Tiffany Dowell
Asst. Professor & Extension Specialist – Ag Law
Texas A&M Agrilife Extension
(979) 845-1941 tdowell@tamu.edu

• 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.

• In order to limit risk, must first understand the risk.
• A lot of misinformation, especially about water.
• Education is key.

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

“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.

“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.

• 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.

“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.

“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.

“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.

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

“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.

• 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

• 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?
•
•
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• Property rights v. oil and gas.
Would be first recognition in US.
Possibility of contamination.
Potential for desalination.

• 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.

Tiffany Dowell
Asst. Professor & Extension Specialist – Ag Law
Texas A&M University Agrilife Extension tdowell@tamu.edu
(979) 845-1941
Blog: http://agrilife.org/texasaglaw