CONJUNCTIVE MANAGEMENT OF WATER RESOURCES IN THE CONTEXT OF TEXAS WATER LAW1

ABSTRACT: This paper examines the critical interaction between existing Texas water law and the state's water resources. Conjunctive use and management of interrelated water resources, though seldom practiced, is generally considered desirable. However, a significant barrier to the coordinated, efficient use and management of water resources is the legal division of water in the various phases of the hydrologic cycle into different classes and recognition of well-defined water rights in the separate phases. Several examples of the problems which relate to, or result from, present Texas water law and which prevent correlated water resource management are discussed. Any substantive revision of Texas law, particularly ground water law, will apparently be difficult to achieve in the immediate future, primarily because of the large number of recognized private water rights and the political power inherent in them. Data necessary for operation of conjunctive management systems are gradually being acquired, and perhaps someday other hydrologic phases can be integrated with surface and ground water. Nevertheless, Texas courts and the legislature have sufficient information on the interrelated hydrologic cycle so that prospective water conflicts should be anticipated and avoided. Great care must be exercised in the recognition of new types of private water rights or extension of existing rights, because this institutional structure, once established, presents a formidable obstacle to desirable revisions of the law.     

AN ANALYSIS OF PLAYA LAKE WATER UTILIZATION ON THE TEXAS HIGH PLAINS1

ABSTRACT: This paper examines the spatial, temporal and legal aspects of playa lake water utilization on the semi-arid Texas High Plains. These small basins of interior drainage collect and briefly hold an estimated two to three million acre-feet of runoff water annually, representing from one-fourth to one-third the quantity of groundwater pumped from the dwindling Ogallala aquifer. Once considered a detriment to farming operations, there is now increased interest in using playa water more effectively. At present direct pumping is the chief method of utilization, and modification of lake bottoms to concentrate runoff and reduce evaporation is the most widespread conservation practice. The use of playa water for groundwater reacharge is hampered by as yet unsolved technical problems. For many years the question of ownership of playa water remained unsettled. The Texas Water Rights Commission now classes it as diffused surface water, which under Texas law may be used by the landowner, though some legal problems remain. For play lakes to be effectively integrated into the regional water resource it becomes imperative that all present and prospective water utilization problems be identified and resolved.     

PROBLEMS OF PUBLIC ACCESS TO WATER IN TEXAS LAKES AND STREAMS1

ABSTRACT: Rapidly increasing demand for recreational use of Texas' public waters is resulting in growing conflict between riparian landowners and the public. This paper examines the public access question, certainly one of the most poorly defined and understood areas of Texas water and property law. Since the appropriation acts of the late 1800's, most surface waters are owned by the state, and are held in trust for the benefit of the people. While there is no express statutory authority giving the general public the right to use these waters, there is extensive, if often conflicting, case law recognizing such rights on navigable streams. It is equally well established that the public may not gain access by crossing private property. Definition of public and private rights is complicated by the fact that Texas land grants (with their attendant property rights) have emanated from Spain, Mexico, the Republic of Texas, and the state. Obstacles imposed by riparian landowners to public entry, use and passage, as well as spatial aspects of access, are also considered. Because public access rights are based on the peculiar circumstances of each case, it is difficult to establish general legal principles, and there is almost no reliable information to aid the recreation-seeking public. A clear legislative enunciation of public rights appears politically infeasible at present, the most immediately attainable goal lying in the area of better public education.     

VOTER REACTIONS TO THE 1976 WATER DEVELOPMENT AND QUALITY REFERENDA IN TEXAS1

ABSTRACT: Since 1957, Texans have had the opportunity to vote on eight referenda concerning the allocation of state funds for water resources development and the maintenance of water quality. In 1976, a water development amendment and a water quality amendment were presented simultaneously to the voters of Texas, affording a unique opportunity for electoral-geographic comparison of county-level returns on the two issues. In this paper, cartographic and statistical analyses of the county-level voting outcomes for each referendum are presented. In both cases, the referenda were supported by voters in water-deficient West Texas, especially those counties dependent on irrigated crop production. In contrast, urban voters and East Texans tended to oppose both amendments. However, support for the water quality amendment in the urbanized areas of Dallas-Fort Worth, Austin, and San Antonio enabled this amendment to pass statewide while its counterpart failed. The results highlight the importance of local differences in perceived water policy needs, and in doing so they illustrate that geographical anlaysis of returns from initiatives and referenda is a useful tool for understanding the locational conflicts underlying water resources and other policy efforts.     

