Sharing the Common Pool: Water Rights in the Everyday Lives of Texans
240
Sharing the Common Pool: Water Rights in the Everyday Lives of Texans
240eBook
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Overview
The origins of Texas water law, which contains elements of the state’s Spanish, English, and Republic heritages, contributed to the development of a system that defines water by where it sits, flows, or falls and assigns its ownership accordingly. Over time, this seemingly logical, even workable, set of expectations has evolved into a tortuous collection of laws, permits, and governing authorities under the onslaught of population growth and competing interests—agriculture, industry, cities—all with insatiable thirsts.
In sections that cover ownership, use, regulation, real estate, and policy, Porter lays out in as straightforward a fashion as possible just how we manage (and mismanage) water in this state, what legal cases have guided the debate, and where the future might take us as old rivalries, new demands, and innovative technologies—such as hydraulic fracturing of oil shale formations (“fracking”)—help redefine water policy.
To learn more about The Meadows Center for Water and the Environment, sponsors of this book's series, please click here.
Product Details
| ISBN-13: | 9781623491703 |
|---|---|
| Publisher: | Texas A&M University Press |
| Publication date: | 03/20/2014 |
| Series: | River Books, Sponsored by The Meadows Center for Water and the Environment, Texas State University |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 240 |
| File size: | 36 MB |
| Note: | This product may take a few minutes to download. |
About the Author
Read an Excerpt
Sharing the Common Pool
Water Rights in the Everyday Lives of Texans
By Charles R. Porter Jr.
Texas A&M University Press
Copyright © 2014 Charles R. PorterAll rights reserved.
ISBN: 978-1-62349-170-3
CHAPTER 1
THE UNIQUE CHARACTERISTICS OF WATER AND WATER RIGHTS IN TEXAS
Determining a water right in Texas depends on which of three geological containers holds the water. The first container is surface water, or water that flows on the surface of the ground in a watercourse. The State of Texas owns the water in a watercourse. The assessment of what makes up a watercourse can be complicated, so the safest way to look at ownership of surface water is to consider all water flowing in any stream or area with bed and banks to be surface water. Surface water is not yours to own but, except in unique situations, is owned by the State of Texas. Knowing this may save you many dollars in fines and hours of angst. If you have a question about surface water ownership on real property you own or are considering purchasing, ask the Texas Commission on Environmental Quality (TCEQ) for a determination.
The second geological container is known as diffused surface water, or rainwater that runs off your roof or over the surface of your land without flowing in a stream or channel. The water in this container is owned by the landowner.
The third container is groundwater, or water held underground in aquifers and pools. Ownership of groundwater in Texas was debated for many decades, but in the fall of 2011 the debate ended for all practical purposes when the Texas legislature passed a bill (generally known as Senate Bill 332 by Fraser), which states, "The legislature recognizes that a landowner owns the groundwater below the surface of the landowner's land as real property." The bill was signed into law by Governor Rick Perry, effective September 1, 2011.
WATER EXISTS IN A CONJUNCTIVE STATE AT ALL TIMES
Water is the ultimate example of an element of nature that exists in a conjunctive state. Surface water, diffused surface water, and groundwater are, have been, or will be ultimately in union with one another; water exists in a conjunctive relationship in all three geological containers all the time. Diffused surface water feeds both surface water and groundwater. Groundwater feeds surface water both in the underflow and via natural springs. As water flows downhill above or below ground, the containers feed and deplete each other visibly and invisibly. This conjunctive relationship is a key concept that must be grasped in order to understand water rights in Texas. This law of nature, when applied to water ownership in Texas, complicates the debate since even with modern technology we cannot yet "see" underground.
Another fundamental concept about water that prudent policymakers should keep in mind is that it ignores political boundaries. Setting workable public water policy based upon surface political boundaries and not upon the boundaries of the common pool of water in a given river basin, watershed, or underground aquifer is problematic. The water one user draws from a common pool affects the other users of that common pool, much like sharing a milkshake with your sibling while using separate straws simultaneously.
