PLUM CREEK CONSERVATION DISTRICT
Easement Use Rules
December 20th, 2022
General Information
From time to time, Plum Creek Conservation District (“The District”) has received requests for“approval” of certain projects that are in the planning stages for construction or development in thearea of the District’s easements or near the Project Sites (or “Lakes”) that the District maintains under
Agreements between the District and the Natural Resources Conservation Service. The purpose of thisStatement is not to address every project under consideration by a landowner finding themselves is thatcircumstance but, rather, to outline the factors that the District takes into account when it receives sucha request from a landowner. The goal is to set out the District’s position on various types of requests
while stating that this Statement still allows individuals to present a particularized proposal and ask for
input or thoughts from the District. This Statement will contain several sections as follows:
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9.

Introduction and general rules.
Subdivision plat approval requests.
Easement modification requests.
Buildings of structures of various types.
Excavation or fill requests.
Livestock and fencing.
Use of the “works of improvement” or easement areas at the various sites.
Additional water flow or pollution from stormwater drainage.
Easement descriptions.

1. Introduction and General Rules.
Plum Creek Conservation District (“the District”) is a political subdivision of the State of Texas created bya special act passed by the Texas Legislature. The original purpose of the District was to act as theprimary local sponsor for long term maintenance of several small dams that were designed andconstructed by what is now the National Resources Conservation Service (“NRCS”) under a Federal
Statute: The Small Watershed Protection Act. One of the first duties after the District was formed wasto acquire easements that were to be used for the construction of small dams in the Plum Creek
Watershed in Hays and Caldwell Counties in Texas. The dams were then designed and constructed by
NRCS under the provisions of the Federal Act, PL 83-566. The general location of the dams was
described in a “Small Watershed Work Plan” that originated with NRCS.

Ultimately there were two work plans. One was for the upper part of the watershed and the other forthe lower part. Eventually the District acquired easements for the dams to be constructed and water tobe impounded upstream from the location of the dams.
The District, as the Primary Local Sponsor, operates the dams under Agreements with the National
Resources Conservation Service (“NRCS”) imposing obligations stated in various Agreements to operate
and maintain certain facilities that were constructed by NRCS under the Small Watershed Protection Act
about 50 years ago.
As “Primary Local Sponsor” the District, was required to obtain easements that would allow the NRCS
Dams and other “works of improvement” to be constructed. Generally and while there can be specificstatements in a particular easement that set out use of the land covered by the easement’s terms, theeasements recite that the landowner in an area covered by one of those easements has the ability tomake any use of the property burdened by the easement that does not interfere with the District’s
ability to make use of the easement.
Under Texas Law an easement describes the rights of a party to use property that is owned by anotherparty. The easement terms are considered to be “primary” so the underlying landowner has the duty to
avoid doing anything on the property in the area covered by an easement that would interfere with theeasement owner’s right of use as described in the terms of the easement. Because the purpose of theeasement is to allow the construction, maintenance, operation, and even the alteration of the various“works of improvement” in the Small Watershed Protection Project, when a request is received theDistrict has to understand exactly what is proposed and then determine whether there is anything in the
proposal that would interfere with the District’s rights under the terms of the Easement for theparticular tract involved.
Because the dams and other “works of improvement” were designed by NRCS and the duties of theDistrict are described in Agreements between the District and NRCS, and because the District does nothave its own engineering staff to evaluate whether some request for construction or a change in thearea that may be in an easement or impacted by the operation of a dam, the first action taken by theDistrict, after an initial determination about whether there is something planned that may impact theoperation of a particular dam, is to gather information about the proposal and then refer that
information to NRCS for evaluation.
2. Subdivision Plat Approval Requests.
Plum Creek Conservation District is a political subdivision of the State of Texas and has only thosepowers expressed in legislation under which the District operates. None of those powers gives theDistrict authority over the platting of subdivisions.
In cases of subdivisions proposed to be located near or on its easements, the District first refers
development plans of various types to NRCS for engineering review and a determination about whether

there would be some impediment to the operation of the dam or other works of improvement with theconstruction and then operation of the planned development. While this question may seem to bestraightforward, it is not always one that has an uncomplicated answer.
