Daily Development for Friday, March 7, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

WATERS AND WATER RIGHTS; WASTEWATER; PUBLIC DISCHARGE: A city's discharge of treated wastewater into an existing stream traversing a downstream property, where in compliance with a state discharge permit, does not constitute a taking of property.

Domel v. City of Georgetown, 6 S.W.3d 349 (Tex. 1999).

This is a case of first impression in Texas, challenging the state's right to authorize a city to to use a watercourse for public purposes. The case evaluates the Texas Supreme Court's position on a number of water law issues.

The owners of a ranch brought suit against the local city alleging that a taking resulted when the city commenced discharging up to 2.5 million gallons per day of treated wastewater out of a sewage treatment plant less than a mile from the ranch into an intermittent stream traversing the ranch property.

The court ruled that the stream, which, absent the wastewater discharge, was dry for six months out of each year, was nevertheless a "watercourse" under Texas law, meeting the threeprong Texas test, having: (i) a defined bank and bed, (ii) a current of water, and (iii) a permanent source of supply . All water in a watercourse in Texas is the property of the state and is held in trust for the public. Since the discharge was in compliance with a permit the city had received (by assignment) from the Texas Water Commission and did not flood the farm owner's property, the court went on to hold that the permission of downstream owner is not needed for wastewater discharge, and, therefore, no constitutional taking resulted.

It is hard to find any specific discussion of the impact of the discharge on the landowner. It appears that the court viewed some of the concern as being nothing more than "stigma" concerns "we don't want that stuff here, knowing where it's been, no matter how clean you say it is." But it may also be that the constant presence of the water in the channel interfered with access between the higher ground on either side.

The court noted the unusual nature of this case: owners trying to prevent the flow of water through their property in a state where the scarcity of water results in most litigants in water cases seeking greater rights to water.

Comment 1: Note that the court acknowledged that the "civil law" theory applies in Texas, and that an increase in the water course that would result in flooding downstream would have been actionable. But there was no such allegation here.

Comment 2: The law of water is an amalgam of unique theories that have some correlation to other land rights policies, but at bottom relate to the special politics of this special substance that is both a bane and a boon often critically necessary yet sometimes frighteningly overabundant. It is difficult to conclude that water law should be viewed as a species of "private property" and that water rights cases are truly "takings" cases in the traditional sense. It's just a ball game unto itself.

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