water issues every broker of rural land should know october 22, 2015

Water Issues Every Broker of

Rural Land Should Know

October 22, 2015

Topics

• Water availability on rural land• Groundwater • Surface water

– Domestic and Livestock exemption for surface water use

– Navigable streams in Texas

• Severing water rights• Leasing water rights

Water Availability on Rural Land

• Identify client’s needs and expectations

Water Availability on Rural Land

• Groundwater• Surface water• Service by a water supply corporation

North Texas Municipal Water District

Groundwater

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Groundwater Regulation

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Surface Water

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Domestic and Livestock Use

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Impoundment

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Navigable Waters in Texas

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Two Tests

Navigable in Fact – criteria evaluated include passage by boats, use in commerce, transport of logs etc.

Navigable by Statute - a stream that retains an average width of 30 feet from the mouth up

Texas Nat. Res. Code §21.001

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Waters of the US

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Exclusion for Farm and Ranch Operations

No permit required (under Section 402) for the discharges consisting entirely of agricultural irrigation return flows

CWA § 1342(l)(1) & 33 C.F.R. § 122.3(f)

No permit required for agricultural stormwater discharges

33 C.F.R. §122.3(e) No Dredge and Fill permit required for

normal agricultural, silvicultural, and ranching operations

Waters of the US

• Current Status - Stayed: – several State Courts– 6th Circuit Court of Appeals (even though it is

unclear whether that Court had jurisdiction)

• In flux. Expect continuing litigation • If upheld – most rural landowners are

protected by pre-existing exemptions from coverage

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Recap

• Navigable waters: – Texas terminology– Relates to whether you can construct a dam

across your stream and impound water

• Waters of the US:– EPA /Corps of Engineers terminology– Relates to discharges of pollutants into water

(including silt)– Likely to not affect non-commercial farms

and ranches

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Risk Management

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Risk Management

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Severing Water Rights

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Leasing Water Rights

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Margaret Menicucci

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