The easements held by the District not only allow construction of water control structures designed toregulate the flow of water in a stream impacted by rainfall events, but also allow the impoundment ofwater in areas above a dam (and, in some cases, downstream from a dam) that is designed andconstructed to regulate stream flow after a rainfall event. However, neither the District nor NRCS makes
any determination about whether any of the property in a planned development would be subject toflooding as a result of any rainfall event, but the sole examination is whether the District could still flow
water over lands in the area of the easement in accord with State law and the terms of the easement.
If the District is advised by NRCS that there would be some impediment or problem with plans related toany proposed development that could impact or affect the operation of a dam, the District responds bymaking the NRCS comments available to a landowner whenever it becomes aware of those problems inor with a planned development.
At the time the original easements were obtained for the Plum Creek and Lower Plum Creek Flood
Protection Projects, the easements had descriptions of “general” or “blanket” easements and did nothave specific descriptions using metes and bounds areas. The reason that there is no flooding
determination is that NRCS is not a part of FEMA efforts to define and regulate flooding protection. The
NRCS program for small watershed protection was developed and put into place years in advance of thelaw that created FEMA, the Federal Agency now generally in charge of flood protection and mitigation.
Most of the easements described the use of a portion of a larger tract of land but did not put the area ofthe easement in a particular area. The actual area of the easement was to be determined during
construction.
Generally, the area of the dam and other “works of improvement” that were originally built by NRCS are
shown on the final construction plans made upon completion of the original works. For legal reasons,
there were areas upstream of a constructed dam that would retain water impounded by the dam after arainfall event. The dams were designed as “passive” structures with the purpose of regulating runoff in
streams after a rainfall event. The amount of water generally behind a dam in the Project had threecomponents. The first was a “sediment” pool that could have “permanent water” behind the dam. It
was designed to have sediment accumulate in it over time but as originally constructed was never tocontain more than 200 acre-feet of water. That amount of water made the dam “exempt” from having
to obtain a water rights permit to impound State water under a Will Wilson Attorney General’s Opinion
issued in 1947. Above the area of the sediment pool was an area that was designed to hold more than
the water in the sediment pool, but the amount of water varied with hydraulic conditions and the dam
design for each structure. The design of the structures was to allow impounded water to be released via
an outlet works at a controlled rate. If the rainfall event caused more than the amount of water for thatstructure’s design to be retained, then the excess water flowing into a lake after a rainfall event would
be released via flow in an auxiliary spillway until the water level in the lake was low enough to allow theexcess stored behind the dam but above the sediment pool to flow out of the lake using the outlet
works designed and constructed in the dam.
The area that was to contain impounded water in the event of a particularly heavy rainfall event was
originally estimated by NRCS to cover an area of two feet above the highest elevation of the emergency
spillway, and the design of the spillway capacity was thought to be enough to release the remaining
water flowing into the lake as it flowed into the lake.
All the calculations of capacity and area were related to data that were known at the time of the design
and the dams were designed to be “low hazard” structures because there was very little residential andcommercial development in the areas surrounding the location of the dams. Over time, several inputs
into the design of the structures have changed.
For one thing, the areas surrounding many of the dams as originally constructed have been developed
into residential and commercial areas. So, a number of the structures, or dams, are now classified as“high hazard” dams.
A second change has been that the rainfall records have changed so that now the rainfall even can be as
much as 30% greater than the event used in the original planning for runoff into the structure.
A third change has been that the State of Texas has passed legislation to address dam safety throughout
the State. That program is administered by the Texas Commission on Environmental Quality. Under
Rules adopted by that agency, a primary local sponsor, as PCCD is still, is now considered the “owner” of
one of the dams under Texas Dam Safety Rules. Those Rules require that a high hazard structure must
be able to pass 78% of the PMF, or Probable Maximum Flood event. Because of changes in rainfall
events and the other factors originally used to calculate capacities and determine performance, theresult is that PCCD is responsible for a structure that may have to have more area upstream related toflooding and also have to have more capacity to store or pass incoming flows for a particular Lake.
