"Water For Texas -- 2002" is the first State Water Plan adopted by the Texas Water Development Board, pursuant to Senate Bill 1, 75th Texas Legislature. "It identifies actions to be used to meet local water needs during a drought of record and over the next 50 years." (TWDB, 12/31/2001, To The People Of Texas)

Volume I, Section 5.1 -- Key Finding: The population of Texas is expected to almost double in the next 50 years, from nearly 21 million in 2000 to about 40 million in 2050,

Volume I, Section 5.2 -- Key Finding: Total projected demand for water is expected to increase 18 percent, from nearly 17 million acre-feet in 2000 to 20 million acre-feet in 2050.

Volume I, Section 5.3.2.2 -- In Texas ... 211 reservoirs have greater than 5,000 acre-feet of conservation storage capacity. These 211 represent a total reservoir conservation storage capacity of 41.5 million acre-feet.

Volume I, Figures 5-11 -- Groundwater availability for aquifers of Texas under drought conditions as reported by planning groups. -- Total groundwater availability in 2050: 13.1 million acre-feet per year.

"Water For Texas" admits that there is already 200 percent water storage capacity in the existing major reservoirs in Texas to meet the water demands for all of Texas in 2050, assuming the population of people doubles and under drought of record conditions (baseline is 1950's drought). That's current reservoir capacity sufficient to meet twice the projected demands of 2050, but even in drought conditions, some replenishment occurs, increasing reservoir yield above capacity. Adding the groundwater availability increases current water resources in 2050 to 54.4 million acre-feet, versus the projected demand of 20 million acre-feet. All that needs to be done to make this water available for distribution and use are fully developed delivery systems.

So why are some people pushing and insisting there is a need for additional reservoirs to be developed, particularly in northeast Texas and in particular the Marvin Nichols I reservoir.

The Dallas Morning News, on January 18, 2004, quoted Jim Oliver, General Manager of the Tarrant County Water District, in regard to the City of Dallas' rejection of funding $600,000 for the planning of Marvin Nichols I: "It's not going to slow it down a bit. We can absorb their 15% of the planning." The News also reports Mr. Oliver as saying -- Even if Dallas decides not to help fund the reservoir, other water systems would build it; and Mr. Oliver said political opposition to the project wouldn't stop the project if backers decide to build it; and "If we want this reservoir built, it will get built."

Dallas Mayor Laura Miller, in a KLIF radio interview on January 8, 2004, gave the following as major points for the Dallas City Council's voting not to spend $600,000 with the Sulphur River Basin Authority for a 15% stake in Marvin Nichols I:

1. Ten percent of water supplied by the City of Dallas is unaccounted for, probably due to leakage, which needs to be corrected.

2. Thirty percent of Dallas water is supplied to other communities at cost and that is a gift to be reconsidered.

3. Consumers in the Dallas-Ft. Worth area are among the highest per capita users of water in Texas, which calls for better conservation.

4. The farmers, ranchers, timber owners and loggers in northeast Texas, their heritage and environment, should not be usurped.

The News article of January 18 refers to Mike Burke, administrator (now Executive Director) of the Sulphur River Basin Authority (SRBA), as leading the planning for the reservoir. On January 7, the News referred to the SRBA as the lead agency for building the reservoir.

According to The Texas Almanac 2002-2003, the Sulphur River Basin Authority was created in 1985, with a six-member Board of Directors serving 6-year terms. The last Governor-appointed board members, term expiration in parentheses, are Richard Goodman (2/1/05), Judy Lee (2/1/05), Mike Huddleston (2/1/03), Charles Lowry (2/1/03), Pasty McClain (2/1/01) and Robert Parker (2/1/01).

[COMMENT: The last four of these members have now been replaced with new appointees. R.]

The SRBA Board meets on the third Tuesday of each month. Present on January 20, 2004, were Ms. Lee, Ms. McClain, Mr. Goodman and Mr. Parker, at which time a quorum (4 of 6) was declared and a meeting held. Of course, the Texas Constitution states at Article IV, Section 12(i), "For purposes of this section, the expiration of a term of office ... constitutes a vacancy." In fact, on January 20, 2004, there were only two Board members present with unexpired terms, which does not constitute a quorum to have a meeting.

Your Water Supply, published by the Sierra Club, states: "Since river authorities do not receive direct legislative appropriations, the selling of water or by-products of water constitutes the majority of the revenues."

