Spillgate failure on Lake Dunlap

[Rusty Shackelford 414]

What I was trying to point out is that the dams subsidized the water supply side because the water rights to this surface water would not be there without the dams.

They still have the same water rights to the water in the Guadalupe River, they just have less storage.

[Rusty Shackelford 414]

CRWA is a major purchaser of Raw Water from the Guadalupe Blanco River Authority. GBRA sells CRWA stored raw water from Canyon Lake and CRWA diverts this water from Lake Dunlap to the Lake Dunlap WTP. In addition GBRA diverts water from Lake Dunlap and via pipeline delivers water to the Hays/Caldwell WTP.

https://www.crwa.com/about-crwa/

[JesusSweatDuck 17780]

14 minutes ago, Rusty Shackelford said:

 

They still have the same water rights to the water in the Guadalupe River, they just have less storage.

 

Correct, they do but those rights were "transferred" to water supply side from the hydro side.  They run the two business on separate books.  The water supply side never compensated the hydro side for those water rights.

[relapse98 634]

2 hours ago, JesusSweatDuck said:

Not directly related, but most property owners are not upset about dewatering only. If there were some viable plan in place I would imagine the reaction would be very different

Not really a way for GBRA to make natural gas more expensive other than hopes and prayers, because that's really the majority of the underlying issue. When the lakes were built, there wasn't abundant electricity. Corporations were formed to bring hydro electricity to the rural areas around the lakes. Now that there are other ways of making electricity cheaper... the dams don't pay for themselves, they in fact lose money each year. So I don't know how we get past that very basic fact. They could de-energize them (I've heard rumors that some may have already been) but then there is even less money coming in to pay for dam maintenance - they have been maintained over the years, just not to the highest quality and most extensive.

There has to be a viable funding plan developed. That is the fix. Do we want the state to hand over money from the other 28 million Texas citizens? Allow the adjacent landowners to form a water improvement district and tax themselves for the repair and maintenance?

[relapse98 634]

29 minutes ago, Rusty Shackelford said:

CRWA is a major purchaser of Raw Water from the Guadalupe Blanco River Authority.

Yep. One of GBRA's jobs is to develop water resources. Done. I think it's currently in vogue for those against GBRA to say "oh no, they are taking that water and redirecting it to other places"... that are in the same watershed. One of their major jobs is to supply water to the growing number of people and GBRA does that job pretty damn well.

Edit: And let's be clear about where that water getting diverted from Dunlap is being diverted from. Both sets of pipes are at the dam or in the canal. They don't have those pipes under I35 ,they are at the very end of Dunlap.

Edited September 13, 2019 by relapse98

[Bookman 4610]

17 hours ago, JesusSweatDuck said:

I don't know if it is a separate legal entity, but the funds are there for the repairs but they're in the water supply side. GBRA's argument for not using those funds is that it would not be fair to their water customers and GBRA would likely be sued by their water customers if those funds were used for dam repair.

What I was trying to point out is that the dams subsidized the water supply side because the water rights to this surface water would not be there without the dams.  The argument GBRA is using is flawed.

This isn't about public safety, several local officials have proposed multiple ways to protect the public without dewatering. GBRA wants to either get local funds to build a different type of dam (hydraulic), or exit the management of the dam business. This is nothing but a power play by GBRA

What do you mean by power play? And what do you mean when you say "water rights"? Rights to do what exactly?

[relapse98 634]

Quote

#UPDATE FROM THE COURTHOUSE:
GBRA proposed a settlement agreement to stop the drain and close the lakes temporarily while experts do inspections. Judge gave attorneys time to discuss the offer. The court will recess until 1 p.m.

I think that's fair.
But you know someone is going to violate whatever the closure rules are. Hell, people couldn't stay off the dams last time GBRA reminded them, once again, that it's dangerous and illegal.

[JesusSweatDuck 17780]

35 minutes ago, relapse98 said:

I think that's fair.
But you know someone is going to violate whatever the closure rules are. Hell, people couldn't stay off the dams last time GBRA reminded them, once again, that it's dangerous and illegal.