WATERLAW AND THE HYDROLOGIC CYCLE: A TEXAS EXAMPLE1

ABSTRACT Scientists usually regard all water as merely passing through, but in different phases of, the endless hydrologic cycle. The law divides water in the cycle into several different classes. Each is treated separately and generally without consideration of interconnections existing within the cycle. Different rules of law have arisen concerning the ownership and use of each legal class. Under Texas law several classes of surface and ground water are recognized, and weather modification efforts bring yet another class, atmospheric moisture, under consideration. It is instructive to follow water moving through the hydrologic cycle in the Nueces River basin, Texas, as a framework for discussing the substantial interconnections between the various legal classes of water and the difficulties that arise from attempts to apply different rules of law to each class. Strictures imposed by Texas water law can seriously interfer with coordinated, efficient use and management of water resources, as evidenced by the Nueces River basin. Well-recognized, existing water rights in the several phases of the hydrologic cycle make change of these institutional constraints difficult to achieve.     

THE REGULATED RIPARIAN VERSION OF THE ASCE MODEL WATER CODE: THE THIRD WAY TO ALLOCATE WATER1

ABSTRACT: Lawyers, engineers, and hydrologists are accustomed to thinking of water law as falling into one of two incompatible models: riparian rights (under which water is allocated by courts according to the relative reasonableness of the competing uses) and appropriative rights (under which water is allocated according to the temporal priority of the competing uses, largely by the action of the water users themselves but perfected by the issuance of an administrative permit). Usually unnoticed is the existence of a third approach, which I have dubbed “regulated riparianism.” Under regulated riparianism, water is allocated by water permits issued after an administrative determination of the reasonableness of the proposed use before the use is commenced. This system, now in place in about half of the states east of Kansas City (plus Hawaii), thus is fundamentally different from either the traditional ripanan rights that it replaces or the appropriative rights found in western states.     

POSSIBLE DIVERSION OF MISSISSIPPI RIVER WATER TO TEXAS AND NEW MEXICO1

ABSTRACT .A summary is presented of remarks made at a conference held at Louisiana Tech University on the possibility of diverting some of the Mississippi River water to Texas and New Mexico. The Texas Water Plan which has initiated the diversion possibility is discussed and particular reference is made to the activities of the federal and state agencies directly responsible for determining various aspects of the diversion study. These agencies include the Texas Water Development Board, Texas Water Quality Board, Louisiana Department of Public Works, State Engineer's Office of New Mexico, Mississippi River Commission, and the Bureau of Reclamation.     

EFFECTS OF LAND USE AND TOPOGRAPHY ON SOME WATER QUALITY VARIABLES IN FORESTED EAST TEXAS1

ABSTRACT: Spatial variation of five water quality variables were analyzed using composite water samples collected periodically from eight small watersheds (11.4–71.6 km²) in forested East Texas during 1977 through 1980. Based on 31 observations during the four-year period the average yield of nitrate-nitrite nitrogen (NNN), total kjeldahl nitrogen (TKN), total phosphorus (PO4), chloride (CHL), and total suspended sediment (TSS) were 1.43, 21.96, 3.09, 50.11, and 90.39 ka/ha/yr, respectively. Compared to the water quality standards of the U.S. Environmental Protection Agency (1976) and the Texas Department of Water Resources (1976) for CHL, TSS, and NNN, none of the observations exceeded the limits for public water supplies. The study showed that forested watersheds normally yielded stream flow with better quality than that from agricultural watersheds. Watersheds of greater percent of pasture area, mean slope, stream segment frequency, and drainage density produced greater concentrations for these five chemical parameters in water samples. Meaningful equations were developed for estimating mean average yields for each chemical parameter for each watershed with R² ranging from 0.77 to 0.96 and standard error of estimates from 17 to 33 percent of the observed means.     

APPROACHES TO WATER RESOURCE POLICY AND PLANNING IN TEXAS1

ABSTRACT: Texas is one of the states in which limitations in water supplies could severely constrain economic growth in certain areas. The traditional planning approach for addressing this problem has involved devising schemes for large water development projects, which for many years included the importation of water from other states. Now the attitude towards water resource management is changing, and it is generally agreed that better management of existing supplies is the preferred approach. In this paper we review some of the changes that have recently occurred in Texas, including attempts to streamline the water institutions in such a way that they might be more responsive to the need for more comprehensive management of water resources statewide, with greater emphasis on social and environmental concerns.     

