1. Emerging Water Rights Issues Lynn Sherman
International Rights of Way Association
Hot Topics in Real Estate and
Eminent Domain Seminar
September 8, 2006
Lynn Sherman

2. “He’s just as full of (expletive) as a Christmas turkey.
I promise you.”
Harvey Everheart
General Manager, Mesa Underground Water Conservation District,
quoted in the San Antonio Express News,
August 13, 2006

3. ALMOST ON PAR WITH 50’S DROUGHT Developed Supplies Per Capita
TODAY

4. Water Development Timeline
POPULATION
DOUBLES
IN 2050
UNPARALLELED
GROWTH
NEEDED SUPPLIES
EXISTING SUPPLIES
DECREASE BY
20%
DEVELOPED SUPPLIES
make more blue
1950’s
DROUGHT
DAM BUILDING ERA
1960’s-1980’s
FUTURE
“NO DEVELOPMENT”
PERIOD
1980’s to Date

5. of the municipal demand
“if a drought occurs in 2050,
almost half (43 percent)
of the municipal demand
could not be satisfied
by current sources.”
Water for Texas – 2002 (“The State Water Plan”), TWDB, January 2002, p. 2

6. Where will the water come from?
Most rivers are fully or over appropriated
Where will the water
come from?
Most good reservoir sites are gone
Reservoir permitting is much more difficult
Bays and estuaries need protection

7. So, what is available?
groundwater

8. Worldwide
Source: USGS

9. Groundwater transfers are not a new phenomenon.
TODAY,
55% of Texas’ population depends upon groundwater for its drinking water supply.
“Ground Water’s Rule in Texas’ Economic Vitality,” Nat’l Groundwater Assoc.,

10. Where will groundwater transfers come from? and groundwater is owned
Private landowners
Where will groundwater transfers come from?
Why?
Because 95% of Texas is
privately owned
and groundwater is owned
by the landowner

11. …and now for some legal theory…

12. The Bundle of Sticks

13. Who owns the groundwater stick ?
(i.e., the groundwater under a parcel of land)

14. ?
God NO
(with all due respect)

15. ?
mankind ?
womankind NO

16. The Federal Government
Here comes the Tax Man ?
The Federal Government NO

17. The State NO

18. who owns the groundwater under a parcel of land?
So,
who owns the groundwater under a parcel of land?

19. The Landowner or
his or her
Transferee

20. “Rule of Capture”
Gives a Vested
Property Right
to the Landowner
is a
Misnomer.
Even If There
Is No Water Well

21. It is not a willy-nilly aberration ,
but the culmination of over 1600 years
of legal precedent.

22. Can the “Rule of Capture” be modified?
YES
, but
only through the exercise
of the State’s police powers
and
not without constitutional “takings” implications.

23. Let’s go to the books!

24. Edwards Aquifer Authority Act (Act of May 30, 1993, 73d Leg. , R. S
Edwards Aquifer Authority Act (Act of May 30, 1993, 73d Leg., R.S., ch. 626, § 1.07, 1993 Tex. Gen. Laws 2350, 2356)
“The legislature intends that just compensation be paid if implementation of this article causes a taking of private property in contravention of the Texas or federal consitution.”

25. H.B th Legislature (Act of May 28, 2003, 78th Leg., R.S., ch. 1032, 2003 Tex. Gen. Sess. Laws 2979, now codified at Tex. Prop. Code Ann. §§ & )
Authorizes political subdivisions to condemn land for the purpose of “acquiring rights to groundwater.”
Defines groundwater as “property apart from the land”
Requires payment to landowners for property rights in groundwater that are taken

26. What is the cost?

27. “Water is more valuable than oil; water is life.”
Mohamar Ghadafi

29. 1,000 gallons of water $13,000 ≈ most expensive
(Source: Wine Spectator, April 30, 2003)
$11,280 = evian 82nd and Quaker)
gallons
of water
$1.83 = City of Lubbock tap water

30. Implications

31. Source: USGS