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.
Readers are urged to respond, comment, and argue with the daily
development or the editor's comments about it.
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