Thursday, April 7, 2016

From the Tyler Morning Telegraph: Texas' Water Rights May Be Endangered

For our look at public policy on the state.

- Click here for the article.

A fight between water planning groups was settled on Thursday with a 3-0 vote by the Texas Water Development Board which will ensure that the Marvin Nichols Reservoir will remain a part of the Dallas-Fort Worth region’s long-term water resources.

Region D, which includes rural northeast Texas counties, including a part of Smith County, was challenging Region C (Dallas, Fort Worth and some suburbs) for rights to Marvin Nichols.

The 75,000-acre, $3.4 billion (latest cost estimate) reservoir has been a part of the state’s water plan since 1968.

It’s just one example of how muddy property rights regarding ground and surface water in Texas are. And those rights aren’t expected to be any clearer by the end of the 84th Legislative Session, according to panelists of a Texas Public Policy Foundation discussion on the topic.

Panelists Molly Cagle, an environmental attorney for Baker Botts law firm, Bob Harden, a groundwater specialist and Colorado attorney and Pres. George W. Bush’s top water advisor Bennett Raley on Friday discussed the future of water in Texas as federal, state and individual rights intermingle.

Groundwater in Texas is tied to property rights similar to minerals underneath parcels — the doctrine of absolute ownership, Harden said. Rule of capture is similar to minerals, such as oil, which can be affected by pumping and therefore taken by one landowner from underneath another landowner’s property without recourse.

Ms. Cagle said groundwater rights had been eroding until the Legislature clarified and strengthened laws in recent sessions. Surface water is considered property of the state, which allows use by industry and individuals via permits.

The lack of clarity involves the differing interpretations of state laws by Texas Supreme Court judges and how federal laws, including the Clean Water Act and Endangered Species Act, can affect interpretations, she said.

“The concept that anything has been clarified is befuddling, because Texas property rights laws regarding water are not clear,” Ms. Cagle said.

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