The District is aware that there are existing and proposed subdivisions of property in the vicinity of dams
maintained by the District under its agreements with NRCS and the District encourages owners ofproperty in the vicinity of its easements to advise any purchasers of lands in areas in the vicinity of thedams, and streams on which the dams are located, that some or all of the property would be subject toflooding under a variety of circumstances so that the owners of those properties can acquire flood
insurance. However, the platting or development of land in the area of the District’s easements arethings that are between a landowner and an appropriate local political subdivision.
Recently the District has received requests related to subdivision platting when developers are facedwith local requirements to have storm water detention facilities included in proposed subdivision plats.
The District has taken the position of referring those types of requests to NRCS for determinations about
whether the use of the Lakes for storm water detention is permissible according to NRCS. The mostrecent response from NRCS states that:

NRCS does not allow flood control dams it has designed to be used as detention/retention
storage on a case by case basis. When local stormwater runoff regulations requiredetention/retention storage facilities the NRCS strongly recommends those be followed as if theflood control dam was not there. [The site in question in this instance] is not designed for fully
developed land use conditions in its watershed , therefore, following the local runoff regulations
will aid in the proper function of the dam site.
3. Easement Modification Requests.
There can be several different types of Requests received for modification of easement terms. Some ofthose involved restatement of the easement area to one having a “metes and bounds” description.
Others can involve stating changes in the elevations that are used to describe the easement area. Somecan involve specific changes to the terms of an easement to address specific uses that would be
proposed.
In terms of restating an easement area by using metes and bounds descriptions, one factor that is
considered by the District is that the Agreements between the District and NRCS now have a clausestating that: “All land rights must be identified by metes and bounds survey conducted by a professional
land surveyor.” The District has responded to that statement in Agreements with NRCS by noting that ispresents a significant change from what was originally required of the District when it obtained land
rights and that the District was not able to immediately comply with that change. The result is that theDistrict has been addressing requests for modification of the descriptions in easements on a case bycase basis.
One of the problems facing the District in restating the areas covered by an easement is that the areathat is subject to having water on it as a result of any rainfall event is an estimate and is based onassumptions within the estimate of several things. Those things include assumptions of rainfall intensityand duration, runoff characteristics in the watershed that feeds the stream impounded by the Dam, andthe area of the watershed the has runoff into the Lake formed behind the dam. The District did notdesign, nor did it construct the dam and other “works of improvement” at any of the Sites for which it isprimary local sponsor. The District has no consulting engineers under contract to review developments
or other improvement that may impact the continued operation of any of the dams to assure that they
will continue to function as originally conceived and designed. The District also now has certain
responsibilities to the Texas Commission on Environmental Quality and to the Texas State Soil andWater Conservation Board with respect to the Dam and operation of each of the Lakes the District
maintains. The TCEQ requirements are also things that have come into existence during the period
PCCD has been acting as primary local sponsor. The District has to take whatever steps it can to assurethat all the requirements Imposed in Agreements with NRCS and by the TCEQ Dam safety program are
met and those things could impact the description of the area that is impacted by a particular dam.
Another thing that is now in the Agreements with NRCS is a statement that PCCD is to: “,,, work withvarious governments involved in flood protection and/or real estate businesses to inform upstream

landowners of the flood potential of new or existing development below the top of the dam elevation.”
While that statement does not directly impact the description of the area covered by an easement, it
does point to the fact that there could be an area outside the stated easement area that is subject tohaving stormwater on it because of a particular extreme storm event.
If there is a request to modify an easement to state it by metes and bounds, or to alter elevations used
to describe an easement area, the following things are to accompany the request:
1. A statement of the basis for the request detailing calculations showing that the existingeasement in the area of or to the elevation of the proposed modification or release is no longer
required for the operation of the flood control project;
2. A survey showing the proposed easement elevation or modification or the area proposed to bereleased relative to the District’s flood control easement area and specifying land surface
elevations in the area proposed for release as well as the elevation of the top of nearest
downstream dam. Such survey shall bear the seal of a Registered Professional Surveyor of theState of Texas; and3. If the request is being submitted in conjunction with a proposed or planned subdivision of theproperty covered by the PCCD easement, then a copy of the proposed subdivision plat or ametes and bounds descriptions of the property before and after the proposed subdivision
including a depiction of the location of the PCCD easements prepared by and bearing the seal ofa registered land surveyor will also need to be provided; and4. A suggested recordable form for the easement modification or release if there is an application
to modify or release all or a part of a PCCD easement covering a particular property. This
document should be in a format that is acceptable to Caldwell and/or Hays County for recording
and will need to be approved by the District’s Attorney and the regional office of NRCS.
