What Happens to the Property in an Ebola Case

Sometimes fear can be dispersed with good, solid information. I’m not a health care professional, but I am an environmental lawyer, so I will focus on the part of the process and law about which I have expertise. This post is a timeline of what happens to a person’s property when that person is diagnosed with Ebola, with details from the local cases as examples. Here’s what will happen, probably mostly the same in every case.

1. A test result indicates someone has tested positive for the Ebola virus. You don’t have to worry about not knowing the identity of someone who has tested positive for Ebola. The activities described below, and the knowledge of the neighbors as to who lives in what residence, should provide plenty enough information to disclose the identity of the patient.

2. Within one to three hours, police and first responders will set up a staging area close to the person’s residence. They first stand guard at the residence to prevent ingress and egress. Nobody in, nobody out. If other persons are there, they probably will load them up in an ambulance and send them to a health care facility to be tested for Ebola. This will take time, depending on how the first responders want to isolate these individuals.

3. During this same time frame, police will begin making autocalls, passing out fliers, and going door to door to contact the neighbors of the infected person. In Nina Pham’s case, they contacted a 4 block area. The police will tell the neighbors about the Ebola diagnosis and warn them that a hazmat crew will be on the scene shortly, do not be alarmed. In Amber Vinson’s case, the notice said:

THIS IS AN IMPORTANT MESSAGE FROM THE CITY OF DALLAS. Please be advised that a health care worker who lives in your area has tested positive for Ebola. This individual is in the hospital and isolated. Precautions are already in process to clean all known potential areas of contact to ensure public health. While this may be concerning, there is no ongoing danger to your health. The virus does not spread through casual contact. The City of Dallas is working closely with the Centers for Disease Control and Prevention, Dallas County, Dallas Independent School District, and Community Leaders to protect your health. For more information please call 311 or Dallas County Health and Human Services at 214-819-2004. The reverse side of this flier contains relevant information regarding the Ebola virus. [the reverse contains 11 bullets of information about Ebola, from the CDC]

4. In a few more hours, a hazmat crew will decontaminate the exterior of the patient’s building.

5. During this same time period, a hazmat crew will show up at the hospital and decontaminate the vehicle the patient used to drive to the health care facility.

6. Several more hours will pass while the police continue to prevent ingress and egress to the building, then the hazmat crew that will decontaminate the interior of the residence will arrive, and begin their work. For the Liberian Duncan, this took 15 people 4 days. They filled 140 55-gallon barrels with everything-EVERYTHING-inside the residence, down to the concrete floors and paint on the walls. They cut up the mattresses and large items of furniture so they would fit in the barrel. The hazmat crew then fit the barrels into 27 containers, and sealed them shut.

7. A biohazard materials shipping company will then come, load the containers, and ship them via truck, over roads, to a disposal company. They will load the sealed containers into the incinerator, and the incinerator, reaching temps of 1,500 to 2100 degrees, will reduce the sealed containers and their contents to ash, plenty hot enough to destroy any Ebola. The disposal company will then load the ash in required packaging, and ship it to a landfill that holds a permit authorizing it to accept biohazardous material.

8. Meanwhile, the patient will hopefully be recovering. Upon being discharged, however, the patient will walk back into a residence with literally nothing inside. No furniture, curtains, carpet, blinds, TVs, phones, food, small appliances, dishes, pots, pans, plates, memorabilia, pictures, art, wall hangings, clothes, shoes, belts, jewelry, literally nothing.

9. The health department will send the bill for the decontaminations (residence and vehicle) to the person whose residence and car was just decontaminated. But at least the former patient has their life.

All through this process, the owners and occupants of these buildings have rights, but they must be asserted at the right time, and that means very quickly. If you become the patient, I suggest you keep the focus on restoring your health.

If, on the other hand, you are the landlord of the contaminated property, or the investor, or maybe the lender, you may want to consider engaging a qualified environmental attorney immediately upon learning your property is going to be decontaminated, to protect your property (and pocketbook) as much as possible.

This is a continuing series of blog posts on the Ebola outbreak in Texas. Please subscribe to this blog for notice of future posts.

