Texas water law, McPherson & Associates, PC

The Difference Between Whiskey and Water
Water Regulation
Groundwater Conservation Districts
Certificates of Convenience and Necessity
Water Supply Corporations and Other Retail Water Suppliers
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THE DIFFERENCE BETWEEN WHISKEY AND WATER

Statistically speaking, one out of every one human requires water for survival. Perhaps that’s why whiskey’s for drinkin’ and water’s for fightin’. Fight to get it, fight to keep it, fight for your right to sell it or drill for it, or to keep others from selling or drilling for it. Whatever your predicament, whichever side of the fight you’re on, we can help you fight about water.

While these fights don’t involve the OK Corral (yet), fights over water take place in a location, or forum. Knowing where to fight is key. It could be before a groundwater conservation district, water supply corporation or other water supplier. It could be before the Texas Commission on Environmental Quality or in a contested case before the State Office of Administrative Hearings. In some extreme cases the fight spills over into the Texas Legislature, because there is a political aspect to water.

All of these forums have rules set locally and/or by state statute. Some are formal; some are informal. But the most basic of all rules is simple: don’t bring a knife to a gunfight. And remember this. Just because someone has on a zebra-striped outfit does not necessarily mean they are a neutral referee.

Our principal attorney, Mark McPherson, earned his undergraduate degree in Political Science and worked with the Tennessee State Senate for two years. He chaired the Real Estate Legislative Affairs Committee of the Real Estate, Probate and Trust Law Section of the State Bar of Texas for the 79th and 80th Legislatures, and continues to provide political expertise to that committee. He is a frequent speaker at, and serves on the planning committee for, the continuing legal education seminar The Changing Face of Water Rights in Texas sponsored by the State Bar of Texas. He is knowledgeable and battle tested in fighting over water.

WATER REGULATION

Texas utilizes two main state agencies to plan, direct and manage its water resources, the Texas Water Development Board (TWDB) and the Texas Commission on Environmental Quality (TCEQ). There is occasional overlap in jurisdiction, but generally they are concerned with different areas of water resources. A general rule of thumb is this: if your concern has to do with planning water infrastructure to meet estimated and desired water needs, including the estimation of those needs and water conservation requirements, start with the TWDB. For everything else, there’s the TCEQ.

But just because your fight is about water service doesn’t mean your forum is the TCEQ. Often, a water use restriction can be traced to the water planning process. Texas is between a rock and a hard place when it comes to meeting current and future demand, in that demand is increasing while supplies are decreasing. If you are of the opinion that rains will solve this problem for us, please feel free to take up Ark Design and Construction 101, in which case you may want to start with Genesis 6:14-21 (i.e. Noah and the ark) as your beginning point.

If Texas does not solve this problem, the state will end up with a “self correcting” system, meaning the lack of water will chase away those who depend on it, from people, to businesses, to animals, until those left can be supported by the available water supply. Dell Computers, General Motors, Toyota, Radio Shack, Dr. Pepper/7UP and other businesses have no desire to locate employees in a desert with no water. Farmers cannot raise crops, ConAgra cannot process produce, butcher shops will have no inventory of steaks. A continuous and adequate water supply is an absolute necessity to a vibrant economy.

Less water per person can only mean there will be more regulation in the future over water, with more emphasis placed on water rights and the exploitation of those rights, which means more fights over water rights.

GROUNDWATER CONSERVATION DISTRICTS (GCDs)

We represent landowners in their relationships with Groundwater Conservation Districts (“GCDs”). GCDs manage the groundwater in their defined area. They adopt a management plan and rules that may govern such things as water well spacing, well production, permitting (including the controversial historical use permits), and transfers of water out of the district. GCDs are generally governed by their enabling statutes and Texas Water Code Chapter 36.

In 2005, the Legislature passed House Bill 1763, which added many new notice and procedural due process requirements to the rulemaking process undertaken by GCDs. As GCDs become more regulated and their operations and rulemaking more restricted, landowners end up with more rights. And with more rights comes more opportunities for fights.

CERTIFICATES OF CONVENIENCE AND NECESSITY

We also represent landowners and developers in their relationships with holders of Certificates of Convenience and Necessity (“CCNs”), as well as assisting CCN holders in obtaining, amending or terminating their CCNs, and otherwise meeting their regulatory requirements. This area is particularly filled with hostility between landowners and the CCN holder. Many of these fights start when the CCN holder can’t (or won’t) provide adequate water service to the landowner. If you are considering purchasing land in a CCN certificated area, you owe it to yourself to conduct appropriate due diligence on the ability of the CCN holder to provide adequate water to the tract of your desire.

The law and regulations affecting CCN holders and landowners situated in a CCN holder’s service area changed substantially in 2005 with the adoption of House Bill 2876. House Bill 2876 was 22 pages long, and it spawned regulations that ran 29 pages in the Texas Register. Those regulations resulted from comments that totaled something in excess of 250 pages, including a few by this law firm.

Historically, landowners had very few rights to receive notice of and participate in the granting, amendment or termination of a CCN for the CCNs that affected the landowner’s property. In several instances, persons sought and obtained CCNs over vast geographic areas while having little to no financial ability to provide the Certificated Area with continuous and adequate water or sewer service. Prior to House Bill 2876, once land was included in a CCN Certificated Area, a landowner could not remove his land without going through a costly and time-consuming contested case proceeding. As a result the CCN holder could (and in several instances did) require hefty payments from landowners as consideration for allowing them to remove their land from a Certificated Area without using the contested case process.

Now, landowners in a CCN certificated area have additional rights to participate in the CCN permitting process and, in some instances, to remove their land from the CCN area. We have a history of successfully fighting for landowners against CCN holders. If you need to fight with a CCN holder, give us a call.

WATER SUPPLY CORPORATIONS AND OTHER RETAIL WATER PROVIDERS

There are many different forms of retail water providers. CCN holders, discussed above, are one example. Others include Municipal Utility Districts (MUDs), Water Control and Improvement Districts, Fresh Water Supply Districts, Special Utility Districts, Water Supply Corporations, Investor-Owned Utilities, and Cities. Various of these play by different sets of rules. We represent landowners and developers in their quests to obtain adequate water service to their piece of Texas from retail water providers. When these quests encounter obstinate providers, it has all the makings of yet another fight over water rights, and when it happens to you, please give us a call.

Please visit our Texas Water News page to see what’s current in water news, and contact us at 972-381-9800 to schedule an appointment when you need a gunslinger help fight over water. We look forward to helping you.

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