This would need to come with a commitment from GuadCo Sheriff to police the closure.  Either way, seems like a reasonable compromise for the immediate future.  Gives everyone a bit more time to figure out the long term resolution.

[JesusSweatDuck 17780]

On 9/14/2019 at 1:34 AM, Bookman said:

What do you mean by power play? And what do you mean when you say "water rights"? Rights to do what exactly?

GBRA has the water rights to sell surface water to public utilities.  Here's a good story on how the rights have been shifted and why the lakes no longer matter to GBRA - https://therivardreport.com/water-rights-shuffle-set-stage-for-lake-draining-plan-says-former-gbra-official/

[JesusSweatDuck 17780]

I don't have a sub, but looks like some sort of temporary settlement was reached

 

https://www.expressnews.com/news/local/article/GBRA-homeowners-negotiating-settlement-to-halt-14443171.php

[Bookman 4610]

SEGUIN — The Guadalupe-Blanco River Authority and lakefront property owners who sued the agency agreed Monday afternoon to a compromise: the four lakes won’t be drained, at least for now, but people and their boats have to stay off the reservoirs.

In addition, an appointed three-member panel of experts will determine the future use of lakes McQueeney, Placid, Meadow and Gonzales.

[Bookman 4610]

I was interested legally in the inverse condemnation claims. Looks like we won’t get an opinion on that, but I’m glad they resolved their differences. 

This agreement doesn’t resolve the real problem though — the dams are failing, and there’s no money to fix them.

[JesusSweatDuck 17780]

 

1 minute ago, Bookman said:

I was interested legally in the inverse condemnation claims. Looks like we won’t get an opinion on that, but I’m glad they resolved their differences. 

This agreement doesn’t resolve the real problem though — the dams are failing, and there’s no money to fix them.

Agreed, but it does buy time for all the parties to come up with a long term plan.

[relapse98 634]

This is definitely a win for the school districts - that is the #1 thing that people on both sides kept bringing up... what would the draining do to the district budgets. Now it's a win win. The lakes stay filled, the schools stay funded. Good job on both sides.

Edited September 16, 2019 by relapse98

[Bookman 4610]

The important thing is the lawyers got paid.

[Ghost of LL 15492]

It's a pretty goddamned good power play.  

As to @Bookman's question, a "water right" is the property right to use surface water.  All surface water belongs to the state, unless the state conveys a water right through a TCEQ adjudication.

The TCEQ adjudication comes with a bunch of restrictions.  Often, the use is restricted, for example.

And also, I join Bookman in not understanding the basis for the inverse-condemnation claim.  That just seemed really questionable to me.

Edited September 16, 2019 by Ghost of LL

[TwiceHorn 31283]

37 minutes ago, Ghost of LL said:

It's a pretty goddamned good power play.  

As to @Bookman's question, a "water right" is the property right to use surface water.  All surface water belongs to the state, unless the state conveys a water right through a TCEQ adjudication.

The TCEQ adjudication comes with a bunch of restrictions.  Often, the use is restricted, for example.

And also, I join Bookman in not understanding the basis for the inverse-condemnation claim.  That just seemed really questionable to me.

I don't know all the ins-outs-and-what-have-yous of the inverse condemnation claim, but it seems facially plausible:  the government does something that pretty severely curtails the use or value of your land without paying compensation.  This would seem to fit.  Flooding someone's land is a classic inverse condemnation case, so it seems draining it would be as well.

Granted, it isn't yet ripe until the lakes are drained, and I am aware that certain governmental rights and powers (abate nuisances) trump the inverse condemnation claim.

[CooterBrown 17913]

The difference is flooding directly affects your land. Draining the lake affects the land adjacent to your land.

[Ghost of LL 15492]

26 minutes ago, TwiceHorn said:

I don't know all the ins-outs-and-what-have-yous of the inverse condemnation claim, but it seems facially plausible:  the government does something that pretty severely curtails the use or value of your land without paying compensation.  This would seem to fit.  Flooding someone's land is a classic inverse condemnation case, so it seems draining it would be as well.