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CREDITS

Enviropinions are original writings of Mark McPherson.
© 2014, Mark McPherson. All rights reserved.
15950 Dallas Parkway, Suite 400
Dallas, TX 75248
214-722-7096 Office
214-540-9866 Facsimile
mark@texasenvironmentallaw.com
www.TexasEnvironmentalLaw.com

What Does “Interference with Prospective Contractual or Business Relations” Mean?

Turns out, until 2001 Texas has never had a really good definition of what “bad acts” are considered tortious interference with prospective contractual or business relations. Leaving something undefined is better for plaintiffs; it’s easier to get the case to a jury and then just leave it up to them, serving up the case with as much emotional umph as possible. But no more. Now, a business seeking to prove wrongful interference must prove that the alleged improper conduct was “independently tortious or unlawful.”

Although Texas law has included a cause of action known as “tortious interference with with prospective contracts or business relations” for many years, the conduct that is prohibited had never been defined until 2001. Now, before we go much further, think about that. You could sue someone, or they could sue you, and nobody really knew what it took to win. Or lose. What that means, in practice, is that these cases most often got thrown to a jury without much direction from the judge or the lawyers. Is it just something you know when you see it? Is that really justice?  This is just one instance of “sight justice.”  There are still others in Texas and federal law.

Prior to this case, judges got around the lack of a specific definition by using broad, vague terms to define the standard of unacceptable, illegal conduct, terms like “wrongful,” “malicious,” “improper,” of “no useful purpose,” “below the behavior of fair men similarly situated,” or “done with the purpose of harming the plaintiff.” Would you like a side of loopholes to go with that? Conduct that is “competitive” or “privileged” or “justified” is exempt, even if it is meant to harm the plaintiff.

Well, the Texas Supremes finally got ahold of a case that gave them the opportunity to, as they said, “bring a measure of clarity to this body of law.” And fortunately, they did just that. In the process, they even admitted that these vague concepts “have not only proved to be overlapping and confusing, they provide no meaningful description of culpable conduct…” So, let’s look at the clearer standard of prohibited conduct, and then apply it to some examples.

Here’s the rule, quoted directly from the Texas Supremes: “we conclude that to establish liability for interference with a prospective contractual or business relation the plaintiff must prove that it was harmed by the defendant’s conduct that was either independently tortious or unlawful. By ‘independently tortous’ we mean conduct that would violate some other recognized tort duty.” That’s on Page 2 of the opinion, and of course the Court next says “We must explain this at greater length…” and continues for 21 additional pages with 84 footnotes.

Now for some examples the Court used to show us what this cause of action is all about.

First example. A defendant threatens a customer with bodily harm if the customer does business with the plaintiff. In that instance, the defendant’s acts towards the customer were independently tortious–known as “assault”–and so that defendant would have committed tortious interference with prospective business relations of the plaintiff.

Second example. One business (the one who becomes the defendant) says something defamatory or fraudulent about the plaintiff to a prospective customer or business relation of the plaintiff. Again, we can point to conduct already prohibited by law–defamation and fraudulent misrepresentation. Are you getting the sense that this cause of action has now been substantially narrowed in its application?

Third example, slightly more complicated. One piece of real property, desired by two different persons, in beautiful Nederland, Texas. This tract of property was situated right next door to the local Wal-Mart, and Wal-Mart held a right to approve development of that tract. Harry Sturges, III, Dick Ford, Bruce Whitehead and J.D. Martin, III, (we’ll call this group the “Local Investors”) negotiated a contract with Bank One, Texas, to buy this piece of property. They planned to construct a 51,000 square foot facility, and they had a non-binding letter of intent to then lease said structure to Fleming Foods of Texas. Flemings liked the location, location, location, of being right next door to Wal-Mart.

The Local Investors had one problem. Wal-Mart had only approved a building of 36,000 square feet, so they would have to get Wal-Mart to agree to change the development restrictions to allow the larger 51,000 square foot structure.

Actually, the Local Investors had another, much bigger problem, which they wouldn’t find out about until a little later. But in the meantime, keep in mind that all throughout this process, the Local Investors only had a contract to purchase the property; they never actually purchased the property.