In addition, the Request will be required to address the following:
Indemnification: The applicant will be required to provide a draft of a recordable release andindemnification document or use the provide a willingness to execute such a document in the form
approved by the District’s Attorney, to be recorded with any construction, development or
excavation activity described in the application or associated with any platting or subdivision activity
described in the application for property that is included within any of the District’s easements. The
indemnification will be required to recognize the existence of the appropriate impounding structure
or structures that might be impacted by the proposed application and acknowledge that any damage
associated with backwater flows or elevations of water associated with the existence of the structure
or structures are not compensable. The document will also release the District from any such claims
for damages associated with the work described in the application and be binding on successors andassigns of the property.
In addition, the Request shall be subject to payment of appropriate fees to the District as follows:
Fees: Each application will require the payment of the fee, as listed in the District’s Fee
Schedule, for review of the application, site inspection, and legal review for each request for proposedconstruction of buildings, roadways, and cuts/fills within and District flood control easement. If any
construction, excavation, or fill is commenced prior to formal approval by the Board of Directors of theDistrict; then the required fee will be 150% of that fee listed in the District Fee Schedule. Each request

for modification or release of an easement area or elevation will require the payment of the fee, as
listed in the District’s Fee Schedule, for review of the request, site inspection, legal review, andCaldwell or Hays County filing fees for the easement modification or release. Any required fees,
including estimates and deposits for unknown costs, must be paid before review of the applicationcommences.
4. Buildings and Structures of Various Types.
As noted above, the District is now required to “,,, work with various governments involved in flood
protection and/or real estate businesses to inform upstream landowners of the flood potential of new
or existing development below the top of the dam elevation.” The District has been conveying thisinformation in each instance that it receives a Request for construction of some improvement in thearea that is close to, or in, an easement area. As a result, the District will require a statement in each
response to any Request that the language quoted above is included. The District has also beenencouraging those who would market property in the area to advise prospective owners of theavailability and desirability of an owner obtaining Flood Insurance to cover any potential damage fromwater that could be impounded by the Dam that the District is obligated to maintain under its
Agreements with NRCS.
When the District becomes aware of some activity planned for the area surrounding one of the dams forwhich the District is the Primary Local Sponsor under the terms of an Agreement between the District
and NRCS the practice of the District is to have the proposed work reviewed by NRCS for an initialdetermination of whether the operation or capacity of the Lake impacted by the design would bealtered. There are times that NRCS has recommendations for changes in design of the proposed workand those recommendations are then passed along to those proposing the development.
5. Excavation or Fill Requests.
In addition to an engineering review of the impacts of the proposed improvements, the District mustalso be aware of and consider that impacts of any design on State requirements on reservoirs like those
constructed by NRCS. Among other things, that requires the District to be aware of any “improvement”
that could result in a change in the character of the impoundment from being “exempt” from permitting
under State Law to one requiring a permit. That means that the District has to be cognizant of anythingthat could impact property owners outside the area of easements held by the District as well as the“sediment” pool capacity of the area upstream of the dam. (The sediment capacity has an upper limit of
200 acre-feet in order for the dam to be exempt from the State requirement for a Water Rights permit.)
In addition, there are other requirements under Texas law that may come into play with the review ofany planned development in the area above one of the Dams. Among those things is an examination ofwhether a particular improvement would cause water to be impounded or diverted onto property not
owned by the Applicant.
Again, the first step in the process of evaluating the impacts of planned structures is a review by NRCS
engineers on the impacts that the planned structure might have on the operations of the dam andrelated lake to control flood waters. As noted above, the impacts could be nothing more than to let anowner know that floodwater may flow across land that is to be used with the consequential impact offlood water damage. However, there could also be impacts on the capacity of the dam to impoundwater in a lake or on the area that impounded water could be after a rainfall event.