Granted, it isn't yet ripe until the lakes are drained, and I am aware that certain governmental rights and powers (abate nuisances) trump the inverse condemnation claim.

No, no, no--flooding "takes" your land for public use.  That's what we're talking about--a "taking" under the Takings Clause.  Inverse condemnation is just a flavor of a taking.

If the government floods your land to build a new reservoir, then I've taken your property.  In that case, just compensation must be paid.  You can have a temporary taking by flood downstream from a dam if the dam's releases make the flood worse than what the natural flow would be.

But here, no property was taken for public use.  Some property value went down, but the government didn't reap the benefit of that diminution in value.

And if that's the theory, where does that end?  If the city builds a road out front of your business and then has to close it down (or narrow it, making traffic bad) for a few weeks and costs you business, is that a taking?  If the school district does badly on the state testing and your property values go down, is that a taking?  And if so, doesn't that incentivize the government never to build roads or schools (or, specific to this case, reservoirs)?

Naw, man--that's not how takings law works.

[TwiceHorn 31283]

26 minutes ago, Ghost of LL said:

No, no, no--flooding "takes" your land for public use.  That's what we're talking about--a "taking" under the Takings Clause.  Inverse condemnation is just a flavor of a taking.

If the government floods your land to build a new reservoir, then I've taken your property.  In that case, just compensation must be paid.  You can have a temporary taking by flood downstream from a dam if the dam's releases make the flood worse than what the natural flow would be.

But here, no property was taken for public use.  Some property value went down, but the government didn't reap the benefit of that diminution in value.

And if that's the theory, where does that end?  If the city builds a road out front of your business and then has to close it down (or narrow it, making traffic bad) for a few weeks and costs you business, is that a taking?  If the school district does badly on the state testing and your property values go down, is that a taking?  And if so, doesn't that incentivize the government never to build roads or schools (or, specific to this case, reservoirs)?

Naw, man--that's not how takings law works.

Well, that's the criticism of regulatory takings, which I think this could fall squarely under.  The action of GBRA is ostensibly for the public benefit, it certainly claims so.

And, the claim may ultimately fail because it's not a "taking," or because it isn't for the public benefit, after development of the evidence, but I wouldn't say it's facially implausible as in Rule 11/13 violation.

Edited September 17, 2019 by TwiceHorn

[ButtFumble 5158]

I have a potential solution

buy one or both of the old quarries just southeast of New Braunfels the one closest is 200 meters of elevation at some of the lowest parts the one further away is 235 meters in elevation

use them as storage, pipeline to Dunlap where the dam is 176 meters of elevation

put a 2 way pump/generator at the outlet into Dunlap so power supply #1

rebuilt Dunlap with a 2 way pump generator power supply #2

then rebuild McQueeney, Placid, Meadow, Lake Gonzales, MA Wade, Wood, all to be generators/pump backs

so that is 8 power supplies there

then at the dam that is right at the edge of Gonzales rebuild it to have a 46 mile pipeline that goes to an abandoned quarry near Nursery, Texas (elevation drop from 81 meters to 25 meters) the end of that is power supply #9

that lake holds the end use water

then go to San Marcos and buy an old quarry there like near Hunter 219 meters in elevation and run a pipeline to the dam just west of San Marcos on the river power supply #1 is the outlet of that pipeline

then go to the San Marcos River and rebuild the dam just west of San Marcos, the one at Martindale, Staples, Luling, so power supply #2, #3, #4, and #5

combined you have 14 power supplies and about 60 miles of pipelines

start of the day you let the water out of the quarries and it runs down each river through those dams until the rivers meet and then at Gonzales the last dam runs that water down to the Nursery, Texas quarry where it is held

end of day and into the night when power demand is low you pump the water back up to behind the dam at Gonzales and from there each dam reverses their turbine and pumps the water back through the dams until at Dunlap and west of San Marcos the water is pulled and pumped through the pipelines back to the quarries and ready for the next day

do that day in and day out every day at the time of highest demand when the prices are highest

plus catch the "green energy credits".....at night make sure to capture the west Texas wind that is surplus and often pays you to take it (more and more coming online with grid improvements and Lubbock joining ERCOT and those associated grid improvements)

just pump the water back and forth every day with only 10 or so miles of pipelines each from quarries to Dunlap and the San Marcos River and then the last 46 miler to the storage the rest is the river being the pipelines and the dams moving the water back and forth

[The People’s Elbow 707]

On 9/12/2019 at 2:04 PM, NeverMarryAStripper said:

Works fine for beavers

Not if you want to avoid a UTI. 