So off they went to Wal-Mart to negotiate the size of the building. A manager in Wal-Mart’s property management department told the Local Investors to submit their revised site plan, and indicated that Wal-Mart would approve it. The Local Investors were seeing the gold.

Unbeknownst to that manager, though, higher up the Wal-Mart management food chain, Wal-Mart had decided to either expand the Nederland store, or move it. The assignment of figuring out which, and acquiring the necessary dirt in either case, eventually went to local realtor Tom Hudson. This guy was like “Magnum, P.I” without the Ferrari, but then could you imagine somebody actually tooling around Nederland, Texas, in a Ferrari?

Hudson discovered the Local Investors’ plans to buy the adjacent lot. And he dutifully, and perceptively, told Wal-Mart to just deny the Local Investors’ request to approve the revised site plan. Wal-Mart did so. Hudson then contacted Fleming Foods and said, basically, “‘Heads I win, Tales you lose’ because either we get the property you wanted, for Wal-Mart’s expansion, or Wal-Mart won’t be there when you build your store, and Wal-Mart being there was the only reason you wanted to be there, so….what’s it gonna be?” It didn’t take Fleming Foods long to realize that this was, as the Court says, “an ultimatum not to move forward on the proposed lease with [the Local Investors].” They didn’t, and several months later, Wal-Mart purchased this tract of land and expanded its store.

“Ouch” cried the Local Investors. “Unfair” they screamed.” “We had this deal locked up, and Wal-Mart tortiously interfered with our deal with Fleming Foods.” They claimed all the lost rents as their damages. Never mind that (1) they never actually bought the property, and (2) their deal with Fleming Foods was non-binding, and (3) Wal-Mart had the contractual right to not approve any change to the site plan. Now remember that they never even purchased the land.

So what happened? The case made it to a jury, and the jury slammed Wal-Mart. One million dollars of actual damages, $500,000 in punitives, and $145,000 in “reasonable” attorneys fees. (This being a tort claim, though, the attorneys fees were not awarded.) Wal-Mart then did us all a big favor by appealing this case all the way through to this opinion.

Here’s how the Texas Supremes applied their new definition of this cause of action to these complicated facts. The Local Investors did not have any evidence of any conduct by Wal-Mart that was recognized as “wrong” by any other principle of law. There was no evidence of fraud, no deceit, no misrepresentation. Wal-Mart said they wanted it, and after they derailed the Local Investors’ scheme, Wal-Mart followed through with the purchase and expansion. That Wal-Mart actually bought the tract of real property in question and used it for their expansion basically sealed the deal as to the truthfulness of their statements. With “no evidence” of an independent wrong the case should not have gone to the jury, thus there should have been no jury award, case basically dismissed.

So what does it all mean? I think it means that this nefarious, vague, ambiguous tort claim has had much of its bite, and a lot of its terror, removed. If trial court judges will follow the law and will genuinely consider and be willing to grant motions for summary judgment, this cause of action will decline substantially in popularity. Fewer of these cases will ever get to a jury, and even those that do should go with some pretty detailed instructions as to what the jury must find before imposing liability. And it will give us lawyers a greater ability to plan your conduct as you are aggressively competing for business opportunities of whatever kind.

Wal-Mart Stores, Inc., v. Sturges, 52 S.W.3d 711 (Tex. 2001).

Enviropinions are original writings of Mark McPherson.
© 2014, Mark McPherson. All rights reserved.
15950 Dallas Parkway, Suite 400
Dallas, TX 75248
214-722-7096 Office
214-540-9866 Facsimile
mark@texasenvironmentallaw.com
www.TexasEnvironmentalLaw.com

Non-Jurisdictional Waters in the EPA’s Draft “waters of the US” Rule; Clean Water Act

In the newly proposed rule to re-define “waters of the United States” for purposes of determining which waters (and land areas) are within the jurisdiction of the Clean Water Act, the EPA also proposes to exclude certain waters defined in the draft rule. This post will summarize these non-jurisdictional waters.

These exemptions will become very valuable, and I can foresee fierce disputes over whether a water feature comes within one of these exemptions, because the EPA proposes to let the exclusions trump any language of inclusion elsewhere in the proposed rule. The non-jurisdictional waters are:

(i) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the CWA.

(ii) Prior converted cropland, although the final authority regarding CWA jurisdiction would remain with EPA notwithstanding any other Federal agency’s determination of an area’s status as prior converted cropland.

(iii) Ditches that are excavated wholly in uplands. This means ditches that: (1) at no point along their length are excavated in a jurisdictional wetland (or other water); (2) drain only uplands; and (3) have less than perennial flow. To meet this exclusion the ditch must meet all three sub-parts at all times.

(iv) Ditches that do not contribute flow, either directly or through another water, to a water used or susceptible to being used in interstate or foreign commerce, or interstate waters and wetlands, or the territorial seas, or any impoundments of any of these waters.

(v) The following “features”:

(A) Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease;

(B) Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;

(C) Artificial reflecting pools or swimming pools created by excavating and/or diking dry land;

(D) Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons;

(E) Water-filled depressions created incidental to construction activity;

(F) Groundwater, including groundwater drained through subsurface drainage systems; and

(G) Gullies and rills and non-wetland swales.

Now let’s look at some statements included in this draft rule that define “gullies”, “rills” and “swales.” Put aside for the moment any preconceived notions of these terms, or how they may be defined in other contexts.

Gullies. Gullies are relatively deep channels that are ordinarily formed on valley sides and floors where no channel previously existed. The two main processes that result in the formation of gullies are downcutting and headcutting, which are forms of longitudinal (incising) erosion. These actions ordinarily result in erosional cuts that are often deeper than they are wide, with very steep banks, often small beds, which typically only carry water during precipitation events. Gullies are younger than streams in geologic age and typically lack an ordinary high water mark (OHWM). They are commonly found in areas with low-density vegetative cover or with soils that are highly erodible. EPA notes that some ephemeral streams are called ‘‘gullies’’ when they are not gullies in the technical sense.

Rills. Rills are formed by overland water flows eroding the soil surface during rain storms. Rills are less permanent on the landscape than streams and typically lack an OHWM.

Swales. Swales are non-channelized, shallow trough-like depressions that carry water mainly during rainstorms or snowmelt. Swales typically lack the OHWM that is characteristic of jurisdictional streams. Swales may also be considered wetlands if they fit that definition. Wetland swales would also be analyzed either as adjacent waters or as “other waters”, depending on whether they meet the proposed definition of “adjacent.”

Finally we come to “puddles” which, you will note, is not included in the list of excluded waters. Supposedly this is not because EPA considers puddles jurisdictional, it is because EPA now thinks ‘puddles’ is an insufficiently precise hydrologic term. So while you may still call your favorite Poodle Puddles, using the term in this rule would be contrary to the stated goals of increased clarity, predictability, and certainty. The EPA was also concerned that listing puddles could have created the misunderstanding that anything larger than a puddle was jurisdictional, which is not the intent of this rule.

Now, remember that the overall concept behind this draft rule is that all waters in a basin that have a “significant nexus” or connection with a traditional “waters of the US”, are also waters of the US. While this section defines non-jurisdictional waters, the EPA still plans to use non-jurisdictional waters to connect other waters together.

Exclusion as a “waters of the US” is not a complete pass under the CWA. Some of these geographic features (ditches, rills, gullies) may function as ‘‘point sources’’ under CWA section 502(14), such that discharges of pollutants to waters through these features may be subject to other CWA regulations (e.g., CWA section 402).
The EPA is specifically requesting comments to more clearly define the differences between jurisdictional waters and non-jurisdictional waters, including these proposed defined terms. Please see my separate blog post compiling the issues on which the EPA is specifically requesting comments throughout the entire draft rule.

So here’s where the water really turns to mud on these non-jurisdictional waters. Can you and nine other people of normal but different intelligence and experience, exercising normal discernment, look at the same property and come to the exact same conclusion about which parts of the property are jurisdictional? And remember, the fine for being wrong could be a cool $75,000 per day. If not, then maybe there are some changes you could suggest to the EPA in the form of written comments to this rule.

 

How to Comment on the EPA’s “Waters of the US” Proposed Rule; Clean Water Act

UPDATED 2014-10-08: On April 21, 2014, the EPA published its draft rule redefining “waters of the US” for purposes of the Clean Water Act.  The 90 day comment period closes July 21, 2014 October 20, 2014 November 14, 2014.

The best source of information about the mechanics of filing the comments, and the substantive rule, may be found at:

http://www.regulations.gov/#!documentDetail;D=COE_FRDOC_0001-0673

The process is very simple.  You can create a PDF document of your comments and upload it on this page.  Your comments will be available to the public, and you can see all other comments filed. While it is possible to upload a document in other formats than PDF, such as Word, I strongly suggest you use PDF so it cannot be easily manipulated by others.

The Docket ID number for this rule project is EPA-HQ-OW-2011-0880, and the official proposal is in 79 Fed. Reg. 22,188 (April 21, 2014), but you can most easily access it on the website referenced above.

In fact, in my opinion this website’s design and function is superb, certainly at the other end of the spectrum from all the negative criticisms made about the health care website.

While I don’t have high expectations that comments which are radically different than the draft rule will successfully persuade the EPA to change its draft, I think it is important to understand that comments have other important effects.  The ultimate purpose of filing comments is to bring about change, and that change may come in any number of different ways.  They give you the opportunity to communicate with others who have a similar perspective.  Comments identify you to allies that otherwise may never know you.  Your comments will encourage others that have like concerns.  Your comments may inspire others to incorporate your ideas with theirs as they move forward with further challenges to the rule.  And your comments may be useful in future lawsuits filed against the rule.

Just remember, the deadline to file comments is July 21, 2014.  Other of my blog posts describe the substance of the proposed rule, summarize some of my concerns with this proposed rule, and one lists the issues on which the EPA has specifically requested comment.  If you file comments to this rule proposal, I’d appreciate it if you would Email me a copy when you do, to mark@texasenvironmentallaw.com.

Comments EPA Wants on its Proposed “Waters of the US” Rule

I originally intended this post to be a list of the issues on which the EPA and USACE have specifically requested comments in the draft rule proposing to redefine “waters of the US” for purposes of the Clean Water Act.  But the list is too long for a post.  So I will instead provide a very broad overview of the comments the agencies hope you will file.  If you want the full compilation, please send an Email to mark@texasenvironmentallaw.com and I will send you that PDF.

The agencies see the world of water in three categories: (1) those clearly subject to CWA jurisdiction; (2) those clearly not subject to CWA jurisdiction; and (3) “other waters”, the jurisdiction of which must be determined on a case-by-case basis.  In the most general terms, the agencies want a rule that eliminates as many of these class-3 “other waters” as possible.

On one hand, the agencies want to write a rule that provides predictable, consistent “yes” or “no” answers to the jurisdictional question, reasoning that this certainty is more efficient for both the regulators and the regulated.  Without countervailing considerations, such a rule would be fairly easy to write.

But on the other hand, the agencies want to include as a “water of the US” every water the federal government has power to regulate under the Commerce Clause, in order to fulfill their CWA responsibilities.  Since the exact outer limit of Commerce Clause power is clear as mud, these two highest priorities are incompatible from the get-go.

Within these priorities, the agencies have proposed a series of new and pre-existing defined-water-feature terms.  They generally want comments as to how the rule could better differentiate between these terms, which include “tributaries”, “wetlands”,“ditches”, “gullies”, “rills”, and “swales.”  They seem to want a specific water feature to clearly fit only one of these definitions.  Obviously, these types of comments are more in the wheelhouse of hydrologists and environmental consultants.  However, the definition of “tributary” also tests the outer boundaries of Commerce Clause jurisdiction.

This draft rule also includes old and new defined terms that describe how one water feature relates to other water features.  These terms include “adjacent”, “region”, “neighboring”, “riparian area,” “floodplain”, “bordering” areas, and waters with a “significant nexus” to other waters in the relevant watershed/basin.  I think these definitions seem to mostly answer the question “do I [the agency] have legal jurisdiction over this water feature?”  These are blended legal and scientific queries.

In regard to the case-by-case category of jurisdiction, i.e. “other waters with a significant nexus”, the agencies want as many suggestions as possible which propose to identify classes and categories of waters within this category that could instead be jurisdictional or non-jurisdictional by rule.  The agencies will even consider different rules for different areas of the country.  For example, the agencies are considering whether to determine by rule that prairie potholes, Carolina and Delmarva bays, pocosins, Texas coastal prairie wetlands, and western vernal pools, either alone or in combination with ‘‘other waters’’ of the same type in a single point of entry watershed, have a significant nexus and are jurisdictional (or, perhaps, non-jurisdictional).

Finally, in their ideal world, the agencies want a rule that “rolls with the changes.”   By this I mean they want a rule that automatically expands their CWA jurisdiction in the future as new scientific research identifies more connections between water features.  If this rule proposal hasn’t challenged you enough yet, this concept should get your noodle gyrating.

As I said at the outset, this is a very, very broad overview of what types of comments the agencies hope you will file.  For the more complete compilation (which has much more detail), please send an Email to me at mark@texasenvironmentallaw.com and I will forward you my list.

The Moral to the Story of the Dry Lake Granbury

I have been extremely intrigued by the ongoing fight between property owners around Lake Granbury and the Brazos River Authority (BRA).  I was prompted to write this blog post after reading this news article in the Texas Tribune: http://www.texastribune.org/2014/04/14/water-policy-divides-conservatives-and-republicans/

The property owners are trying to force the BRA to store a larger volume of water in Lake Granbury so they can use their boats and other water toys.  An empty reservoir also reduces the fair market value of their property, so they’re also angry that they still have to pay property tax on what hasn’t been highest-value lakefront property for a few years now.

But so far, in my opinion, they have not done the one thing they need to do to solve their problem, instead spending a lot of money on irrelevant efforts, and making statements that may hurt the stability of Texas more than they help.  However, this kerfuffle does give us an opportunity to understand how Texas surface water rights work in the real world, and there’s a moral to that story. So let’s take a look.

The BRA is an agency created by the Texas Legislature. Its purpose is to develop and manage the water resources of the entire Brazos River basin.  To that end, since its creation the BRA has paid money to buy water rights and build reservoirs.  The BRA is a self-funding agency. Its revenues from water sales pay all its expenses.

One of the reservoirs it built in the Brazos River was Lake Granbury, in Hood County Texas, circa 1969.  The BRA obtained the legal right from the State of Texas to impound up to 155,000 acre-feet of water in Lake Granbury, but as originally constructed it could only hold up to 129,011 acre feet of water.

The State of Texas owns all surface water in Texas, and holds it in trust for its citizens.  To obtain rights to use state water, one must obtain a permit.  Each permit is limited by a volume of water one can use.  Most permits also restrict what the water can be used for to uses stated in the permit.  These permits are “first in time, first in right” so, when there’s not enough wet water to match the paper water permitted, the most recent permit holders lose the right to water first.

For purposes of this dispute, these are the three critical terms in the BRA’s permits as they relate to Lake Granbury: (1) the date of the permit which establishes its relative seniority; (2) the volume of water authorized for use by the permit; and (3) the type of water use authorized in the permit.  The various water rights in Brazos River water owned by the BRA are in writing and filed of public record.  There is nothing secretive or mysterious about them.

The BRA holds two permits of interest here.  One permit authorizes the BRA to use 64,712 acre feet of water for municipal (that’s indoor household and office use), industrial, irrigation and mining purposes.  The date for this permit is July 23, 1964.  Then the BRA also holds a permit to use up to 10,000 acre feet of water for municipal purposes, 70,000 acre feet for industrial purposes, 19,500 acre feet for irrigation, and 500 acre feet for mining.  The date for these rights is February 13, 1964.  These rights total 164,712 acre feet of water per year, which is more than the 129,011 acre feet of water that may be in Lake Granbury at any point in time.

In this second permit, there is a special condition written into the permit.  It says “Owner [BRA] is also authorized to use the water impounded in Lake Granbury for nonconsumptive recreational purposes.”  But the BRA is not required, in either of these permits, to maintain a minimum volume of water in Lake Granbury.  Nowhere in state law is the BRA required to maintain a minimum volume of water in Lake Granbury.  Nowhere in state law is recreational use of water in a reservoir a higher priority use than another type of use.

This “first in time, first in right” system has been in place for a very long period of time.  Buyers and sellers of water rights, and their lawyers and consultants, have conducted due diligence on the value of water rights, and the need for more or less water rights, using this system.  Those who have played by the rules to obtain more valuable senior water rights, would be punished unfairly if the rules of the game were now changed to move “recreational use” up the priority ladder as compared to the permitted uses.

The only way to secure a minimum amount of water in Lake Granbury for recreational purposes is for those persons who desire a full lake to purchase, for cash, surface water rights in the Brazos River that are older than the rights held by the BRA. This would take acquring rights granted in or before 1963.  It may be necessary to purchase even older rights if someone else (non-BRA) has an older right to use Brazos River water.  But this sort of due diligence is feasible to complete.

Then, consider perhaps creating a non-profit entity whose sole purpose is to manage those water rights in a manner that maintains the most water possible in Lake Granbury for recreational purposes.  This may require TCEQ approval to change the use of the purchased water right to recreational use, but there is a well recognized process for such a change.  Then donate the rights purchased to that non-profit and enjoy the fuller lake.  When someone makes a call on a water right in the Brazos River in the future, defend against the call as allowed by law, to keep the least amount of water from leaving the lake.  There are plenty of issues to argue about within this first-in-time framework, but the framework itself cannot be up for negotiation every time it pinches someone.  The pinch is what creates order, predictability, and value.  The pinch is good for Texas.

The “Save Lake Granbury” property owners have a Facebook support page here: https://www.facebook.com/pages/Save-Lake-Granbury/143015725731806.  Interested parties in and around the lake must have some amount of money available to purchase water rights.  They already rounded up and paid $100,000 as an initial retainer for lawyers, with those lawyers saying this battle could cost up to $500,000.  They’d be a lot more likely to have water in their lake if they put that money toward buying water rights instead of paying lawyers.

There is no need to attack central planning, “Austin,” or politicians.  None of those attacks are relevant.  Surface water rights are private property.  The BRA permits clearly identify and define the BRA as “owner” of those rights.  People generally don’t want the government telling us what to do with our private property, Tea Party members in particular, so why would the rules be different for a quasi-private agency, that has purchased private property rights in the free market economy?  Why force any property owner to do something with its property it has never been required to do before?

The solution to the property tax problem created by no water in the reservoir, is to address the assessed value of the property used to calculate property taxes.  The lack of water in the lake is merely a fact, evidence to be used in a hearing to contest those assessed values.  It’s not the conclusion. The assessed value is the conclusion.  In relative terms the property’s assessed value is the dog to the tail of how much water is in the lake.  There is a well known process available to challenge assessed values.  Use it!

And before someone hurls a tomato or three at me, just know this.  My father in law lives on a lake, also managed by the BRA.  He has a boat dock, a boat and other water toys.  We love to enjoy the lake.  But we haven’t been able to get out on the lake the last few years because of the drought.  I understand the frustration this causes.  But trying to change the rules of the game isn’t the right solution.  Paying lawyers big bucks to try to change the rules of the game, with so little chance of success, makes even less sense to me.  Use the money to buy water rights.  Play the game the same as everyone else.

So let’s cut through to the moral of this story, and all those others like it across Texas.  These owners are mad, upset, frustrated, etc., because their expectations and perhaps assumptions that their lakefront property would always front a wet lake, have been dashed.  I get that, and I don’t intend any of this post to denigrate those feelings.  But people who want to purchase lakefront property should include in their due diligence, and factor into their purchase decision, the risk that the lake may dry up depending on drought and the other water rights in that river segment.  There are experts around Texas that can help you do this for whatever lake or river you are considering.  It should be the prospective purchaser’s decision to use them to then decide whether or not to purchase the lot, and to live with the consequences of that decision.