As with other requests, if a determination is made that there could be an impact on the functioning of
the dam and its associated lake, the person proposing the structure or other change is notified. While
there could be alterations made in the design of the proposed structure to assure that there is no
impact from the planned construction, the rule is that there can be nothing constructed that wouldinterfere with the operation of the dam and related “works of improvement” as flood control structures
under the original NRCS design or under Federal or State laws that have come into effect since theoriginal design and construction.
Two types of things that are always of interest to the District and to NRCS are excavations of fill activities
that may impact the amount of water that could be Impounded after a rainfall event and whether there
would be property outside the initial area contemplated that could be impacted by the retarded water
flow. So Requests that seem to indicate that there will be excavation close to the area of “normal”
water retention and even those areas that may be subject to having impounded water over them will beof special interest to both NRCS and the District.
6. Livestock and Fencing.
Over the years the District has received a number of questions and has observed a number of problems
related to livestock use of easement areas, both those having dams and other works of improvement onthem and on areas that are intended for just having impounded water.
There are provisions in many of the easement that allow the District to build fences to protect the dams
and works of improvement from damage caused by overgrazing or by erosional trails created bylivestock paths from areas that do not regularly have water to water impounded by the dams. There arealso some easements that contain special provisions on fencing.
If there are special provisions on fencing those will be honored unless it is obvious that the fencing
installed does not protect the dams or other “works of improvement” from damage caused by livestock.
Normally the District will not object to livestock grazing on the dams or on other areas that areconsidered to be in the “works of improvement”, such as constructed spillway areas that must be
maintained to pass large flows of water after rainfall events. However, the District will monitor theareas of the dams and other “works of improvement” and make determinations about whether anowner’s stocking rate is in excess of one that would prevent excess erosion or impact the establishmentof the vegetative cover required to maintain a dam or other area. If there is a concern aboutovergrazing or trails caused by animals in searching for water, the District will initially bring the problem
to the attention of the owner of the land where the damage is being observed and making a requestthat the animals be removed until the vegetative cover is re-established or the eroded areas arerepaired.

If there is damage caused by trails of livestock established to obtain water, the District may seek to havethe landowner pay for the repairs. That is particularly true if the problem has been observed prior todamage being noted but no action is taken to control livestock movement.
The District is aware that some landowners allow others to run livestock over an owner’s land. The
District’s position is that the landowner is responsible for not interfering with the easement holders
rights to maintain the dam so the District will always approach the landowner to prevent or correct any
observed problems.
The dams are inspected regularly by both NRCS and TCEQ. If either of those two agencies observe
problems with overgrazing or other activities that may lead to erosion on structural problems thatshould be corrected the landowner will be provided with copies of the reports. IF the problems are
related to landowner operations either directly or indirectly because of tenants’ actions, the landowner
may be brought into an action to correct any observed damage.
If the District’s actions related to livestock grazing or trails is not sufficient to prevent a perceived
problem from becoming worse, the District may take action to build additional fencing and to exclude
livestock that are causing the damage. The District will then seek to recover expenses and costs related
to the damage from a landowner.
7. Use of the “Works of Improvement” or Easement Areas at the Various Sites.
The District is aware that, because of urban development. That several landowners have planned, or
existing, uses of the areas covered by the District’s easements for what can be considered “recreational”
purposes. The priority of the District is that no recreational use of an area covered by an easement heldby the District interfere with the purpose of the easement: allowing the construction and operation of aflood control structure under the provisions of the Small Watershed Protection Program. Many
recreational uses of the easement areas do not interfere or harm the area to the extent that there
would be interference with the District’s use of the are under the terms of its easement. However,there are some that require special consideration.
One of those uses could be “trails” for walking or bicycling in the area of an easement that would notnormally have water but could after a rainfall event. The District expects that if such a use is allowed,
the responsible owner of the land allowing that use will advise users that water may suddenly be
impounded after a rainfall event and there is no responsibility on the part of the District to prevent
damage to property or people using the area should such an event happen.
