Adams: Why HB3028 on groundwater is a terrible bill

Don’t be fooled by talk that ‘correlative rights’ and ‘fair share’ are Texas oil and gas concepts.

In oil and gas, the object is to pump as much as needed out of the ground.

image: irrigation pipeBut HB 3028‘s correlative rights and fair share not only prevent pumping of groundwater by a neighbor, it can be used by new neighbors to shut you down as subdivisions move to the country as we saw in Hays County.

Think about all those nearby CRP acres not being pumped, landowners with only a small well, ASR (Aquifer Storage and Recovery), rivers nearby, state parks, federal lands, private lands with MLD (Managed Land Deer) permits, neighbors with conservation easements being able to show their aquifer is going down and calling the rich environmental organizations that pay no taxes to sue you to stop your farming or other pumping.

Imagine selling a corner of a circle to someone to build a house or whatever and they or their friends at the Sierra Club or the litigious outfit called “Environmental Stewardship” sues you to shut your circle irrigation system down for pulling their little house well down when you irrigate.

HB 3028 is no different than any other proposal in that it’s easy to see the so-called benefits, but ask yourself: How can the new law be misused by the rich enviro-trial lawyers?

This “fair share” nonsense is the problem Nebraska put itself into and, earlier of course, California where farmers continue to experience a regulatory man-made drought during times of much flooding. And California, as with Texas, constructed no flood control projects during the dry periods. Now look at all that good rain water going to waste into the salty ocean.

But HB 3028‘s correlative rights and fair share not only prevent pumping of groundwater by a neighbor, it can be used by new neighbors to shut you down as subdivisions move to the country as we saw in Hays County.

In fact, today’s Texas fair share proposal appears to come straight from 2004 Senate Committee that admitted it comes from California as a replacement for Texas’ sound, wise and centuries-old legal maxim damnum absque injuria now spoken of by all the alleged pundits as the so-called the “rule of capture”.

Eckstein is not a Texas lawyer and misstates Texas law.

“Eckstein questioned whether, under the rule of capture, “do you really have local control when your neighbor can pump your water with no liability?””

http://amarillo.com/stories/082204/new_senatelook.shtml#.WMqt1yzn_cs

As I’ve shown several times, the so-called rule of capture (damnum absque injuria) does not allow and never allowed a person to negligently or maliciously drain the neighbor.  Broom’s Maxims of the Law.

Moreover, Article I, sec. 10 of the US Constitution prohibits Texas from retroactively changing the rights we received from the perpetual state land patent from “all right, title and interest” to a “fair share”.

Continuing to monkey with law they do not and never understood through Water Code Ch. 36 against our rights is going to cost more families just like it did the Days and Braggs and fatten the wallets of the big trial law firms and, too, the rich environmental groups that pay no taxes.

As discussed, the obligation of states not to impair existing contracts such as the land patent is considered a “social compact”, a contract with the people to protect our rights.

Continuing to monkey with law they do not and never understood through Water Code Ch. 36 against our rights is going to cost more families just like it did the Days and Braggs and fatten the wallets of the big trial law firms and, too, the rich environmental groups that pay no taxes.

These concepts of the protection of our rights from retroactive or ex post facto legislation were recognized in Federalist Paper 84, Anti-Federalist Letter II by DeWitt, Judge Story in his commentaries on the obligations of the states, and as long ago as Justinian’s Institutes of 529 AD.

The courts are the proper branch of government for the detailed application of the law to the facts, not the legislatures that, as the Maxims of the Law point out, see a new light during manufactured controversies and then unwisely affect property rights adversely for many generations of people.

For that reason, retroactive legislation is very bad public policy.

J. Adams
Morton, Texas

Comments

  1. I think J Adams has his history correct and should run for governor, but J is probably too wise for such actions. I commend your studious reflection on the most sacred of issues, property, thank you J for the fresh air.

    K Baccus
    Levelland

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