THE HYDROLOGIC CYCLE
Every human being, creature, and plant on earth shares a common pool, draws from it all the time, and is utterly dependent upon it for existence. Water is the "common denominator" of all life on earth. Water exists in one constantly churning hydrologic system. Kirk Holland, general manager of the Barton Springs/Edwards Aquifer Conservation District, describes this cycle and the challenge it creates for humans: "God made one hydrologic system in Texas—where precipitation, groundwater, surface water, and the bays and estuaries are all interconnected such that changes in one affect the others, on varying time scales. So we humans should also create a water resource management system that integrates all those components, even though each has its own differing characteristics. That task requires a level of perfection that humans so far have been incapable of achieving." The water in this common pool is in constant motion and relentlessly seeks a downhill path to the ocean on the surface and below the ground. Water in its hydrologic cycle changes from gas to liquid to solid effortlessly and with absolute reliability, like the earth's other constant we can rely upon—gravity.
Human use of water affects the hydrologic cycle, usually quite drastically. Water is in constant motion flowing through this cycle. As water moves through the cycle in Texas, its ownership continuously changes.
OWNERSHIP OF A WATER MOLECULE IN TEXAS
Imagine tracking one water molecule in various stages in the hydrologic cycle in Texas. As the water flows through the cycle, rights to this water molecule change between private and public ownership. The fugitive nature of the molecule is a root cause of some of the confusion over water rights in Texas. For example, when the water molecule comes to a landowner's property via a rain shower and does not enter into a watercourse, then this water molecule is owned by the private landowner and is considered diffused surface water. If that same water molecule percolates into the soil before it evaporates to join the gaseous stage of the hydrologic cycle, it becomes groundwater, which is also owned by the private landowner. However, if and when the same water molecule runs off the landowner's property and into a watercourse or stream, thereby becoming part of the flow, the molecule enters the geological container known as surface water and is owned by the State of Texas. Even when landowners have an adjudicated right to surface water in Texas, they hold only a "usufruct" right, or a right to "use" surface water, not to own the surface water itself.
Natural springs are the most cherished and by far the most visible intersection of a water molecule's change in ownership as it flows through the cycle. While the molecule is in the ground before it emerges from a spring, it is groundwater owned by the landowner. When the water molecule emerges from the spring into a pool without running into a watercourse or stream in Texas, the water molecule remains the landowner's property. Once the water molecule emerges from the spring and flows into a watercourse or stream, the State then owns it. The significance of the one water molecule example is that water exists in a conjunctive relationship, resulting in an ever-changing chain of title in Texas. As former Texas attorney general and Supreme Court justice Will Wilson, an expert on water rights in Texas whose expertise and keen thinking on water has never been given the credit it deserves, said, "Both legislative and judicial attempts to engraft workable property concepts upon the hydrological cycle have encountered what initially appear to be insuperable difficulties. The first of these is caused by the physical fact that water in its natural state is in constant motion and is not subject to branding or other identification. Claims of property ownership are usually noted by fences, gates, locked doors, and other tags. Water's ownership is difficult to successfully identify as it travels through the hydrological cycle in Texas."
Water also responds instantly to the pressure of a water well pump. In the illustration, the water well appears to be outside the underflow of the stream; however, the impact of the water pump on the groundwater table causes the water molecules in the groundwater and the stream to flow toward the pump. In fact, stronger pumps create a cone of depression at their lowest point, causing even greater flow into the well casing and potentially depleting the other sources. In the illustration, did the privately owned water well take some of the state-owned stream water? Without doubt, it did. The illustration indicates the difficulty in determining ownership of water due to the conjunctive relationship between geological containers. In other states where all geological containers of water are owned by the state, this confusion is eliminated; these states still face conflicts over water allocation and other issues, but the basic ownership issue is rarely in question.