The Dallas Morning News, on January 18, 2004, quoted Planners of Marvin Nichols I as saying the project would cost $1.7 billion. That includes the $446.5 million the Northeast Regional Water Plan projects as a cost just for the reservoir. That projection grants 35% of construction cost for Engineering and Fees (several engineers have said 10% would be generous) and an additional 15% of construction cost for Overhead and Profit to the developer, the SRBA. Only 25% of the total reservoir cost is allocated toward land cost. All of the land owners of the 62,000 acres put under water and of the 62,000 acres mitigated for flora and fauna loss of habitat (humans are not considered fauna), a total of 124,000 acres, would receive 10% proportionately, less than the engineers and fee collectors who give up nothing, but only gain from the project.

The North Texas Municipal Water District and Tarrant Regional Water District have previously negotiated to purchase water from Oklahoma and had used the projected cost of Marvin Nichols I as a base line for negotiating pricing. Negotiations broke off when Oklahoma quoted their consultants for the cost of the reservoir at $5 billion, and suggested pricing water from Oklahoma on that basis.

Why are some people pushing for Marvin Nichols I when Texas already has a 200% reservoir capacity for the projected demand of 2050? Once Marvin Nichols I is built and the pipeline to Lake Lavon completed, it's just a matter of time until additional reservoirs are built in Northeast Texas, feeding into that major pipeline. These additional reservoir sites have already been identified: George Parkhouse I at 30,000 acres, George Parkhouse II at 17,400 acres, both on the Sulphur River; Marvin Nichols II at 35,000 acres on White Oak Creek; Big Pine at 9,200 acres (Lamar Couny), Barkman at 29,200 acres (Cass County); and Pecan Bayou (Red River County), and Liberty Hill (Bowie County).

Once a reservoir gets built, it has to be managed, indefinitely, and management fees are collected, and the management has to be monitored, and maintenance conducted. Marvin Nichols I & II and George Parkhouse I & II are all in the Sulphur River Basin, subject to management and operation by the SRBA.

The proposal for Marvin Nichols I allocates one acre to be condemned for mitigation for each acre condemned for the lake site. However, the conservative consensus of opinion on the actual ratio is more like 3 to 4 acres mitigated for each acre underwater. Adding the acreage of Marvin Nichols I & II and George Parkhouse I & II, 640,000 acres for mitigation. That's a total of 823,000+ acres removed from human habitation -- a land area greater than that of Red River County, or Cass County or Bowie County, or Delta, Franklin, Morris and Titus Counties combined.

When Cooper Lake was developed, more than 2 acres of land were mitigated for each acre underwater. The mitigation land is in Delta County as Cooper Wildlife Management Area (14,480 acres), and in Titus, Morris, Bowie and Cass Counties as hike and view wildlife, during the day, for a fee payable to Texas Parks and Wildlife.

Texas Senator Bill Ratliff is on record as suggesting the timber loggers opposing the loss of timber land should apply to the United States Congress to delete the mitigation requirement, but environmentalists say that won't happen (Dallas Morning News, 9/16/02). Why won't the mitigation requirement get deleted? Because it is required by United Nations Treaties known collectively as "Rewilding America".

Water is essential and water planning is needed, but farm, ranch, and timberland are also essential. Converting additional land for surface water, requiring disproportional mitigation (but not for humans) when reservoir capacity is already 200% of year 2050 demands for all of Texas, is foolish and poor land resource management.

WHOSE WATER IS IT?

The rights and title in land and the rights to the water on it and under it have been tied together for a long, long time. "It is here observable that water is here mentioned as a species of land, ... and therefore I cannot bring an action to recover possession of a pool or other piece of water, ... but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water." -- 2 Blackstone's Commentaries 20 (c. 1766). In other words, a sale of land will pass the water which covers it.

"The public domain [of Texas] was closed in 1898 when the Texas Supreme Court declared that there was no more vacant and unappropriated land in Texas." -- Texas Almanac 2002-2003, p. 412: Ninety-one plus percent of the land in Texas had been passed out of the hands of government, either by Spanish or Mexican land grants, or by Texas, republic or state, land patents.

The Spanish and Mexican land grants and the Texas land patents transferred all right and title to the land, which included subsurface and surface water rights, and mineral rights, unless specifically reserved in the granting instrument. Subsequent sales of privately held land (conveyances) have been by deed. "An estate [right, title and interest] in land that is conveyed is a FEE SIMPLE," Texas property Code, Title 2, 5.001(a): "FEE: ... and in America, where lands are not generally held of a superior, a fee or fee simple is an estate in which the owner has the whole property without any condition annexed to the tenure ... " -- Webster's Dictionary, 1828. So a deed (fee simple) transfers the same rights, title and interest as the land grants and patents.

Furthermore, "The rights of property and of action, which have been acquired under the Constitution and the laws of the Republic and State (1845), shall not be divested: ... but the same shall remain precisely in the situation which they were before the adoption of this Constitution (1876), unless otherwise herein provided; ... " -- Texas Constitution, Article XVI, Section 18.