[Bookman 4610]

13 hours ago, Ghost of LL said:

It's a pretty goddamned good power play.  

As to @Bookman's question, a "water right" is the property right to use surface water.  All surface water belongs to the state, unless the state conveys a water right through a TCEQ adjudication.

The TCEQ adjudication comes with a bunch of restrictions.  Often, the use is restricted, for example.

And also, I join Bookman in not understanding the basis for the inverse-condemnation claim.  That just seemed really questionable to me.

Do the adjacent landowners have no riparian rights?

[conVINCEd 21468]

It always fun when the surly barristers get to dust off their old law school textbooks for topics like water rights and maritime law.

[relapse98 634]

1 hour ago, Bookman said:

Do the adjacent landowners have no riparian rights?

I would guess no since they (almost all) don't own the property all the way to the origibal river bed.

Let me ask it a different way. If my neighbor builds a pond that goes up to our property line, do I now have riparian rights? Because that's the same situation.

[TwiceHorn 31283]

No one has riparian rights, as such, in Texas anymore.  

The pond analogy doesn't quite work because these folks would all have some sort of river or creek backing up their property, no?

This is a pretty good treatise on Texas water laws.  https://www.twdb.texas.gov/publications/reports/infosheets/doc/WaterRightsMarketingBrochure.pdf

[hornian 5205]

29 minutes ago, conVINCEd said:

It always fun when the surly barristers get to dust off their old law school textbooks for topics like water rights and maritime law.

Except Ghost of LL actually does this kind of work as part of his practice. 

[Brisketexan 104628]

13 minutes ago, TwiceHorn said:

No one has riparian rights, as such, in Texas anymore.  

The pond analogy doesn't quite work because these folks would all have some sort of river or creek backing up their property, no?

This is a pretty good treatise on Texas water laws.  https://www.twdb.texas.gov/publications/reports/infosheets/doc/WaterRightsMarketingBrochure.pdf

Well, that's a good treatise on water rights.  Which are a creature of surface water (which gets legal treatment significantly different from ground water).  In short form, surface water is the state's water -- it belongs to the State of Texas.  However, certain users have rights to a certain amount of that water in certain waterways/basins -- i.e., "water rights."  A few decades ago, the ad hoc water rights that existed were all subjected to adjudication -- you had to prove up your historic use, that sort of thing, and then you got an adjudicated water right from the state.  But water rights are just one facet of "water law."

As to riparian rights, they are still a thing, but they are quite limited -- essentially, they are limited to domestic and livestock use.  If you are adjacent to a river, you can put in a pipe to draw water for your house, and to water your cattle (but not to irrigate the pastures they are on).

This is indeed an interesting case.  But like many such cases, the ultimate solution will almost certainly be political, not legal.

Edited September 17, 2019 by Brisketexan

[Ghost of LL 15492]

2 hours ago, hornian said:

Except Ghost of LL actually does this kind of work as part of his practice. 

And obviously Brisket does, too.

15 hours ago, TwiceHorn said:

Well, that's the criticism of regulatory takings, which I think this could fall squarely under.  The action of GBRA is ostensibly for the public benefit, it certainly claims so.

And, the claim may ultimately fail because it's not a "taking," or because it isn't for the public benefit, after development of the evidence, but I wouldn't say it's facially implausible as in Rule 11/13 violation.

It's not a regulatory taking because (1) we're not talking about a regulation (e.g., zoning or other land-use restriction) and (2) it's not a taking because it doesn't render the land economically unviable or unreasonably interfere with the property owner's rights to use and enjoy the land.  GBRA did something with it's land.  It didn't tell the homeowners to do/not do anything with their land.  And even if they did, the homeowners' properties are still economically viable and can be used as homes.  The value may be diminished, but the value has not been destroyed.

