Have you stopped to consider water rights or water appropriations policies in the context of our overall water resources? One example from a recent project I was working on got me thinking and I thought you might find it interesting...
Say I have a stock pond (in Texas, these man-made ponds are used for watering livestock) and this pond is a water of the state (e.g., it was constructed on a stream channel). Now say I decide to convert my property from agricultural uses to a residential development. This would cause me to lose my domestic and livestock (D&L) water appropriations exemption. Therefore, I would have to apply for a water appropriations permit for the water I’m holding in the lake. These permits have several key elements. For instance, if the dam is over 6 feet high (and most of them are) I would have to go through the dam safety permitting process that includes an analysis of the dam’s structural stability. It’s also likely that my appropriations permit would require me to drill a water well and supplement the water in the pond to account for losses of water to evaporation. Note that nothing has changed with regard to this hypothetical stock pond – we’ve not proposed to change the size, configuration, or capacity of the lake. Nor have we proposed to use the water for any purpose. The lake is the same size as before and would theoretically be losing the same amount of water to evaporation. If anything, since my cows are no longer drinking the lake water, more albeit minute amounts, should be flowing downstream.
Even though I’m proposing no changes to the pond proper, I’ve got to get a permit and go to the expense of drilling a well, etc. So what? You’re thinking that I’ve developed my land and will make a bunch of money from the sale of lots, so who cares if I have to spend a little money to augment evaporation losses from the pond?
For starters, it’s likely that the groundwater from the water well isn't the same in terms of chemical and physical properties as the water in the surface water system. Even though it might be of suitable quality to drink, it might not be ecologically suitable for the surface water system. Furthermore, if I’m in a somewhat rural situation, I may be drilling a well that further taxes a groundwater system that my neighbors are relying on for their drinking water. To make matters even more complicated, some parts of Texas have Groundwater Conservation Districts that might not even allow new wells.
So now say I want to side-step this issue entirely, avoid these potential problems and just fill in the pond since I don’t need it anymore. Well, I’d probably need a Section 404 permit for that (remember, we’re assuming the pond was built on a stream channel).
So really it’s a classic catch-22 situation - either go through a potentially arduous Section 404 permitting process to get rid of the pond or get a water appropriations permit and drill a well to compensate for evaporative losses. And all this for a pond that I don’t want or need to change in any way.
While you and I might find legal and regulatory conundrums like this fascinating, this scenario is very real and more common than you might think. But problems like this reflect the fact that we need to constantly look at water policy and be open to creative solutions that provide the greatest benefit.
posted by RANDY ALEXANDER
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