It should be noted that the dams constructed are not designed for vehicular traffic or any type. Use of
the surface of the top of a dam from vehicular traffic, even such vehicles as golf carts or ATVs, could
result it damage to the surface of a dam that would have to be corrected. IF such damage does occur
the District would seek reimbursement for the amount it would take to repair the damage.

There are other actions that could be taken by a landowner that could also result in damage to a dam orother works of improvement. For example, the District must maintain the surface of the Dams withappropriate vegetation. “Appropriate vegetation” is not something that will allow deep roots topenetrate through the dam surface and such vegetation will be removed. There can be constructed
paths for carts of various kinds but the construction details on the dam or on surfaces close to a dam orother “works of improvement” are subject to review and approval by NRCS and the District to assurethat there is no construction that interferes with the primary purpose of the use of the dam for flood
control purposes.
The District also faces questions from time to time about the use of water in the Lake that are formed
upstream of the dams. The water impounded in the Lakes is State Owned Surface Water and use issubject to provisions in the Texas Water Code. Generally, the water can be accessed by livestock for
drinking purposes but there can be questions about whether the livestock must be kept confined toareas that are owned by an individual who allows access to the water for that use.
The State Water impounded behind the dams that are maintained by the District are restricted to use
for “Domestic and Livestock” purposes. There have been situations where the entire surface of water ofa lake has been used for recreational purposes. State Water Law requires that such a use must beallowed by an appropriate permit issued by TCEQ. Only one of the District’s Lakes has such a permit. IN
addition, with properties under the impounded water now having multiple owners, there can bequestions raised by individual owners of land covered by the District’s easements about whether thoseon the surface should be confined to areas owned be the person giving them access to the water
impounded.
8. Additional Water flow and Pollution from Stormwater Drainage.
During the period of time since the District became the Primary Local Sponsor for the Plum Creek Small
Watershed projects, the District has observed changes in the character of the land draining into theLakes of the Project. Originally the land was largely rural existing in large tracts used primarily forranching but also with some row crop agricultural operations. Over the decades much of the land in theoriginal drainage area, particularly in Hays County, has been urbanized and subdivided. Those changes
have produced impacts that varied from those considered in original designs.
One of those impacts is that there have been increasing discharges of treated sewage effluent into Plum
Creek and its tributaries that are in the area of the Small Watershed Project. There has been at least
one instance where the District has become involved in a hearing on a proposed discharge because of
the changes in flow in the stream and because of water quality concerns. The district is also aparticipant in a group formed to monitor and react to water quality problems that could be observed in
the Watershed. The group was formed after monitoring of the water quality in various places in Plum
Creek within the boundaries of the District revealed sections of the stream that had impaired water
quality from what was expected under TCEQ standards. Because of impaired water quality, theEnvironmental Protection Agency considered establishing a Total Maximum Daily Load rule fordischarges into Plum Creek at various locations. The Plum Creek Watershed Partnership was formed toforestall the imposition of such a Rule.
The District is charged in its agreements with NRCS to participate in monitoring and protecting the water
quality of streams feeding into the Lakes in the Project and the District participates in the Partnership. In
part, to fulfill that obligation in the NRCS Agreements.
The District has also received complaints from time to time about water quality problems in Lakes andstreams flowing into Lakes. In most instances the District has participated with other entities, such as
TCEQ, various municipalities, and entities like the Guadalupe-Blanco River Authority to address thosecomplaints when they arrive.
The District has also received complaints from at least one landowner about the increased flow into a
Lake that, according to a landowner, resulted from discharges of treated effluent. The District has no
authority over such discharges because TCEQ is the sole agency in Texas with that authority. Under
Texas las an entity holding a discharge permit issued by TCEQ has the right to use any watercourse forconveying its discharged water. Therefore, it would be an unusual thing for the District to become
involved in a permit hearing related to planned discharges of treated sewage from either a water quality
or water volume perspective.
In addition to issues related to treated sewage, the District also faces problems from time to time withthe contents of stormwater flowing into Plum Creek and the Lakes in the project related to urban runoff.
