In the Flow Vol: 2 Issue: 3, 29 January 2014

 In the Flow: A Water News Bulletin from the Meadows Center for Water and the Environment and The Texas Tribune

Welcome to In the Flow, a water news wrap-up and analysis prepared every other week by The Texas Tribune and the Meadows Center for Water and the Environment at Texas State University. We bring you the latest news and events concerning the river systems of Texas and important water issues on a state and regional level.

In the Flow Vol: 2 Issue: 3: San Antonio Wants Full Ownership of Wastewater by Neena Satija A bid by San Antonio's water utility to declare ownership of the sewage it treats and releases has sparked a regional tug-of-war — one that could become more common as Texas' thirsty water users struggle to protect their supplies.       Talk of Tighter Flounder, Trout Rules Questioned by Neena Satija The suggestion of new restrictions on saltwater fishing has generated heated discussion along the coast — with some claiming that small-time fishermen will be pushed out to make way for richer anglers.   Edwards Aquifer Plan Receives High Honor at Turbulent Time by Neena Satija A plan meant to balance the needs of the Edwards Aquifer's 2 million water users with those of threatened species will receive a national award Thursday, but the state's severe drought could hinder the proposal's success.  Texas Water Development Board Member Resigns by Neena Satija Mary Ann Williamson, one of three members of the Texas Water Development Board appointed by Gov. Rick Perry last summer, has resigned. Her departure comes at a transitional time for the agency. California Grapples With Drought Emergency California's drought emergency appears as bleak as drought conditions in Texas, with record-low flows in rivers and streams, reservoirs drying up and a mountain snowpack far below normal. TCEQ Allows Water to Be Cut Off to Rice Farmers The Texas Commission on Environmental Quality has signed off on an order granting emergency drought-period powers to the Lower Colorado River Authority that will excuse the agency from releasing water to lower-basin rice farmers. New Braunfels Loses Battle Over Can Ban A judge has ruled that New Braunfels' anti-trash ordinances that barred tubers from floating down its rivers with large coolers or disposable bottles and cans are unconstitutional. New Panel to Study Desalination The Texas Legislature has created a panel to study water desalination as a solution to the state's prolonged drought. Film Tells Stories of Cities Searching for Solutions to Water Crisis A new interactive documentary film project produced by Penn State Public Media explores how cities around the country, including San Antonio, are finding innovative solutions to water-related problems. Event: Southwest Stream Restoration Conference Abstracts for presentations at the Southwest Stream Restoration Conference are due Jan. 31. The conference takes place May 28-30 in San Antonio. Data App: Track Texas Reservoir Levels by Ryan Murphy Using data from the Texas Water Development Board's reservoir status tracker, our auto-updating map visualizes the current state of Texas reservoirs.

Rio Grande Water Users Fear Groundwater Pumping Project

  by Neena Satija, The Texas Tribune
  January 29, 2014

photo by: Cal West / Todd Wiseman

A controversial groundwater pumping plan that opponents argue could threaten the lower Rio Grande's already depleted supply is highlighting a conundrum in Texas water law.  

Texas rivers and springs are considered the property of the state, while water flowing below ground belongs to individual landowners. But many of the state's surface water resources, from Barton Springs to the Guadalupe, Colorado and Brazos rivers, are fed in large part by groundwater. 

So is the iconic and fought-over Rio Grande, whose lower portion flows out of Lake Amistad on the Texas-Mexico border and is the sole supplier of water to much of South Texas. A third of Lake Amistad's water comes from Val Verde County, and in many years, depending on rainfall and other hydraulic conditions, most of that water comes from below ground. 

Because groundwater and surface water are treated differently under Texas law, South Texas officials and environmental advocates fear there is little they can do to stop a groundwater pumping proposal by Beeville-based Val Verde Water Company that they say could endanger Amistad and the lower Rio Grande.

“It’s all a connected system,” said Ronald Green, a scientist at the San Antonio-based Southwest Research Institute who studies groundwater resources across the state. “You just can’t isolate out a segment in this long conveyance of water that goes from the headwaters of these watersheds all the way down to the Gulf [of Mexico].”

John Littlejohn, who founded the water company, has plans to pump about 16 billion gallons per year from the Edwards-Trinity Aquifer underneath Val Verde County to sell to large cities looking for water. (San Antonio, for example, is considering the project. San Angelo and other cities have also expressed interest.) 

Some Val Verde County residents have already raised concerns about a pumping project in their backyard, and environmental advocates fear its potential impact on the Devils River, which feeds Lake Amistad and also depends on groundwater for its flow. But Green said it’s the lower Rio Grande that could see the biggest effect.

That’s because Littlejohn has proposed drilling wells near Lake Amistad, which is just under half full today. Pumping next to the lake could drain water from it, scientists say, or, at a minimum, partially deplete the aquifer that feeds it. 

