The Legislature was looking in the wrong place when it tried to solve the state’s water crisis.
When Governor Rick Perry signed a
landmark water-funding bill last May, he looked and sounded like a confident
leader. “This is making history,” he said about the legislation, which would
divert $2 billion of the state’s burgeoning oil-and-gas severance taxes toward
low-interest loans for cities and water utilities. “We’re securing the future
of our great state by making sure that Texas has the water it needs for decades
to come.” He did not add, “As long as you all think that’s a good idea,” though
he may as well have. Lawmakers made the funding contingent on voter approval to
mollify a small but vocal faction within the Republican party that opposes new
spending of any stripe. Coming as it did in the midst of one of the worst
droughts in state history, the measure’s overwhelming approval in November—more
than 73 percent of voters said yes—was perhaps not surprising.
And its success is something to
celebrate: after years of inaction, Texas will at last have some money to
invest in long-overdue water infrastructure improvements like new pipelines,
expanded water-treatment plants, and perhaps even a new reservoir or two. Two
billion dollars may not sound like much—the 2012 state water plan lists $53
billion worth of projects—but the loans are meant to act as seed money to
leverage more funding, and the money can be lent out again and again as the
original recipients begin repaying their debts.
Yet amid all the backslapping and
self-congratulating, a cloud hung over Perry’s signing ceremony. Dedicating
revenue to new infrastructure is a welcome development, but when it comes to
water, the most vexing and contentious issue has nothing to do with money. If
Perry really wants to “secure the future,” as well as his own legacy, he will
challenge the Legislature to take up what has long been the Gordian knot of
state water politics: the question of who should control the state’s vast
reserves of groundwater. Groundwater in Texas has long been considered private
property, unlike surface water, which is a public resource. The use of
groundwater is governed by the old English common law doctrine known as the
rule of capture. Put simply, any water you find under your own land—as much as
you can “capture”—is yours to use as you see fit. In practice, this means that
whoever puts the biggest straw in the ground gets the most water, even if it
means that wells on adjacent properties run dry. A series of reform efforts by
past Legislatures, coupled with some confounding decisions by the Supreme Court
of Texas, have left us with a legal morass in which no one is really sure who
has the right to pump—or how much. One thing we do know is that groundwater,
much of it piped from rural areas to cities, will become a bigger part of the
water-supply equation as our population grows. Even now private companies known
as water marketers, who buy up water rights from rural landowners and sell them
to nearby cities, are lining up to help their customers get well fields and
pipelines approved for loans from the state water fund, while farmers,
ranchers, and residents of small communities who have historically relied on
that groundwater wring their hands.
At the bottom of this conundrum is a
legal fiction: the notion that groundwater and surface water are somehow
different. Groundwater resides in aquifers, which are essentially enormous
underground reservoirs fed by rainwater filtering down through the earth. If
aquifers are full enough, groundwater will come to the surface as springs,
which in turn feed creeks and rivers. Here in Texas especially, many streams
have holes in their beds, known as recharge features, which funnel surface
water right back into the aquifer. If aquifers are mined—that is, pumped beyond
their capacity to recharge themselves—springs will stop flowing and streams
will dry up. The absurdity of having two completely different regulatory
regimes for what is essentially the same water is an anachronism that Texas can
no longer afford.
Here again it is time for Perry and
the Legislature to lead. But will they? The handling of the water legislation
last session does not bode well, particularly the decision to punt the issue to
voters. What should we think about a Legislature too timid to simply
appropriate the money for such an immensely popular undertaking on its own accord?
“A ship is safe in harbor,” as the saying goes, “but that’s not what ships are
for.” Ships are for sailing, and legislatures are for making decisions—even in
stormy weather.
The rule of capture has been the law
of the land for more than one hundred years, and it worked well enough when
Texas was a rural state with plenty of surface water to go around. But rural
interests realized they needed protection when population growth forced cities
to begin coveting groundwater in nearby counties. Rather than declare
groundwater a public good—anathema in a state that celebrates property
rights—the Legislature began encouraging the creation of groundwater
conservation districts composed of locally elected boards. These districts,
which proliferated in the eighties and nineties, were empowered to limit
pumping to prevent aquifers from being drained, finally putting a curb on the
rule of capture, at least in theory. Landowners who in the past pumped huge
volumes from their wells were generally allowed to continue doing so, even if
it caused their neighbors’ wells to dry up. In fact, most districts are
reluctant to deny any permit request from locals; they see their mission as
chiefly to prevent massive water grabs by nearby cities.