That type of runoff can produce materials flowing into the Lakes of the Project that can clog outlet
works and cause increasing maintenance costs for the District related to removal and disposal of thepolluting material. The District is aware of Federal Environmental Protection Rules governing
stormwater runoff and the District expects that those Rules will be implemented and followed by theappropriate political subdivisions. However, it observed problems persist, and communication about
the problem does not produce an appropriate response, the District may seek to recover its excess costsof maintenance from the areas that are producing the problem.
9. Easement Descriptions.
The original easements obtained by the District for use in constructing the Works of Improvement in the
Plum Creek Watershed Project and Lower Plum Creek Watershed Project did not include precise area
descriptions. Rather, the easements were “general” and stated that works of improvement or
impoundment of water by the works of improvement would cover an approximate number of acres outof certain tracts that were then described by citations to title documents that were of record. The clear
intent was to allow the works of improvement to be constructed and water to be impounded by thedams constructed to regulate the storm water flow that entered a watercourse where a dam was to belocated.

Under a Texas Case decided by the Texas Supreme Court in 2020, the easements were to be interpreted
in a manner that allowed the intent of the easement grant to be given effect. The name of that Case isSouthwestern Electric Power v. Lynch,
IN requirements for Primary Local Sponsors, the Natural Resources Conservation Service had changed
the requirements for land rights so that those must be described by metes and bounds as determined bya surveyor. The metes and bounds descriptions tend to show limits on the surface of the area of theeasements. However, that surface area description is not true to the intent of the original easements
terms.
The metes and bounds descriptions that satisfy the requirements of NRCS are of an area predicted to byimpacted upstream from the works of improvement by rainfall from a 100-year 24-hour rainfall event.
The actual area impacted by water impounded by one of the dams constructed under the Small
Watershed Protection Project could be larger or smaller than the description. That is particularly true
because the area is an estimate based on several assumptions. Those assumptions include the area of
the watershed above the structure that contributes water into the structure, the runoff coefficient thatgives an estimate of how rapidly the water falling on the watershed upstream will run off and find its
wat into the pool of water impounded by the structure, and the most recent calculation of the
maximum rate of rain that will fall on the upstream watershed during a storm event.
Since the original time of the design of the various works of improvement there have been changes
primarily in the amount of rain in a storm during a 24-hour period and the rate at which the water will
run off from where it lands during a storm mainly because of development in areas in the upstream
watersheds.
The District’s position is that it has the right under its easements to impound water behind thestructures constructed that will then be released in accordance with the hydraulic capacity of thedesigned structure to release that water because the design of the dams is a passive one that hascertain capacities for water release from the structure. The purpose of the dams in the Project is toregulate flow in streams to the flows that will be released in accordance with the dam’s design. That
protects the areas downstream from the dam and allows some certainty about the water that will becovering lands downstream from the dams so flooding in areas of the dams can be more predictable.
Once a metes and bounds description is produced and filed in real property records in a County property
owners may attempt an assertion that no water from flooding should be a problem outside the area
described by metes and bounds. The District intends to use the area of the original easement for theoriginal purposes and if that means that water will be impounded outside a metes and bounds area theDistrict assert that it has the legal authority to place the water on that land even if the area is beyond
that described in the metes and bounds description.
There is another problem related to describing an easement by metes and bounds where the intent is toimpound water flowing in a stream by a dam that has the purpose of regulating flow. The NRCS

Requirements are for a description of an area that is calculated to be covered as a result of a 24-hour
100-year rainfall event. In fact, Texas Dam Safety Regulations have a different design criterion for dams
on streams such as those maintained by the District. That requirement is that the dam be designed tostay in place while allowing 75% of the Probable Maximum Flood event to flow into the area of
impounded water upstream from the dam. That area may greatly exceed the Metes and Bounds
description area required by NRCS.
For these reasons, the District encourages any property owner to make an independent analysis of thepotential impacts of water impounded from rainfall events that may occur over a particular piece of land
as a result of the presence of the Small Watershed Protection Project dam or even a nearby stream andif there is any possibility that a structure built on land adjacent to a stream that is regulated by one of
the Works of Improvement of an area could be reached by water from a flood event the landowner
either assumes the risk of water damage to that structure or purchase appropriate flood insurance
covering potential damage to the structure.