Littlejohn doesn’t dispute the possibility that his wells could draw water from Lake Amistad. But he said that under Texas law, Val Verde County residents have the right to sell the water beneath their land, especially since the drought has made agricultural income hard to come by.

“There’s just an immensity of freshwater out there,” he said of the Edwards-Trinity Aquifer. “There’s a lot of leakage and loss that is occurring, and if [South Texas users] wisely go about being more prudent about their usage, then they will have tremendous savings that are available for usage at that point.”

Opponents argue that any water depleted from Lake Amistad is water that won't head downstream to the already over-allocated lower Rio Grande. “We respect everybody’s right to be able to grow and to try and obtain additional water, but not at somebody else’s expense,” said Carlos Villareal, the city manager of Laredo, which relies entirely on the lower Rio Grande for its water. 

They also fear Littlejohn may have his sights on even more water than the 16 billion gallons he has indicated. His plan includes a pipeline that could carry as much as three times that amount.

Laredo and Webb County officials, along with a number of irrigation districts in the lower Rio Grande, are forming a coalition to try to defeat Littlejohn's plan. But it’s not clear how much they can legally do to stop it. 

“The people in Val Verde County that have this water under their lands are the owners of this,” Littlejohn said.

Creating a groundwater conservation district to protect such resources usually takes an act of the Legislature, which won't convene again until 2015. And even if a district is set up, the most regulators could do is limit pumping — not prohibit it altogether.

State Rep. Eddie Lucio III, D-Harlingen, said a more viable option may be to produce more evidence that the pumping project would affect the state-owned Rio Grande. In that case, “there’s a strong argument to be made that it is still under state jurisdiction,” he said, and the Texas Commission on Environmental Quality could take action.

Another option would be to invoke the federal law that protects endangered species in the Devils River basin. The Sierra Club effectively used that strategy more than 30 years ago to force the San Antonio region to limit its pumping, resulting in the creation of the Edwards Aquifer Authority. Mexico, too, could get involved, since that country shares the Amistad reservoir with Texas.

Ultimately, Lucio said, Texas water law must begin to recognize the connection between groundwater and surface water. “There’s such a [legal] distinction between the two, and science tells us a different story as we move forward,” he said. “How are we going to reconcile that as a state?”

Texas officials have recognized the connection between the two resources in other instances. This week, the U.S. Supreme Court allowed Texas to proceed with a lawsuit alleging that New Mexico had siphoned off some of the state's water supply, though New Mexico still has the opportunity to ask that it be dismissed.  

New Mexico’s alleged crime? Too much groundwater pumping, which Texas says has reduced the flow of the Rio Grande.




This article originally appeared in The Texas Tribune at http://www.texastribune.org/2014/01/29/groundwater-pumping-project-could-hurt-rio-grande/.

Judge overturns New Braunfels river can ban

SAN ANTONIO — A district judge on Monday overturned the controversial New Braunfels disposable container ban.

District Court Judge Don Burgess ruled in favor of local river outfitters and a beer distributor that the city does not have the jurisdiction to regulate disposable containers on the river.
A summary judgment has been issued, but no details yet, Councilwoman Aja Edwards said in a text message.
“After considering the competing motions for summary judgment, the various responses and the case law, the plaintiffs motion for summary judgment is granted,” wrote the judge in an email, according to KGNB.
The ban on disposable food and beverage containers was passed by the City Council in 2012 and applied to rivers within the city, including the Comal and a small section of the Guadalupe.
The ban covered aluminum cans, plastic bottles, paper towels and utensils.
The lawsuit has been pending since that year, when outfitters sued the city, claiming they overstepped their legal authority.
Read more about this story on ExpressNews.com, our subscribers-only website.
kparker@express-news.net
Twitter: @KoltenParker

 

We made the ground shake in Austin!

Thank you for speaking out against frackquakes You took the time, officials took notice          Full house at the Railroad Commission meeting in Austin A bus load of Texans made the ground shake in Austin this week. And I'm still shaking! Your dedication to helping others and protecting our communities, homes and children is truly inspiring. More than 50 Texans from the Azle area took time off from work and school, woke up at 3am and sat on a bus for eight hours to tell our government officials we need immediate action to stop fracking related earthquakes. Because of their heroic efforts, and support through our online petition, we are bringing about real change that will help real people. The results so far: The Texas Railroad Commission is hiring a seismologist The Texas House Energy Resources Committee formed a subcommittee to investigate earthquakes We made the national news, raising the profile and urgency of the issue And we sent Austin into a scurry. But further action is needed. In my testimony at the Railroad Commission meeting I called for a moratorium on the injection wells that are causing the earthquakes until the science exists to stop the quakes. I also asked that the companies responsible for the quakes be responsible for the damage. Right now we, the homeowners, have to pay for the damage fracking companies cause. That's not right. Finally, I asked for information. We need live, realtime data about the quakes in our communities. And, after a whole bunch of phone calls, we got it! You can now get realtime earthquake data here. Scroll down to find information for Azle, Reno, Boyd and Briar. Thank you you for your hard work, commitment and compassion. Sincere Sharon Wilson, Texas Organizer

