-of-way where an unpermitted private fences blocks historic access. Photo courtesy of TRPA board member Alexander Neal.

Save the Cutoff sues Henderson County over access to the Trinity River, sends Notice of Intent to sue landowner under the Clean Water Act

Note: this press release was originally published by Perales, Allmon & Ice, P.C. on January 9th, 2023

Save the Cutoff, an organization of fishermen and families in the Henderson County and Navarro
County area, took legal action Monday to seek to restore access to public waters in Henderson
County for fishing.

The infamous fence at The Cutoff, erected on illegal material from the riverbed. The material was dredged from and dumped in the Nation’s navigable waters, without 404 permits from the US Army Corps of Engineers, which Perales, Allmon & Ice, P.C. intends to file citizen suit over, under the Clean Water Act. Photo courtesy of TRPA board member Alexander Neal.

The Cutoff is a body of water along the natural bed of the Trinity River, which has historically
been recognized as a public water, and where community members have enjoyed fishing and
recreation for more than 100 years. For many years, access to the Cutoff was provided by a
County Road extending to the Cutoff. In 2006, a private landowner blocked that road, and the
public afterward would access the Cutoff by using the right-of-way for another County Road. In
2022, a landowner illegally placed a fence marked “NO TRESPASSING” that blocked that means
of access for those unwilling to climb over this fence. This left the public with no effective means
of accessing the Cutoff.

On Monday, Save the Cutoff filed a lawsuit in Henderson County which would require that the
Henderson County Commissioners Court, and the County Commissioner of Precinct 1, to comply
with their duty to maintain the County Road providing access to the Cutoff, including requiring
the removal of illegal private obstructions of that roadway. Save the Cutoff also sent a notice
letter of its intent to bring a citizen suit under the Federal Clean Water Act with regard to the
illegal fill placed in public waters for the construction of the fence blocking access to the Cutoff.

Dustin Baker, President of Save the Cutoff, commented that, “The Cutoff has been used by
generations as a beautiful spot for fishing and gathering with friends. We simply want to continue
that tradition with our own children. Our organization has attempted for almost a year to work
with the County, the Landowner, and several state agencies to restore access to the Cutoff, but
none have acted. So, we have found it necessary to initiate legal proceedings to restore that
access.” Eric Allmon, with the law firm of Perales, Allmon & Ice, P.C., noted, “In 2015, Texans
adopted a Constitutional Amendment affirming what has long been the public right of Texans to
fish in public waters. The roadway at issue in this lawsuit is a public road intended to provide
access for people to exercise that right, which the Texas Department of Transportation identifies
as a road requiring County maintenance. But, unfortunately, the County has neglected to meet
its responsibilities. The suit filed [Monday] merely asks the County to do its job.”

Mr. Allmon continued, “The United States Army Corps of Engineers has previously notified the
landowner that the placement of fill in this area is a violation of the Clean Water Act. Yet, the
Landowner has continued to violate federal law, resulting in further denial of public access to the
Cutoff. By sending a notice letter of our intent to file suit under the Clean Water Act, we have
initiated the process to pursue this issue in federal court unless the problem is corrected.”

Dustin Baker may be contacted at (903) 477-0041.
Eric Allmon may be contacted at (512) 469-6000.

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