WATER LAW: WHAT DO PEOPLE NEED TO KNOW? Tiffany Dowell Asst. Professor & Extension Specialist – Ag Law Texas A&M Agrilife Extension (979)

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 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 The Language The Law The Agencies The Ownership The Interplay The Alternatives The Current Events

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 “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 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 “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 “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 “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 “That water is not drinkable anyway.” Desalination New production methods Agriculture Oil and gas Purchase of water rights

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” Facts: 23 cranes died, environmental groups sue under ESA. Court sided with Plaintiffs, prohibit TCEQ from issuing more permits. TCEQ appealed to 5 th Circuit. Why does this matter? Federalism principles Causation issue under ESA Limits permit issuance There are other endangered species

“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 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! Tiffany Dowell Asst. Professor & Extension Specialist – Ag Law Texas A&M University Agrilife Extension (979) Blog: