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<br />. <br />II <br /> <br />. <br /> <br />. <br /> <br />:! <br /> <br />Western States Water Council <br />Legal Committee <br /> <br />San Antonio, Texas <br />October 20,2005 <br /> <br />UPDATE ON "TAKINGS" ARTICLE AND REPORT ON KLAMATH v. UNITED STATES <br /> <br />Jim also provided an update on the article that has been prepared by members of the Legal <br />Committee and staff, under Jim's direction, regarding takings law in the United States as it pertains to <br />water rights and contracts. That article is expected to be published in the December issue of the <br />University of Denver Water Law Review. Jim referred briefly to the recent decision in the Klamath v. <br />United States, where the Court of Claims rejected the plaintiff's argument that the curtailment of <br />deliveries under Bureau of Reclamation contracts in the Klamath Basin in Oregon represented a taking, <br />which required just compensation. The Court of Claims expressly rejected the rationale set forth in its <br />earlier decision in the Tulare Lake case, finding that the claim should be treated as contract law. <br />Although ;it was not entirely clear, it was expected that the plaintiffs would appeal the ruling. <br /> <br />LEGAL ISSUES AND DEVELOPMENTS REGARDING WATER RESOURCES <br />MANAGEMENT IN TEXAS <br /> <br />Kathleen Hartnett White, Chairman of the Texas Commission on Environmental Quality, <br />described the context for water resource challenges in Texas. She noted that population growth was <br />expected to double by 2050, and that a state water plan had been prepared to deal with this and other <br />challenges. Regional water plans and strategies had been developed as part of this effort, and now the <br />impetus was on project planning and permitting. <br /> <br />In this context, many unanswered water law questions have been raised, including issues <br />associated with reuse. She mentioned two brief sections of the water code that were particularly <br />problematic. The Commission had promulgated definitions of key statutory provisions. Public <br />meetings were being held to receive input on these proposals, as well as on other controversial issues, <br />for example, on the question of whether ground water and surface water reuse should be treated <br />differently. <br /> <br />Sbe noted that the majority of regional plans and strategies involve redistribution of existing <br />supply. This means in many cases moving irrigation rights to other uses. Texas has not sufficiently <br />clarified property rights in water, she noted, and this has led to several areas of conflict and confusion. <br /> <br />Claims totaling 13.5 million acre-feet for instream uses were submitted, namely to protect bays <br />and estuaries. The Commission denied jurisdiction with regard to such a claim, and the Texas <br />legislature adopted a law specifying that appropriations were authorized only as expressly provided by <br />law. Litigation ensued and the legislature created an Environmental Flows Commission. They <br />recommended flows totaling 6.5 million acre-feet, but their recommendations have not been enacted as <br />yet. <br /> <br />Commissioner White next described the Edwards Aquifer situation and the challenges that <br />ensued as a result of implementation of the federal Endangered Species Act. In the end, it was <br />determined that the federal government would assume control if the state did not curtail withdrawals <br />from the a.quifer to protect the native species. <br /> <br />3 <br />