Water wells can drastically affect surface and spring water many miles away from the actual water wells, as we learned from the drying up of Comanche Springs in Fort Stockton. Comanche Springs draws, or did draw, its water from the Trinity Sands. The farmers and ranchers south and west of the springs tried to save their livestock and crops by drilling wells into the same Trinity Sands during the terrible drought of the 1950s. Comanche Springs fed Comanche Creek, from which farmers held appropriative rights for irrigation of their crops. When the farmers and ranchers drilled their wells, Comanche Springs dried up, which caused Comanche Creek to dry up as well. The courts determined that the irrigators on Comanche Creek were due no compensation from the farmers and ranchers. Until the water molecule emerged from the ground into Comanche Springs and then ran into Comanche Creek, it was for the taking without liability to water well drillers.
TEXAS WEATHER AND DROUGHT
Texas is a border state not only on the ground but also in the atmosphere; our weather constantly changes as the southeast prevailing winds off the Gulf of Mexico meet other winds from the north. We seem to have either floods or droughts—there is nothing normal about Texas weather.
Water is a scarce resource in most areas of Texas west of Interstate Highway 35. Future predictions of population growth coupled with inevitable recurring droughts surely will make per capita availability of water scarcer still. One of the worst droughts on record is commonly referred to as the "50s drought," which devastated many areas of Texas from 1950 to 1957, as shown graphically in the Palmer Drought Severity Index (PDSI) chart. As Elmer Kelton put it, "It crept up out of Mexico, touching first along the brackish Pecos and spreading then in all directions, a cancerous blight burning a scar upon the land. Just another dry spell men said at first.... Why worry? they said. It would rain this fall. It always had. But it didn't. And many a boy would become a man before the land was green again." Rural landowners know that rainfall is fickle—so fickle that it can rain on the upper pasture, and the lower pasture just a few hundred yards away can be dry as a bone. It is interesting to study public policy decisions made based upon need and public reactions to the pain of drought at any one time period shown on the index; rainfall or the lack thereof resulted in many famous court decisions and at times was and still is the cause of drastic public reaction.
The chart demonstrates drought conditions in the same location in the San Antonio area from 1900 to 1979. Notice the severity of the 1950s drought. A century earlier in the 1850s, Texas also suffered severe drought. Throughout Texas at that time, farmers lost crops and were forced to default on mortgages.
A True Tale of Drought in the 1850s
A victim of the terrible drought in the 1850s was a man in Seguin who would by the end of the nineteenth century become one of the wealthiest men in Texas, George W. Brackenridge. A young man in his twenties at the time, Brackenridge lost a league of land (4,428.4 acres) to foreclosure because the drought destroyed farm crops on the land. Brackenridge purchased the land on terms, subdivided it, and then sold the tracts to farmers on terms. When the farmers' crops failed, they could not make their payments to Brackenridge, causing Brackenridge to default on payments to the holder of his note. Brackenridge lost the entire property in foreclosure. He left Seguin a financially broken young man. In fact, he was so broke that he had to walk back home to his parents' house in Texana, near today's La Porte, behind his mule-riding cousin, J. J. Thornton. The lessons Brackenridge learned about water's overwhelming impact on land value etched themselves indelibly into his mind and became the key consideration in most of his business decisions involving land purchases and land lending for the remainder of his life. Brackenridge's purchases of tracts in San Antonio and Austin were located on the San Antonio River and the Colorado River, respectively, due to his experiences in Seguin.
The Drought of 2010–2011
Severe drought raised its ugly head yet again in the spring and summer of 2011 across Central and South Texas; it just simply stopped raining. In Wilson County, the location of my family farm, we had no rain at all for six months. The even more difficult problem in Wilson County was the lack of almost any kind of moisture; the hot prevailing wind from the southeast dried out and shrank even the 80-year-old siding on our 1926-era farm house. Outdoor burn bans lasted for months. We were all frightened daily that a spark carried by the wind would start a wildfire that would char the entire county.
