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water LAW: What Do People Need To Know?. Tiffany Dowell Asst. Professor & Extension Specialist – Ag Law Texas A&M Agrilife Extension (979) 845-1941 [email protected] The Biggest Ag Law Issue In Texas. Texas Legislature listed water as “a major issue” last session.

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Water law what do people need to know

water LAW: What Do People Need To Know?

Tiffany Dowell

Asst. Professor & Extension Specialist – Ag Law

Texas A&M Agrilife Extension

(979) 845-1941

[email protected]

The biggest ag law issue in texas
The Biggest Ag Law Issue In Texas

  • Texas Legislature listed water as “a major issue” last session.

  • Texas A&M University Water Initiative.

  • Survey of 90 Texas county extension agents.

    • 80 listed water as “extremely important.”

    • 73 ranked water as a top need for extension education and programming.

Knowledge is power
Knowledge Is Power

  • In order to limit risk, must first understand the risk.

  • A lot of misinformation, especially about water.

  • Education is key.

Keys to water law education
Keys to Water Law Education

  • The Language

  • The Law

  • The Agencies

  • The Ownership

  • The Interplay

  • The Alternatives

  • The Current Events

The language
The Language

“How do I measure water with a ruler?”

  • Know your audience and gauge their experience.

  • Explain terminology (i.e. acre-foot).

  • Stay away—far, far away—from legal jargon.

  • Be aware of sensitive issues.

The law
The Law

“But that creek runs across MY land!”

  • Most people do not really know the water law in their state.

  • Give a detailed explanation of the law as it applies to various types of water.

  • Laws differ among states—just because someone knows what happens in Colorado does not mean they know the law in Texas.

Texas water law basics
Texas Water Law Basics

  • State owns surface water in defined water courses.

    • A citizen must obtain a permit to use water in most instances.

    • Governed by prior appropriation.

    • Exemptions for domestic/stock ponds.

  • Landowner owns groundwater beneath property.

    • Has the right to reasonably capture and produce groundwater.

    • Major limitations: common law and Groundwater Conservation Districts

    • Exemptions for domestic, livestock, rig supply for oil and gas exploration and drilling, and mining.

The agencies
The Agencies

“I don’t care anything about railroads, I need to talk to someone about an oil well!”

  • Important to know what agencies are in charge of water.

  • Texas: TCEQ, TWDB, GCDs, ISC…

  • Try to make contacts at the agencies.

The ownership
The Ownership

“You mean it is possible to buy land without the water?”

  • People pay surprisingly little attention to deeds when they purchase land.

  • If deed is silent, know what rights pass with property.

  • People must understand what rights they own.

  • Explain the difference between ownership and rights of use.

The interplay
The Interplay

“But this is Texas!”

  • Water-related consequences of oil and gas boom.

    • Right of oil company to use water

    • Trespassing

    • Contamination

  • Eminent domain of water.

  • Environmental issues.

The alternatives
The Alternatives

“That water is not drinkable anyway.”

  • Desalination

  • New production methods

    • Agriculture

    • Oil and gas

  • Purchase of water rights

The current events
The Current Events

“Wait just a minute here, honey, you are telling me that the birds won?”

  • Few people know about current litigation.

  • Very interested at presentations.

  • Keep it simple!

  • Be sure to include “why does this matter” information for each case.

The whooping crane case
The Whooping Crane Case”

  • Facts: 23 cranes died, environmental groups sue under ESA.

  • Court sided with Plaintiffs, prohibitTCEQ from issuing more permits.

  • TCEQ appealed to 5th Circuit.

  • Why does this matter?

    • Federalism principles

    • Causation issue under ESA

    • Limits permit issuance

    • There are other endangered species

The underground trespass case
“The Underground Trespass Case”

  • Facts: EPS drills deep subsurface injection well. Rice farmer neighbors claim subsurface trespass.

  • Jury found for EPS. Court of Appeals found for farmers. Currently pending at Texas Supreme Court.

  • Why does this matter?

    • Property rights v. oil and gas.

    • Would be first recognition in US.

    • Possibility of contamination.

    • Potential for desalination.

Treaties and compacts
Treaties and Compacts

  • Texas v. Mexico

    • 1944 Treaty regarding rivers along border.

    • Mexico not providing required amount of water.

    • Political pressure, bills pending in Congress.

  • Texas v. New Mexico

    • 1938 Compact regarding Rio Grande

    • Too many diversions/new wells in NM.

    • Lawsuit filed in Supreme Court.

Thank you
Thank you!

Tiffany Dowell

Asst. Professor & Extension Specialist – Ag Law

Texas A&M University Agrilife Extension

[email protected]

(979) 845-1941

Blog: http://agrilife.org/texasaglaw