Great News: House Votes to Provide $1.3 Billion for Working Farms, Forests and Ranches

January 29, 2014 Forward to a Friend | Home | Join Us

In a striking show of bi-partisanship, earlier today, the House of Representatives overwhelmingly voted to support the 2014 Farm Bill. The final vote was 251 - 166. The legislation will generate more than one billion dollars for saving endangered farm and ranch lands. The bill is expected to be approved by the Senate and signed by the President shortly. Learn more about the conservation programs in the Farm Bill » The Farm Bill has been a top priority for the Land Trust Alliance, which has worked diligently with both the House and Senate Agriculture committees to ensure funding for easements was retained and strengthened. The Alliance led a coordinated effort by land trusts leaders to make this happen. "This new Farm Bill will allow our community to build upon our past successes with new dollars and increased flexibility due to the cash match waiver provision,” said Rob Manigold, who as Supervisor of Old Mission Peninsula Township in Michigan for 25 years led its successful farmland preservation efforts that included permanently protecting 5,000 acres of farmland. “Agriculture is such an important economic driver for our region and state - why wouldn't we invest in protecting a land base like ours that is so unique?" Please take the time to thank your members of Congress who voted for this important piece of legislation. Warmly, Rand WentworthPresident, Land Trust Alliance Learn More about the Farm Bill » Land Trust Alliance •Main Office | 1660 L St. NW, Suite 1100 | Washington, DC 20036 | 202-638-4725 | www.landtrustalliance.org

Below the Surface - Texas Monthly - February 2014

The Legislature was looking in the wrong place when it tried to solve the state’s water crisis.

by Nate Blakeslee    February 2014

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.

Texas Water

Texas needs innovative water solutions

Susan Combs, For the Express-News : January 24, 2014 

In Texas, the holiday season brought the welcome return of cooler weather, and — in some areas — even more welcome rain. It's easy, on a cool, misty winter day, to forget that we're still locked in an extended drought, the same one that brought the disastrous crop failures and wildfires of 2011.

Unfortunately, we're likely to be reminded of that fact in 2014. The National Oceanic and Atmospheric Administration expects that spring will see persistent or intensified drought in much of Texas, including the Panhandle and central and southern regions.

Sooner or later, every drought ends. But our growing population and our economic success guarantee that our water problems won't end — unless we take steps to ensure our supplies, and soon. The passage of Proposition 6 in November was an important step in funding our future water needs. But we can do more.

Look at the revolution in Texas energy production due to unconventional drilling techniques — new approaches that have changed the oil patch almost beyond recognition. Where's our revolution in water technology?

A new study from my office, “Texas Water Report: Going Deeper for the Solution,” examines some of the wide-ranging implications of water shortages, including the intricacies of “water politics” between states and nations, and proposes solutions that can help us ensure that clean water keeps flowing to our farmers and ranchers, our power plants, cities and industries.

Many of America's fastest-growing metro areas are located in water-threatened regions. And Texas in particular has much to lose.

According to the reports they provide to the Texas Commission on Environmental Quality, as of Jan. 8, 29 Texas municipal water systems were in danger of running out of water within three months. Two small communities, Spicewood Beach and Barnhart, have run dry entirely.

If something similar happened to one of our metro areas, the economic damage could be catastrophic, and a University of Florida study ranked San Antonio as the nation's most water-vulnerable city.

Of course, many are grappling with our water problems right now, pioneering new techniques and technologies that can stretch existing water and open up new supplies. The Texas Water Report profiles a number of promising new approaches, including strategies such as water reuse and aquifer storage and recovery. We also examine the rapidly evolving field of desalination, which could allow us to use the ocean of brackish water contained in Texas aquifers.

Nonetheless, much of Texas' planned spending on water is still devoted to traditional approaches —additional reservoirs, stream diversions, water pipelines and conventional conservation methods. They're all worthwhile, but we're going to need new solutions as well.

We're more than overdue for breakthroughs, and some of our state funding should be used to cultivate them. There's a clear need for greater support in this vital field — according to the Higher Education Coordinating Board, in fiscal 2012 our four-year universities spent $519 million on research and development, while our health-related institutions spent another $2.4 billion. Of all that, only $28.7 million went to water-related issues.

In our report, we recommend investments to help us maintain and extend our water supplies, such as a grant program for water authorities and major water users that can achieve significant, verifiable reductions in total usage through conservation.

But we also recommend state funding for innovative demonstration projects in water technology. And we're proposing a prize model to award some of the state's research dollars for specific achievements in innovative water technology.

Choosing the right approach to Texas' water problems may be the most important policy decision we make for the next 50 years. Water can limit our growth — or ensure it continues. It's up to us.

To view Texas Water Report: Going Deeper for the Solution, as well as accompanying web tools and interactive features, visit www.TxWaterReport.org.