West, East, and Coastal Development Obstacles Liquid Real Estate It’s High Tide to Focus on Water! Brian C. Rider – University of Texas School of Law Robert S. Bozarth –Fidelity National Title Group Denise V. Cheney –Bickerstaff Heath Delgado Acosta LLP Neil C. Johnston –Hand Arendall LLC 1

The Root of Title: Surface Waters Rights of the US Government 1.Navigable Waters a.Tests of Navigability b.Extent of Navigability 2.The Navigational Servitude 2

The Root of Title Surface Waters Rights of the States 1.Equal Footing 2.The Submerged Lands Act (43 U.S.C §1301, et. seq.) 3.The Public Trust 3

Riparian vs Prior Appropriation Surface Waters Private Riparian Rights: 1.Access 2.Taking and Using Water 3.Fishing, Boating and Recreation 4.Constructing Docks and Marinas 5.Unobstructed View 6.Title by Accretion 4

Riparian vs Prior Appropriation Surface Waters Private Prior Appropriation: 1.First in Time – First in Right 2.Water must be Diverted to be Appropriated 3.Rights Established by Usage and Permitting 4.Independent of Land Ownership 5.Applied in AZ, CA, NE & WA 5

Riparian vs Prior Appropriation Surface Waters Regulated Riparianism Regulated Riparianism: 1.Integrates both Surface Water and Groundwater 2.States have Title to all Waters 3.Use of Water Allowed by Permits 4.Applied in AL, AK, CT, DE, GA, KY, IL, MD, SC, VA & WI 6

Riparian vs Prior Appropriation Surface Waters Evolution of Prior Appropriation Evolution of Prior Appropriation: 1.Statutes and Rules Establish Allocation Priorities 2.Domestic and other Priorities may displace Senior Rights Holders 3.Some Allocation of Instream Flows that are not Diverted 4.Applied in AK, ID, NM & WA 7

Due Diligence Surface Waters Water Supply Risks Water Supply Risks: 1.Availability, Age, Capacity and Cost of Infrastructure 2.Removal, Treatment or Reuse of Grey and Black Waters 8

Due Diligence Surface Waters Water Dispute Risks Transfers of Water Rights Flood Risks 9

Due Diligence Surface Waters Title Insurance 1.Definition of “Land” in the Policies 2.ALTA 42 Water Rights Endorsement 3.Local Navigational Servitude Endorsements 10

Groundwater Ownership Groundwater Absolute Ownership 1.The “English Rule” 2.Combines Ownership and Non- Liability Elements 3.Only Four States Still Apply it – In, ME, MA & TX 11

Groundwater Ownership Groundwater Reasonable Use 1.The “American Rule” 2.Landowner may be liable for a.Unreasonable Use; or b.Use off the Land 3.Six States Still Apply it – AL, MO, PA, RI, TN & WV 12

Groundwater Ownership Groundwater Restatement Rule 1.Nine elements considered in assessing damage 2.Location of water is not a factor 3.Applied in – OH & WI 13

Groundwater Ownership Groundwater Correlative Rights 1.Owner of Land owns water in proportion to acreage 2.Applied in – CA, NE & OK 14

Groundwater Ownership Groundwater Regulated Riparianism 1.State has title to water 2.Integration of both surface and groundwater 3.Use allowed by permits 4.Applied in AR, GA, SC, VA & WI 15

Groundwater Ownership Groundwater Prior Appropriation 1.First in Time, First in Right 2.Water must be diverted to be appropriated 3.Right may be independent of land ownership 4.Established by use and permitting 5.Applied in AZ, CA, ID, KA, NV, NM & UT 16

Groundwater 17 Groundwater Ownership Due Diligence

Overview of Other Water Issues 1.Wetlands 2.Clean Water Act 3.Environmental Protection Agency 4.Filled Lands a.33 U.S.C. §§ 21 to 59KK b.New Jersey tidelands 5.Changes in Flood Insurance Rates – Economics and Politics 18

Overview of Other Water Issues Floods a.Mississippi 2011 b.Colorado

Overview of Other Water Issues Droughts a.Texas water rights b.The Texas Drought 20

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