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

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Presentation on theme: "Emerging Water Rights Issues Lynn Sherman International Rights of Way Association Hot Topics in Real Estate and Eminent Domain Seminar."— Presentation transcript:

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

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

3 1950sTODAY Developed Supplies Per Capita ALMOST ON PAR WITH 50S DROUGHT

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

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

7 So, what is available? groundwater

8 Source: USGS Worldwide

9 Groundwater transfers are not a new phenomenon. TODAY, 55% of Texas population depends upon groundwater for its drinking water supply. Ground Waters Rule in Texas Economic Vitality, Natl Groundwater Assoc.,

10 Where will groundwater transfers come from? Private landowners 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 The Groundwater Stick Who owns the groundwater stick ? (i.e., the groundwater under a parcel of land)

14 God ? NO (with all due respect)

15 mankind ? NO womankind ?

16 The Federal Government ? Here comes the Tax Man NO

17 The State

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

19 The Landowner or his or her Transferee

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

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

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

23 Lets go to the books!

24 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. Requires payment to landowners for property rights in groundwater that are taken Defines groundwater as property apart from the land

26 What is the cost?

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

28

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

30 Implications

31 Source: USGS

32

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