Prior to 1917, the water doctrine in Texas conformed to the riparian doctrine where the person applying for land rights [grant, patent or deed] had the right to condemn (use) all the water upon and under those lands, necessary to put the land to beneficial use. The government of Texas held the right to the water in the rivers, whether navigable or non-navigable, as part of the public domain and for public use.

On June 13, 1904, the Texas Supreme Court established the rule of capture for subsurface water on private land, upholding the riparian doctrine in regard to subsurface water rights (vested rights), that they go with the land.

In 1917 the Texas Constitution (of 1876 as amended) was amended at Article XVI, Sec. 59-a: "The conservation and development of all the natural resources of this state, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams, for irrigation, power and other useful purposes, ... the conservation and development of its forests, ... and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto."

This amendment appears to: give the "State of Texas" dominion over all surface water (and forests) within the boundaries of Texas; reclaim water (and forest) rights in land (previously passed to private owners through grants and patents under which relinquishment was forever) without compensation; and establish the "State of Texas" as King over the aforementioned natural resources, in violation of Art. XVI, Sec. 18, which established vested rights in 91.4% of the land in Texas, by 1898.

"Surface water belongs to the state and, except for limited amounts of water for household and on-farm livestock use, requires permits for use." -- Texas Almanac 2002-2003, p. 62. This statement indicates what was just said, that the "State of Texas", via constitutional amendment, appears to have ownership of all the surface water (and forests) on private land in Texas.

Water goes with the land, historically, and a reclamation of water would indicate a reclamation of the land under it, since as Mister Blackstone said back in 1766 "water is here mentioned as a species of land". This apparent reclamation would be consistent with U.S. Senate Document #43, 73rd Congress, 1st Session (1933): "The ownership of all property is in the State; individual so-called ownership is only by virtue of Government, i.e., law -- amounting to mere user; and use must be in accordance with law and subordinate to the necessities of the State."

However, the Texas Constitution contains a Bill of Rights at Article I, which are declared to be inviolate at Art. I, Sec. 29: "and all laws contrary thereto [this Bill of Rights] ... shall be void." Art. I, Sec. 19: "No citizen of this State shall be deprived of life, liberty, property, privileges, or immunities, or in any manner disfranchised, except by the due course of the law of the land." Art. I, Sec. 17: "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made." Art. I, Sec. 16: "No Bill of attainder or ex post facto law, retroactive law, or any other law impairing the obligation of contracts shall be made."

Land grants, patents and deeds are contracts, and constitutional amendments act as law. Since the provisions in the Bill of Rights prevail over the rest of the Texas Constitution, and since the water goes with the land, and since no compensation has been made for the reclamation of surface water rights and the land attached thereto, Art. XVI, Sec. 59-a must only apply to that 8.6% of land in Texas reserved by the "State of Texas", and the water in the rivers.

In 1985, the Texas Legislature passed the Sulphur River Basin Authority (SRBA) enabling act, giving the supposed authority found at Art. XVI, Sec. 59-s over the Sulphur River Basin, as defined, to the SRBA, including the right of eminent domain. The reservoirs to be developed in the Sulphur River Basin, through the SRBA, would require the application of eminent domain. Since the "State of Texas" purports to own the surface water (and forest) rights in the privately held lands in the basin (which it supposedly acquired by divesting vested rights) compensation, for the balance of the rights in these basin lands, would be reduced.

One should not overlook the fact that Art. XVI, Sec. 59- contains the words "public rights and duties" over the preservation and conservation of the waters in its rivers. The SRBA enabling act confers the duty and obligation, at Sec. 17(3), for "prevention of the escape of water without the maximum of public service, and for the prevention of devastation of land from recurrent overflows, and the protection of life and property in the river basin from uncontrolled floodwater."

The banks of the Sulphur River have been breached and the riverbed has been clogged for decades. The "State of Texas" has completely failed in its own declared public right and duty to look after the river, and the SRBA since its inception has not prevented the escape of water or the devastation of land (and forests) from recurrent overflows. Yet the "State of Texas", through its agency the SRBA, would have us believe it would be a good custodian over the prospective reservoirs some people want to build in spite of the fact that there is already a 200% storage capacity in Texas' 211 largest reservoirs to meet the projected needs for all of Texas in the year 2050, under drought of record conditions.

The "State of Texas" has divided Texas into River and River Basin Authorities covering the entire geography of Texas. The plight of landowners in the Sulphur River Basin is only representative of what has happened or will happen to all landowners in Texas. If the "State of Texas" thinks it owns the water on your land, then it thinks it effectively owns your land which holds its water. Think about it.

"The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do, to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all." -- Frederic Bastiat, The Law.

"Those who do not preserve the law of the land, they justly incur the awesome and indelible brand of infamy." -- 3 Justinian's Institutes, 221.