OWNING WATER?

According to a recent report, a wastewater utility in Texas has asserted that it owns treated effluent from its facility and retains ownership even after the effluent is discharged into a river.* The ownership claim was made in an application for a "bed and banks" authorization to help support uses of the river.

Ownership of water, or the lack of ownership, can be a complicated and inconsistent issue across the United States. And, ownership of water does not necessarily mean control or permitted use of water.

For example, in Texas it appears that ownership and control of water depends upon the source of water. Groundwater below land is the property of the landowner, but withdrawal of the water is subject to controls by the state. Surface water is owned by the public and controlled by the state. Storm water is the property of the landowner until it enters a natural watercourse.

Another example is the use of Lake Michigan as a drinking water source. The water may be held in trust for the benefit of the public, but withdrawal of water is subject to control by a US Supreme Court decision in the case of Chicago area; state allocations; an international compact, and other law.

Still another example may be the ownership of a tract of land on which there is a wetland. Te landowner may own the wetland, but may be prohibited from draining or developing it by federal or state law.

If a water utility takes raw water from a source, whether groundwater or surface water, and treats the water to USEPA standards, does it "sell" the treated water delivered to a customer? A sale would imply ownership of the water first by the utility and then by the customer. Some oourts have held that a utility does not sell water. Rather, its charges are for providing a service--finding source water, treating it and delivering it to a customer. In turn, it would appear to follow that a customer has use of the water but not ownership.

Along the same lines, when a drinking water customer flushes wastewater delivered to a sewer, does the wastewater utility (often the same utility that delivered the drinking water) acquire ownership if the influent? Or, does the utility merely provide and charge for a service--receiving and treating wastewater to enable it to be delivered to a waterbody?

In many ways, issues of use or control of water may of greater importance than ownership. At best, the issue of ownership would seem quite fluid.

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*"Water Rights...Even After It Leaves The Pipe?",
WEF Magazine, Nov. 2014, p.19

THE POND

I grew up in a house on the edge of a large prairie. About a block from the house into the prairie was "the pond" as all the kids called it. To a young boy, it seemed as large as Lake Michigan. But in reality, it was probably 50 feet by 100 feet, and no more than 2 feet deep at its high water time.

The pond was a natural depression in the ground, It captured storm water from surrounding prairie. In the Spring, rains helped to fill it; but by August heat, it became a mud flat. The Fall rains replenished it, and Winter froze it over.

In the middle of the pond was a huge cottonwood tree about 5 feet in diameter. Its limbs reached out to cradle the pond, as if to protect it from the winds rippling across the prairie. Of course, those same winds then blew endless cottonwood seeds to clog our window and door screens like glue. Surrounding the pond was a stand of wild crabapple and wild cherry trees woven together by wild grape vines. These became our source for hunting cocoons of cecropia moths.

As we approached the pond, we had to enter into a dense jungle of ragweed plants, seemingly 6 feet tall by late summer. These were a bonus. The stalks made great spears to toss at those large flying grasshoppers which would unfold black and yellow "wings" as they escaped. Also, when hollowed, the stalks made great peashooters with which to harass kids in class when the teacher was not alert enough to catch us.

But, it was the frogs that made the pond. We all knew when Spring had arrived when we heard the frogs loud evening serenade all the way at our house. Frogs meant tadpoles. All the kids would dip mason jars into the pond and gather tadpoles to take home and watch them become frogs, one leg at a time.

The pond was a haven for birds and butterflies. Even when it became muddy in August, tiny blues and yellow sulphurs gathered on the mud to seek moisture. But, by then, the frogs were silent and I wondered what happened to them. Also, one had to walk carefully around land crab holes that seemed to pop up. In winter, kids would ice skate on the pond, carefully avoiding collision with the cottonwood.

Today, there is no prairie. There is no pond. The prairie became endless houses. The pond became a paved street serving those houses, with a slight dip in the pavement where the pond had been. The cottonwood is gone; and when it rains, the storm water pools in the street to be flushed into a sewer or into basements. There are no frogs, except what kids might view on their smart phones.

When ponds of our innocent youth evaporate, maybe we lose a lot more than just the water.