ADAPTING THE LAW OF WATER MANAGEMENT TO GLOBAL CLIMATE CHANGE AND OTHER HYDROPOLITICAL STRESSES1

ABSTRACT: Existing legal regimes for the management of water resources are already stressed by changing technologies and growing populations. There is little reason for doubt that today the planet is undergoing significant and even alarming climate change. In the past such global climatic changes had dramatic effects on water resource availability with disastrous consequences for many human communities. Today's climate changes can be managed without such disastrous consequences for present day communities only if there are major reforms to existing water law regimes at the local, national, and international levels. In particular, at the local and national levels, water resources must be treated as public property rather than as common or private property. At the international level, water must be managed at the drainage basin level rather than according to national boundaries that largely ignore rational water management criteria. At all levels, care must be given to decentralizing decision making and to use economic incentives insofar as possible, without, however, mistaking economic incentives for markets. The public nature of water resources precludes true markets as a significant management tool.     

THE LEGALIZATION OF GROUNDWATER STORAGE1

ABSTRACT: California's courts have recently recognized the existence of underground aquifer storage rights that permit public agencies to (1) store imported waters in aquifers; (2) prevent others from expropriating that water; and (3) recapture the stored water when it is needed. The article describes the two appellate decisions that represent the common-law development of aquifer storage rights. Each decision related to separate aquifers that were subject to separate types of groundwater management programs. One decision involved an aquifer under the southeastern San Francisco Bay area that was managed under statutory authority and is entitled, Niles Sand and Gravel Co. v. Alameda County Water District 37 C.A.3d 924 (1974); cert. denied 419 US 869. The other decision involved an aquifer under Southern California's San Fernando Valley that was managed under judicial authority and is entitled, City of Los Angeles v. City of San Fernando 14 Cal.3d 199 (1975). The two decisions provide separate, but complimentary, public interest rationales for aquifer storage rights: (1) to protect water supplies necessary for the overlying community; and (2) to increase water supply efficiencies by using natural underground reservoirs wherever practicable. The Article reviews the relationship of aquifer storage rights to conventional groundwater rights and indicates aspects of the storage right that may need additional development.     

DINOSAUR NATIONAL MONUMENT: THE EVOLUTION OF A FEDERAL RESERVED WATER RIGHT1

ABSTRACT: Dinosaur National Monument, in northwestern Colorado, has become a test case in the establishment of a federal reserved water right to instream flows. For the first time, the Interior Department was forced to rigorously defend its claims in a watershed where the federal government did not control the upstream reaches. Inadequate quantification of minimum flow requirements, court orders, and an apparent Congressional ban on the spending of Water Resources Program funds by the Park Service to quantify its water rights have already placed the Service in a difficult position to protect instream flows for maintaining the ecological integrity of the Monument. As late as 1983, administrators of the Park Service were divided over their legal strategy, many wanting to pursue a policy of claiming “natural, historic” flows rather than “minimum” flows. The conditional right to instream flows panted to the Park Service in 1978 was subject to quantification within five years. That deadline has been extended, but it is not likely that the case will reach final settlement this decade. Until the design and conduct of federal water rights quantifications better integrate public policy and law with science, the principle lesson from Dinosaur may have to be repeated.     

STATE WATER LAW REFORM: IDENTIFYING LEGAL AND MANAGERIAL ISSUES AND OPTIONS1

ABSTRACT: Statutory and case law at the state level provide critical legal frameworks for water management. As many state governments struggle to improve efficiency in water management and resolve conflicts over water usage, they must continually assess the efficacy of their state water law. Most states have water laws that are disconnected and overlapping. This article presents a methodology to assess state water law and take first steps toward a comprehensive state water resources act. The methodology is driven by issues and conflicts in water management. It synthesizes management and legal analyses into a process that incorporates the diverse perspectives of state water stakeholders. The results of the analysis are identification of management issues, profiles of state water law, and explorations of legal options that are available to the state government. Illinois is provided as a case study for this methodology.     

THE STRUCTURE AND ROLE OF RIVER AUTHORITIES IN TEXAS1

ABSTRACT: Texas river authorities are a type of large, regional water district that must be financially self-sufficient. An institutional and historical study of Texas river authorities reveals the broad power of these organizations and their influence in water management. River authorities now control 25 percent of surface water deliveries in Texas. Over two-thirds of authority water was developed by river authorities; nearly one-third was purchased from private or public ventures. While river authority activities have been effective where these services are marketable, the provision of public good services is limited. Increased visibility of these organizations is paralleled by challenges to their traditional autonomy.     