The problem is that districts are
finding it increasingly hard to say no to anyone. In 2012 the state Supreme
Court ruled in Edwards Aquifer Authority v. Burrell Day and Joel
McDaniel that a landowner has the right to his groundwater, regardless of
how many permits a conservation district has already issued, and he may be
entitled to compensation if that right is limited or taken away. The decision
essentially invited landowners—and water marketers who buy up their
water rights—to begin suing conservation districts that deny them permits.
“It’s kind of a funny legal situation,” said veteran water attorney Martin
Rochelle, of Lloyd Gosselink Rochelle and Townsend, in Austin. “You might have
a claim against a groundwater district that says you can only pump so much
water, but your neighbor can come take it from you without paying you
anything.”
The ruling kneecapped the only
regulatory apparatus governing groundwater usage in the state. The battle over
the portion of the Carrizo-Wilcox Aquifer that runs beneath Lee and Bastrop
counties, east of Austin, tells you everything you need to know about how
dysfunctional our current regulatory system is. This part of the Carrizo
underlies some sparsely populated ranch and farming land and holds a lot of
water that has yet to be tapped by any major municipality. It is regulated by
the Lost Pines Groundwater Conservation District, which is currently under
assault by two water-marketing firms, Forestar and End Op. Taken together, the
companies propose to pump annually more than three times the current amount
withdrawn by all the existing permitted wells in the district put together.
Based in Austin, Forestar (a spin-off of Temple-Inland) is one of the nation’s
largest publicly traded real estate companies. It has no firm customer for the
water yet, only a tentative contract with Hays County to deliver up to 14.6
billion gallons a year. But that has not stopped the company from aggressively
pursuing its permit application, even after Lost Pines rejected it, authorizing
instead only 3.9 billion gallons per year. Lost Pines officials presented
evidence from a hydrologist demonstrating that Forestar’s original request was
unsustainable and could eventually cause other wells to dry up, but Forestar
demanded a rehearing and began playing hardball. “If you don’t give us our
request [for a new hearing], this district has issued its last
permit,” the company’s attorney warned board members at a meeting last
fall. Forestar’s resources dwarf those of Lost Pines, and the company seems
determined to punish the district for refusing to buckle under. The company
recently filed a protest against a modest water permit application by a
rendering company in Bastrop, the kind of monkey-wrenching move that threatens
to drown the conservation district in paperwork and legal fees.
It’s not just small-town Texas that
stands to lose if our state’s groundwater imbroglio isn’t resolved soon.
Consider the Devils River, a tributary of the Rio Grande in Sutton and Val
Verde counties, two hundred miles west of San Antonio. Often called the last
pristine river in Texas, the Devils flows through sheep- and cattle-ranching
country so remote that the general public can access it in only a handful of
places. Those who make the effort are rewarded with a vision they are not
likely to soon forget: a perfectly transparent stream with a white limestone
bottom that reflects the sun, making the water sparkle like the Caribbean. The
Devils is a river that seems to flow right out of the nineteenth century. Bass
and gar abound, and the banks are frequented by wild turkeys, deer, and an
occasional black bear wandering up from Mexico. A Comanche astride a horse
would not look out of place.
If this sounds like something you’d
enjoy, go see it soon. The Val Verde Water Company, a water marketer based in Beeville,
has announced a plan to pump as much as 16 billion gallons a year out of the
aquifer that feeds the Devils and pipe it to either San Antonio or San Angelo.
There is no law on the books to stop this tragedy from unfolding; Val Verde
County doesn’t even have a groundwater conservation district. Until now, it
never needed one.
The state would never allocate so
much surface water that an entire river ran dry. Yet the state has left itself
no way to prevent the exact same result, simply because the water feeding the
Devils River will be collected before it makes it into the streambed. The
solution, of course, is to end the rule of capture. Under the current regime,
nobody wins. Ironically, the rule of capture itself makes cities leery of
entering into long-term arrangements with companies like Forestar. If cities in
Hays County did invest money to build a well field over the Carrizo, along with
the expensive pipeline to move the water to their customers, current law does
nothing to prevent another company from rounding up rights on adjacent land and
making a similar deal with the City of Austin, even if everyone agrees that
there is not enough water in the aquifer for both projects to succeed. The
truth is that no water marketer can guarantee a long-term supply of groundwater
if another company can come along at any time with a bigger straw.
The Legislature has always had it
within its power to declare that groundwater, like surface water, is a public
resource. This may seem like an enormous concentration of state power, but it
needn’t be. Local conservation districts, democratic institutions that allow
regional interests to control their own fate, should be permitted to continue
their work. But they must be empowered by the Legislature to do their jobs properly,
which will never happen as long as private property rights are allowed to trump
all other considerations. Pushing that kind of change through the Legislature
will be hard sailing, but that ship will have to leave the harbor if Texans are
to have the kind of rational water policy we deserve. All we need is a captain
unafraid to take us there.
No comments:
Post a Comment