I do think this is close to a Rule 13 issue.

But I also think Brisket is right.  The solution is political.  Which actually makes one wonder when GBRA is up for sunset review.

[relapse98 634]

15 minutes ago, Ghost of LL said:

Which actually makes one wonder when GBRA is up for sunset review.

    Next Review Date: 2030-2031 Review Cycle - 92nd Legislative Session

• Last Review Date: 2018-2019 Review Cycle - 86th Legislative Session

They were actually reviewed this past session, and the sunset staff made good recommendations.
I don't think GBRA has been fully open about known issues in the dams until Dunlap exploded. And the people living along the lakes (other than Lake Wood) were pretty quiet about any issues, too. It's been covered in the annual financial reports that the dams needed repair, but for some reason GBRA didn't seem to go asking the state for help with the finances - they have no authority to tax, can't take money from the water supply side to repair unrelated dams, don't receive state appropriations. Now the state might listen, in 2021.

[Beau Vine 54003]

9 hours ago, Ghost of LL said:

And obviously Brisket does, too.

It's not a regulatory taking because (1) we're not talking about a regulation (e.g., zoning or other land-use restriction) and (2) it's not a taking because it doesn't render the land economically unviable or unreasonably interfere with the property owner's rights to use and enjoy the land.  GBRA did something with it's land.  It didn't tell the homeowners to do/not do anything with their land.  And even if they did, the homeowners' properties are still economically viable and can be used as homes.  The value may be diminished, but the value has not been destroyed.

I do think this is close to a Rule 13 issue.

 

I'm probably wrong, but this sounds exactly like inverse condemnation.  How am I wrong?

[NotActuallyALonghorn 4968]

What happens to any boat docks or boat houses that were built on the water? Does that become the property of whoever's gets the former lake bed? 

[RPM 26229]

12 hours ago, Brisketexan said:

If you are adjacent to a river, you can put in a pipe to draw water for your house, and to water your cattle (but not to irrigate the pastures they are on).

Had a neighbor get into this during a drought in the 70's. He was a peanut farmer and irrigated his crops with a well nobody knew about. Somebody turned him in for irrigating out of the creek that ran through his place. State sent him a cease & desist and threatened a $1000 a day fine. He called the ASCS man out to his place and drove him down the dry creek bed in his pickup. The state dropped the charges.

[Ghost of LL 15492]

10 hours ago, Beau Vine said:

I'm probably wrong, but this sounds exactly like inverse condemnation.  How am I wrong?

"Inverse condemnation" is just a subcategory for a taking under Article I, Section 17 of the Texas Constitution.  The government can "take" your property by condemning it and going through the process of adjudicating just compensation.  Or it can "take" your property through some intentional act.  In the latter instance, you have to sue the governmental entity for a taking without just compensation.  That's an "inverse-condemnation" suit.

But the key to an inverse-condemnation suit is that there has been a taking.  There's no taking here.  The property owners still have their property.  They can do whatever they want with it.  There is nothing to prevent them from using and enjoying the property.

[Ghost of LL 15492]

10 hours ago, NotActuallyALonghorn said:

What happens to any boat docks or boat houses that were built on the water? Does that become the property of whoever's gets the former lake bed? 

I don't know who owns that formerly submerged land.  It could be the adjoining landowners, and they just conveyed to GBRA a flooding easement.  In that case, the land remains theirs.

Or it could be that they conveyed the land to GBRA, and GBRA granted them an easement to build docks/boathouses.  In that case, the boathouses and docks are still fine (though they serve no purpose).

[NotActuallyALonghorn 4968]

Could their be some legal argument that draining the lake infringes on their easement, since a dock or boathouse needs water to be useful, and that granting the easement implies a guarantee that said easement would continue to be useful?

