06 a., b., & c. Record of Standing Committee

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Jim Mathews met on Thursday, May 29, from 4 to 6 p.m. with the Pat Mayse Lake Water Study Committee to answer questions submitted last week by committee members. Darrell Cline, the city's water rate consultant, with R.W. Beck, also sat in on the meeting. Jim Mathews: I received a set of questions from Shawn. I compliment you for a set of very arduous questions. I really had to step back and think about these. I'm going to attempt all of these questions. On some, I may not have THE answer, but I'll have some comments to make. The first issue I'll address is Cancellation. I know thaYs been a concern about whether the city's existing water rights in Lake Pat Mayse would be subject to cancellation if it doesn't do something to market that water in the near future. I have a series of questions, some fairly specific about cancellation, including the statutory and case law that applies to this. I will try to be very brief about this, but I think a little bit of basics is really important. In Texas, almost all surface water is owned by the State of Texas. There are a very few minor exceptions that don't apply in your circumstance. The right to use state water can be obtained through what is called an appropriative water right. Texas has a long history of many jurisdictions, and over the decades and centuries we've actually handled water in very different ways, but at this point in time the Legislature has reduced us to a purely appropriative scheme. That means you have to have a piece of paper from the state that gives you the right to use surFace water before you can take it and use it. The other thing that's important is, that water always belongs to the state. What they're giving you with this appropriative right is the right to use the water. You can use it fully. You can consume it in the process. But if you don't use it fully, there is a statutory duty to return unused return flows back to the river of origin if that's feasible. So you have this appropriative right scheme, and the state back in 1957 adopted some cancellation statutes. which gave the state agency and that's changed over time; it's now the Texas Commission on Environmental Quality but that state agency has the authority by statute to come in and cancel a water right in whole or in part for 10 years of continuous non-use. That legislative action was challenged early on, and the Supreme Court issued an opinion that it was constitutional for them to do this, because the state has given a right to USE the water, not to NOT use the water. And this 10-year mechanism was a way to say if you're not going to really put it to beneficial use we're going to come back and take it back because somebody else might need it for appropriation. So those statutes do exist. However, over time those statutes have been amended to recognize some very specific exceptions. I've been doing this for a fair number of years. The big problem used to be that Dallas accepts it. Dallas has lakes all over East Texas one is Lake Palestine, OK? Still not connected to the Dallas system. I suspect that lake has been there for 30-plus years, so the water has not been put to a beneficial use by Dallas at this point in time. And there used to be some concerns because I did some work for Dallas about "Oh, if we don't do something, we might end up losing this water." And over the years, there were efforts to amend the statute to address these kinds of situations. Let me tell you of at least a couple of specific statutory exceptions to cancellation that I think would likely apply to the Paris water rights and Lake Pat Mayse. Probably the most important one is, there's an exception if the permit is the result of the construction of a reservoir funded in whole or in part by the holder of the permit as part of that holder's long-term water supply plan. That sounds like that fits to a T your situation. The reservoir was built back in the mid-60s, it was a Corps of Engineer project, you contracted with the Corps, it was for your long-term supply. Those contracts recognize thaYs what it was for, and so I don't think the state could cancel your rights regardless of whether it's fully utilized today or tomorrow or next week or next year. ThaYs the current law; I'm not telling you the Legislature couldn't change the law, but I think you are secure under that existing exception to the cancellation provision. There are a couple of others that arguably fit your situation, maybe not as closely as the one about the funding the construction of reservoirs, but one that was put in place was to deal with the regional water planning process. If a significant portion of the water under the water rights is authorized pursuant to a permit that's been used in accordance with a specific recommendation for meeting a water need included . 000035