WATER MARKETING: THE CASE OF INDIAN RESERVED RIGHTS1

ABSTRACT: Water marketing is an increasing important topic for policy makers and water managers, especially in the Western United States. Indian reserved rights (or Winters rights) differ in significant ways from water rights under most state prior appropriation systems. As Winters rights are quantified, a number of issues are emerging concerning the extent to which these water rights may be marketed, particularly to off-reservation users. This paper will review the evolution of Indian reserved water rights and discuss key issues surrounding the marketing of these rights.     

REVISITING STATE WATER RIGHTS LAW1

ABSTRACT: Water resources professionals should be engaged actively in revisiting state water rights law. During the past four years, sponsored by the American Society of Civil Engineers with cooperation of other water resources organizations, over a hundred engineers, hydrologists, geographers, lawyers, administrators, educators, water users, and other persons interested in water law have been preparing a Model State Water Rights Code. Preliminary drafts of the Model Code have been considered in four states, and its provisions will be disseminated nationally to state legislators and other policy makers upon formal publication in September 1994. The Model Code gathers the best provisions from state water laws into comprehensive regulated riparian and prior appropriation provisions, includes commentaries explaining how its textual sections address water resources planning and management issues, and references similar language in current state water statutes. The goal of the Code Project is to provide materials which will assist legislators so they can enact effective, efficient, and equitable water laws. In the future, the Code drafting group will expand its efforts to develop legal guidelines for allocating shared transboundary water resources, water quality law, federal water statutes, and other water resources legal issues.     

INSTITUTIONAL FACTORS AND THE TEXAS WATER PLAN1

Among the many problems associated with the implementation of the Texas Water Plan are the institutional arrangements necessary for interstate diversions, for management of transfer systems, for allocation and sale of water, and for developing repayment capabilities among water users.     

THE IMPACT OF WATER QUALITY OBJECTIVES ON URBAN WATER SUPPLY PLANNING1

ABSTRACT: Optimal policies for supplying rapidly expanding urban centers with additional water supplies are shown to be dependent on water quality goals for the urban effluent. As effluents are required to meet increasingly stringent standards, the unit costs associated with adding capacity to existing wastewater treatment systems to renovate some waters for reuse are shown to substantially decrease. A nonlinear elimination algorithm is developed to delineate optimal policies. A model employing the technique was applied to the wastewater treatment system of a typical urban system and the water quality objectives varied. A comparison of costs with and without various levels of reuse were made and unit costs of reused water under these conditions determined.     

WATER MARKETS AND DECENTRALIZED WATER RESOURCES MANAGEMENT: INTERNATIONAL PROBLEMS AND OPPORTUNITIES1

ABSTRACT: Because of its importance and the perceived inability of private sector sources to meet water demands, many countries have depended on the public sector to provide water services for their populations. Yet this has resulted in many inefficient public water projects and in inadequate supplies of good quality and reliable water. Decentralization of water management, including the use of water markets, cannot solve all of these water problems, but it can improve the efficiency of water allocation. When given adequate responsibility and authority, water user associations have effectively taken over water management activities at a savings to tax payers. Moreover, water markets add the potential benefit of improving water efficiency within a sector as well as providing a mechanism for reallocating water among sectors. The key question involves developing innovative mechanisms for reducing the transaction costs of organizing water users and of making water trades. Water rights need to be established which are recorded, tradable, enforceable, and separate from land if markets are to operate effectively. Also, institutions are needed that effectively resolve conflicts over water rights, including third party impacts and water quality concerns.     

NEW HAMPSHIRE WATER LAW: AN INTERPRETIVE OVERVIEW1

ABSTRACT: New Hampshire's riparian water law, first modified judicially, has been more drastically changed by recent legislative and administrative action. As it stands, however, the judicially enforced doctrine of reasonable use appears to be utterly inadequate to handle increasing water demands. The protection of the public interest has imposed substantial limitations on the use of riparian water rights, all under the guise of the exercise of the police power, i.e., the protection of the public health, safety, and welfare. The efficient use of the state's water resources has been further crippled by the widespread and indiscriminate exercise of eminent domain. As a result, the state is now considering the imposition of a permit system that has the potential to streamline the allocation of water. Such a system should take into consideration the public interest factors that have recently frustrated the exercise of riparian rights and the effective use of the state's water resources.