[Beau Vine 54003]

30 minutes ago, Ghost of LL said:

"Inverse condemnation" is just a subcategory for a taking under Article I, Section 17 of the Texas Constitution.  The government can "take" your property by condemning it and going through the process of adjudicating just compensation.  Or it can "take" your property through some intentional act.  In the latter instance, you have to sue the governmental entity for a taking without just compensation.  That's an "inverse-condemnation" suit.

But the key to an inverse-condemnation suit is that there has been a taking.  There's no taking here.  The property owners still have their property.  They can do whatever they want with it.  There is nothing to prevent them from using and enjoying the property.

A reduction in market value is not sufficient?  I thought I remembered a slew of IC lawsuits when Bergstrom was built?

[TwiceHorn 31283]

13 minutes ago, Beau Vine said:

A reduction in market value is not sufficient?  I thought I remembered a slew of IC lawsuits when Bergstrom was built?

There is a category of taking generally known as "regulatory taking," in which value or use is diminished short of complete occupation or exercise of dominion over the land or property.

It's very squishy, and subject to a lot of criticism, as GoLL notes.  The question is basically "how far is too far," and the answer is unclear.  Just about any time government action results in something like this, there's inverse condemnation suits.  They may not be successful, there are a number of procedural barriers in addition to the ultimate question, but they seem to have enough teeth to get some type of settlement going.

Thus, my expression of surprise that he and Bookman were surprised that there were inverse condemnation claims made.

Edited September 18, 2019 by TwiceHorn

[Ghost of LL 15492]

Just now, Beau Vine said:

A reduction in market value is not sufficient?  I thought I remembered a slew of IC lawsuits when Bergstrom was built?

Not really.

There is such a thing as "taking-by-nuisance."  If the government builds a wastewater treatment plant next to your house and the odors make it impossible for you to go out on your patio, I think that is a taking.  Likewise, if the government builds an airport next to your house and makes it so that you are hearing jet engines at all hours, that would probably be a taking.

But in both instance, the government's use of its property invades yours.  It's sending odors or noise on to your property.  And it's doing something that infringes on the use or enjoyment of your property.  You can't go out on your patio because of the odors; you can't sit in your living room and talk to your wife because of the noise (though for some of us that might make the property more enjoyable).

I think that's very different from what we have here.  Draining a lake doesn't do anything to invade adjoining property.  The adjoining properties derive their value from their owners' ability to come onto the government's property.  But the government's property is still the government's property.  Barring people from using it doesn't impact the use and enjoyment of the adjoining properties by their owners.

It deprives the adjoining landowners of a government-funded amenity to which they previously had privileged access.  But what's the theory on that?  That once the government provides an amenity, it is constitutionally obligated always to provide that amenity?  So if the government closes a neighborhood playground, does it commit a taking of the next-door neighbor's property?

As a public-policy issue, if that were the rule then governments would never build any amenities.  No government would ever build a playground or a school or a park knowing that if it closed the playground/school/park at some point in the future, it would be liable for a taking of neighboring properties that have used that playground/school/park. 

[TwiceHorn 31283]

20 minutes ago, Ghost of LL said:

Not really.

There is such a thing as "taking-by-nuisance."  If the government builds a wastewater treatment plant next to your house and the odors make it impossible for you to go out on your patio, I think that is a taking.  Likewise, if the government builds an airport next to your house and makes it so that you are hearing jet engines at all hours, that would probably be a taking.

But in both instance, the government's use of its property invades yours.  It's sending odors or noise on to your property.  And it's doing something that infringes on the use or enjoyment of your property.  You can't go out on your patio because of the odors; you can't sit in your living room and talk to your wife because of the noise (though for some of us that might make the property more enjoyable).

I think that's very different from what we have here.  Draining a lake doesn't do anything to invade adjoining property.  The adjoining properties derive their value from their owners' ability to come onto the government's property.  But the government's property is still the government's property.  Barring people from using it doesn't impact the use and enjoyment of the adjoining properties by their owners.

It deprives the adjoining landowners of a government-funded amenity to which they previously had privileged access.  But what's the theory on that?  That once the government provides an amenity, it is constitutionally obligated always to provide that amenity?  So if the government closes a neighborhood playground, does it commit a taking of the next-door neighbor's property?

