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Sharing the Common Pool

Water Rights in the Everyday Lives of Texans

Charles R. Porter

Publication Year: 2014

If all the people, municipalities, agencies, businesses, power plants, and other entities that think they have a right to the water in Texas actually tried to exercise those rights, there would not be enough water to satisfy all claims, no matter how legitimate. In Sharing the Common Pool: Water Rights in the Everyday Lives of Texans, water rights expert Charles Porter explains in the simplest possible terms who has rights to the water in Texas, who determines who has those rights, and who benefits or suffers because of it.

The origins of Texas water law, which contains elements of the state’s Spanish, English, and Republic heritages, contributed to the development of a system that defines water by where it sits, flows, or falls and assigns its ownership accordingly. Over time, this seemingly logical, even workable, set of expectations has evolved into a tortuous collection of laws, permits, and governing authorities under the onslaught of population growth and competing interests—agriculture, industry, cities—all with insatiable thirsts.

In sections that cover ownership, use, regulation, real estate, and policy, Porter lays out in as straightforward a fashion as possible just how we manage (and mismanage) water in this state, what legal cases have guided the debate, and where the future might take us as old rivalries, new demands, and innovative technologies—such as hydraulic fracturing of oil shale formations (“fracking”)—help redefine water policy.

Published by: Texas A&M University Press

Title Page, Copyright Page

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pp. i-vi

Contents

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pp. vii-viii

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Foreword

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pp. ix-x

I cross the Blanco River twice each day, driving from my home in Austin to work at Texas State University in San Marcos. Sometimes there is water in the river and sometimes there is not. The Blanco originates out in Kendall County, just below the Gillespie...

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Acknowledgments

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pp. xi-xiv

My thanks go to many people for their contributions to this book and my research. My wife, Constance Porter, was my strong beacon of strength over the years of travel and work on the manuscript. Kirk Holland was my stalwart mentor, teaching me the intricate and nuanced world of...

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Introduction

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pp. 1-4

Today close to 90 percent of Texans live in an “urban” area.1 Water rights are generally overlooked by urbanites because their water is immediately available from the “taps” in their homes. The size of the monthly water bill and any emergency rules concerning irrigation of plants and...

Part One: Natural Water, Human Rules

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1. The Unique Characteristics of Water and Water Rights in Texas

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pp. 7-15

Determining a water right in Texas depends on which of three geological containers holds the water.1 The first container is surface water, or water that flows on the surface of the ground in a watercourse.2 The State of Texas owns the water in a watercourse. The assessment of what...

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2. Water Rights and Water Law in General

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pp. 16-20

What is a “water right”? According to the Texas Water Code, state-owned water is “a right acquired under the laws of this state to impound, divert, or use state water.” A more thorough definition is a “right or group of rights designed to protect the use, enjoyment, and in some...

Part Two: Who Owns Water?

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3. Water: State Owned

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pp. 23-33

First and foremost in understanding water ownership in Texas is determining the “geological container” in which the water resides at any point in time. The water molecule changes ownership many times in the hydrologic cycle depending upon the geological containers it passes...

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4. Water: Privately Owned

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pp. 34-42

In the hydrologic cycle, surface water, before it becomes water in a watercourse, likely gets to the watercourse by running off the ground. Diffused surface water is rainwater or the water in our rare snowmelts—runoff— that stays on a landowner’s property before it enters a...

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5. Water: Shared Ownership

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pp. 43-50

States neighboring Texas claim ownership of their surface water and groundwater. The states share surface water, from major boundary rivers to hundreds of streams and creeks. The Red River and the Sabine River form part of our boundaries with Oklahoma, Arkansas, and Louisiana...

Part Three: How is Water Used and Regulated?

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6. Supply and Demand, Today and Tomorrow

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pp. 53-60

Why is an understanding of water rights in Texas more important today than ever before in our history? Because Texas currently has a strong economy, and experts project Texas will experience long-term growth...

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7. How We Use Water

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pp. 61-77

Most of us are unaware of the number of ways we use water in our society, how vital these uses are to our way of life, and how these uses impact each other because they all draw water from the common pool in the hydrologic cycle. Some uses are highly consumptive (water is...

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8. Who Regulates Water Use?

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pp. 78-108

The rights to water and the conditions under which it may be used are further complicated in Texas because they are directly and indirectly subject to the jurisdiction of a myriad of governmental agencies, including these...

Part Four: How Do Water Rights Affect Real Estate Transactions?

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9. Water and Everyday Real Estate Transactions

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pp. 111-126

Water rights and everyday real estate transactions set the market value of land and have far-reaching consequences for every Texan. Today, assessing the water characteristics of property presents unique challenges to buyers, sellers, lessors, lessees, and real estate agents. The water...

Part Five: What Should Guide Water Policy: "The Common Good" or Private Rights?

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10. Public Policy Debates in the Recent Past

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pp. 129-159

Difficult public policy issues relating to water have faced Texans for many generations. The challenging choices have not necessarily been between right and wrong; typically, the positions and arguments of all the parties involved...

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11. Public Policy through the Crystal Ball

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pp. 160-176

As Texas grows dramatically and copes with its normal periodic droughts, the issues surrounding its water and “confusing” water rights will need to be understood by everyone in order to have fruitful debates that lead to good public policy decisions. Even at times when water...

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Epilogue

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pp. 177-178

In the past, Texans have taken water for granted, and still almost everywhere water availability is as easy as reaching for and turning on the spigot. Our recent ancestors dug water wells by hand, hauled water into the house, or if they were really lucky and reasonably wealthy, pumped...

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Appendix 1: Significant Court Cases Concerning Texas Water Rights

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pp. 179-186

The following sample of significant cases concerning water rights in Texas is not intended to represent all the court rulings that impacted our current water rights policies or to provide the reader with a legal opinion at all. However, the cases are not only interesting themselves but also indicative...

Appendix 2: Government and Other Resources

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pp. 187-189

Appendix 3: Texas Supreme Court Cases and Other Significant Texas Cases

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pp. 190-196

Notes

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pp. 197-210

Glossary

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pp. 211-216

Bibliography

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pp. 217-234

Index

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pp. 235-247

Series Page

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Back Cover

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E-ISBN-13: 9781623491703
E-ISBN-10: 1623491703
Print-ISBN-13: 9781623491376

Page Count: 240
Illustrations:
Publication Year: 2014

Series Title: River Books, Sponsored by The Meadows Center for Water and the Environment, Texas State University