The drought resulted in one of the most devastating fires in Texas history, the Bastrop fire of September and October 2011. The fire was caused by wind moving power lines at condenser banks that sent sparks and embers onto dry tree debris on the ground. The debris, shrubs, and trees were so dry they were very near their kindling point and quickly ignited. The fire ultimately burned some 34,000 acres. I viewed the monstrous size of this fire from 30 miles away on Red Bud Trail in Austin. The Frost Bank Tower in downtown Austin was dwarfed by the huge smoke cloud generated by the fire—and let me stress again—my view was from 30 miles west of the fire. Including the smaller saplings that burned, as many as a billion trees were destroyed in this fire alone. Earlier that summer fires raged all over Texas; at one time in June, there were 185 simultaneous ongoing wildfires in East Texas alone. By the time of the Bastrop fire, these fires stretched firefighting capabilities to a limit Texans had rarely experienced.
The 2011 drought in Texas was more severe than that in any one year in the 1950s drought. Newspapers, the Internet, blogs, along with television and radio stations, filed daily reports with stories of terrible calamities the drought caused throughout the state. The fires awakened an entire generation of Texas homeowners to the risks and consequences of severe drought that before were generally considered to be only a yearly risk to and tragedy of the homeowners in the California hills. At the time of the Bastrop fire in September, there were still more than 100 other active wildfires across Texas, including some of the June fires in the eastern portion of the state that were still burning.
The illustration shows annual rainfall across Texas. This wide variance in rainfall levels creates a special problem for water policymakers in Texas. In the words of Tom Hatfield, "The worst drought in Beaumont's history could very well set a record for annual rainfall in El Paso."
CHAPTER 2WATER RIGHTS AND WATER LAW IN GENERAL
Water needs to be viewed as more than an economic resource. This is an appropriate change in thinking for a number of reasons. First, water's life-sustaining function sets it apart from a mere economic commodity. Second, although water is often treated as a property right, water does not fit well into a property construct.
—Amy Hardberger, St. Mary's School of Law
What is a "water right"? According to the Texas Water Code, state-owned water is "a right acquired under the laws of this state to impound, divert, or use state water." A more thorough definition is a "right or group of rights designed to protect the use, enjoyment, and in some cases, ownership of water that travels in streams, rivers, lakes, and ponds; gathers on the surface of the earth; or collects underground."
It is very important to keep in mind that water is "fugitive" by nature; that is, it is in constant motion everywhere, even underground. Due to its fugitive nature, water presents a unique ownership problem as described by Sir William Blackstone in 1807: "For water is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary [sic], property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it." Property ownership includes a bundle of rights, one of which can be a right to water.
(Continues...)
Excerpted from Sharing the Common Pool by Charles R. Porter Jr.. Copyright © 2014 Charles R. Porter. Excerpted by permission of Texas A&M University Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Contents
Foreword, by Andrew Sansom,Acknowledgments,
Introduction,
PART ONE: NATURAL WATER, HUMAN RULES,
1. The Unique Characteristics of Water and Water Rights in Texas,
2. Water Rights and Water Law in General,
PART TWO: WHO OWNS WATER?,
3. Water: State Owned,
4. Water: Privately Owned,
5. Water: Shared Ownership,
PART THREE: HOW IS WATER USED AND REGULATED?,
6. Supply and Demand, Today and Tomorrow,
7. How We Use Water,
8. Who Regulates Water Use?,
PART FOUR: HOW DO WATER RIGHTS AFFECT REAL ESTATE TRANSACTIONS?,
9. Water and Everyday Real Estate Transactions,
PART FIVE: WHAT SHOULD GUIDE WATER POLICY: "THE COMMON GOOD" OR PRIVATE RIGHTS?,
10. Public Policy Debates in the Recent Past,
11. Public Policy through the Crystal Ball,
Epilogue,
Appendix 1. Significant Court Cases concerning Texas Water Rights,
Appendix 2. Government and Other Resources,
Appendix 3. Texas Supreme Court Cases and Other Significant Texas Cases,
Notes,
Glossary,
Bibliography,
Index,