As a public-policy issue, if that were the rule then governments would never build any amenities.  No government would ever build a playground or a school or a park knowing that if it closed the playground/school/park at some point in the future, it would be liable for a taking of neighboring properties that have used that playground/school/park. 

Now the bolded makes sense as a reason this isn't cognizable as a taking.  I suppose the lakebed is indisputably the government's as the flooding was no doubt a taking?

 

Edited September 18, 2019 by TwiceHorn

[Ghost of LL 15492]

17 minutes ago, TwiceHorn said:

Now the bolded makes sense as a reason this isn't cognizable as a taking.  I suppose the lakebed is indisputably the government's as the flooding was no doubt a taking?

 

I don't precisely know.  The (previously) submerged land either belongs to GBRA, or it belongs to the landowners subject to GBRA's flooding easement.  I suspect it's the former, but it could be the latter.*

But yeah--before the lake was inundated, GBRA went to the landowners and paid just compensation for the taking of the land that occurred when it was flooded by the lake.  So whether by ownership in fee-simple or by flooding easement, GBRA has a property right to the submerged land.

 

 

 

*  By the way--Lake Travis illustrates this difference.  Almost all of the land submerged underneath Lake Travis is owned by LCRA in fee simple.  Before inundation, LCRA went to the landowners and bought up the land.  Entire ranches were conveyed to LCRA, and LCRA owns that land to this day.

But there are some inlets and coves in which LCRA did not buy the land, they just obtained a flooding easement.  Devils' Cove is one of those.  For whatever reason, LCRA only acquired a flooding easement, and the adjoining landowners retain ownership of the submerged land.  So they can anchor their boat docks on their submerged land without LCRA's permission.

Edited September 18, 2019 by Ghost of LL

[Brisketexan 104628]

4 minutes ago, TwiceHorn said:

Now the bolded makes sense as a reason this isn't cognizable as a taking.  I suppose the lakebed is indisputably the government's as the flooding was no doubt a taking?

 

In such situations, the gov't entity acquires what's called an "inundation easement."  It is a permanent easement, but it's typically not a guarantee that there will be water over that land at all times.  For example, the LCRA has an inundation easement for the land around Lake Travis, up to a certain elevation.  That's why folks who built a structure within that easement don't have a claim for damages -- LCRA has a dominant right to flood that land.  The folks around the Lake have no basis for action whether the LCRA inundates that area (woohoo, more lake to play on) or leaves it high and dry (so sad, less lake).

GOLL's analogy to the playground is spot-on, and it's what I would have used.  The lake is a gov't-owned amenity.  Its proximity to your property enhances your property value.  But that does not create an obligation on the part of the gov't to keep and maintain that amenity, lest if face a takings claim (because after all, your Pulte home in the new Happy Ranch subdivision is absolutely worth more with a nice park and playground across the street than it would be if the park wasn't there).

But, again, in cases like these....the issues and challenges are as much political as they are legal.  I doubt that GBRA really WANTS to drain the lakes.  It's just in the position that river authorities can find themselves in -- they are gov't entities without taxing authority.  If they don't have any more water to sell, and hydro isn't generating revenue, they simply don't have the ability to raise money to do dam repairs.  If it's such a public desire....then there ought to be a public solution.  And that will likely be political.

 

[relapse98 634]

12 minutes ago, Ghost of LL said:

I don't precisely know.  The (previously) submerged land either belongs to GBRA, or it belongs to the landowners subject to GBRA's flooding easement.  I suspect it's the former, but it could be the latter.*

AFAIK, all the land under the lakes belongs to GBRA/state of Texas.  All the property lines in the appraisal website go up to the edge of the lake but not into it. There was some early talk early on about someone researching their titles because they thought they might own land under the lake, but that chatter stopped months ago. I think the lawyers in the 2 cases would have brought it up if someone had been able to find something.

 

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But there are some inlets and coves in which LCRA did not buy the land, they just obtained a flooding easement.  Devils' Cove is one of those.  For whatever reason, LCRA only acquired a flooding easement, and the adjoining landowners retain ownership of the submerged land.  So they can anchor their boat docks on their submerged land without LCRA's permission.

That's crazy. Looking at the map, there's whole swaths over in that area where there is land owned all the way down to the original riverbed. I wonder why on earth LCRA didn't buy them out.

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Capitol Rod & Gun Club v. Lower Colorado River Authority

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LCRA obtained an easement by instrument dated March 27, 1939, from TLCC to inundate approximately 176.92 acres of land situated below the 670-foot contour line.

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Thereafter the Board of Directors of LCRA determined to increase the height of Mansfield Dam to provide a spillway of 715 feet. In response to the insistence of the federal government, LCRA adopted a policy on October 19, 1939, that all land acquired thereafter must be in fee simple and that no further purchase of easements would be approved.

So, things I learned. LCRA paid for inundation easements, early on. And also increased the dam height by 45 feet between the original plan and the final build.

[Ghost of LL 15492]

8 minutes ago, relapse98 said:

That's crazy. Looking at the map, there's whole swaths over in that area where there is land owned all the way down to the original riverbed. I wonder why on earth LCRA didn't buy them out.

I don't know.  That's long before my time.

My educated guess is that with landowners near the old Colorado River, their entire property was inundated.  So why retain any interest in the submerged land if your entire property was going to be underwater?  But on some of these smaller coves or inlets, only a portion of the property was going to be flooded.  And when you're talking about a flood-control reservoir with a highly variable lake level, there are going to be plenty of years in which that property isn't going to be submerged.  In those cases, the landowner may have only offered a flooding easement.

And if you're LCRA, you don't give a shit whether you have the property in fee simple or have a flooding easement.  You get to put in your lake regardless.  So if the landowner only wants to offer a flooding easement, there's no reason to bargain for more.

[ButtFumble 5158]

1 hour ago, Ghost of LL said:

I don't know.  That's long before my time.

My educated guess is that with landowners near the old Colorado River, their entire property was inundated.  So why retain any interest in the submerged land if your entire property was going to be underwater?  But on some of these smaller coves or inlets, only a portion of the property was going to be flooded.  And when you're talking about a flood-control reservoir with a highly variable lake level, there are going to be plenty of years in which that property isn't going to be submerged.  In those cases, the landowner may have only offered a flooding easement.

And if you're LCRA, you don't give a shit whether you have the property in fee simple or have a flooding easement.  You get to put in your lake regardless.  So if the landowner only wants to offer a flooding easement, there's no reason to bargain for more.

and for the land owner a good reason to only sell flooding so you do not end up with a situation like Medina where property between you and the water becomes an open playground when the water is low

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37 minutes ago, ButtFumble said:

and for the land owner a good reason to only sell flooding so you do not end up with a situation like Medina where property between you and the water becomes an open playground when the water is low

I'm just suprised LCRA didn't use eminent domain and just buy the land under the lake level(s).

Most Corps lakes (Lake Travis is not one) that I know of are like that. Your land goes to a certain level, past that, it's open land and you either can't build a dock or you can with very controlled requirements. And that government land is free for anyone to use.

Edited September 18, 2019 by relapse98

[Rusty Shackelford 414]

I'm just suprised LCRA didn't use eminent domain and just buy the land under the lake level(s).
Most Corps lakes (Lake Travis is not one) that I know of are like that. Your land goes to a certain level, past that, it's open land and you either can't build a dock or you can with very controlled requirements. And that government land is free for anyone to use.

IIRC Canyon Lake has a tiered system of ownership. Everything below normal full pool 909’ is owned by the government but between 909’ and 948’ they own an inundation easement on private property (where you can’t have any structures)

[Bookman 4610]

12 hours ago, TwiceHorn said:

Thus, my expression of surprise that he and Bookman were surprised that there were inverse condemnation claims made.

I wasn't surprised they made the claim. They had to claim something.

[Beau Vine 54003]

https://spectrumlocalnews.com/tx/austin/news/2020/07/31/settlement-reached-in-guadalupe-valley-lakes-lawsuit-