KIAH COLLIER: Conserving water pumps up issues

By Kiah Collier
Saturday, September 4, 2010


SAN ANGELO, Texas — When Gov. Rick Perry was in San Angelo last month, I asked him what he would do if re-elected to ensure that municipalities in the more underrepresented areas of the state have equal access to long-term water supply.
His answer? The Texas Water Plan.

“I think it’s important that this next legislative session that we finally implement the Texas Water Plan,” he said. “We have a water plan, it’s just not implemented and it hasn’t been implemented because of the cost associated with it.”
The Texas Water Plan is a document — or series of documents — that has been produced every five years since the 1960s by the Texas Water Development Board. Marking the beginning of drought-driven water planning in the state, the board was created in the 1950s “in part in response to the droughts of the 1950s,” according to Chapter 3 of the 2007 State Water Plan, the most recent edition.

“The severe effects of the drought rallied citizens and lawmakers to take action to protect Texas communities from future drought and to ensure that the state’s water supplies were both dependable and adequate enough to sustain and promote future economic development,” it goes on to say.

If you haven’t taken a look at the plan, it’s not as boring as you might guess. It takes a 50-years-into-the-future look at the state’s population growth, its water needs, water management strategies, implementation methods and costs. The 2007 plan says it would cost $30.7 billion to implement between 2007 and 2060. That’s about $580 million a year for 53 years.

The plan makes no secret of the fact that it is merely a plan — and that the water issue is especially tricky because it involves a lot of guesswork. How many people will there be in Texas in 50 years? Given increased conservation efforts, possibility of drought, etc., how much water will that population need in 50 years? Other than the unsettling complexities of guessing, some of you may be thinking as I did: 50 years is not a very long time. Also, the plan is just a plan. A lot more heavy lifting will be required to resolve the management of the state’s long-term water supply.
The water supply debate occurs within the context of a really interesting dilemma. On the one hand, we all know that water is a scarce resource and that the demand on it is growing along with the state’s population. (Almost) no one denies there is a need to manage and conserve it, but how to go about doing that — both the method and the extent — is being debated. The solutions are not easy coming.

At an educational forum on groundwater in San Angelo last week, representatives from the Texas and Southwestern Cattle Raisers Association, the Texas Farm Bureau and the Texas Parks and Wildlife Association, as well as an Austin-based groundwater rights attorney, warned the more than 100 farmers and ranchers in attendance that their groundwater rights are under attack in the courts, by the state attorney general and certain local groundwater conservation districts. (Why groundwater specifically? It’s mostly because “few viable sites remain for new reservoirs” or surface sources, according to the water plan. Also, most crop irrigation is done with groundwater).
The primary examples they gave of this attack involved “historic use.” This is a concept some local groundwater conservation districts have used to deny pumping permits to landowners — people who may or may not have owned the land for a long time, but have never pumped water before. It gives priority access to “historic users,” or people who were already pumping the water.

While these property rights organizations say they agree with “reasonable regulation” of groundwater, they say regulation or management attempts like this encroach on state law, which says that all landowners have equal access to groundwater and that historic users can be given priority only under certain circumstances.

“There’s nothing inconsistent with ownership and regulation,” said Russ Johnson, the Austin-based water rights attorney who spoke at the forum.

The problem is determining equal access to the water when you are also trying to regulate it. Not only does “historic use” go against law, they say, but it is antithetical to conservation because it encourages people to use water to stake their claim on it rather than conserve it. The conservation districts don’t deny these things.
The Texas Alliance of Groundwater Districts’ “Position Paper for the 82nd Legislature” says so.
“Who should get the highest preference when dividing up available supplies — those with existing demand or those landowners who do not currently have an existing well but now want to pump groundwater from beneath their land in the future? These are some of the hard questions that are not amendable to easy answers, especially on a statewide basis,” the document reads.

However, in 2001, the Legislature gave local conservation districts the unprecedented power to manage, regulate and restrict water use. It said they must treat everybody the same, but that they may protect historic users if necessary. (The number of local water districts has doubled since this legislation was passed).

In essence, the bill said “We are going to give these districts extraordinary new power to limit production but we recognize there may be some situations where they can’t uniformly apply their new regulatory rules,” Johnson said, adding that he thinks the Legislature’s line of thought was correct because every situation is different, even though they likely recognized that it would open the door for some huge controversies, as it has done.

The other part of the problem came with House Bill 1763, which requires districts to determine “desired future conditions” — i.e., how much water they want to have left 50 years or however long down the road — and to manage their groundwater supply accordingly. That means they have had to put limits on pumping, and that’s where “historic use” has come into play.

My first question when I heard about this so-called “attack” was, why would these districts — and the state attorney general — want to go against the law or deny landowners of their lawful right to groundwater?
“I think the short answer is that they are concerned that the recognition of the property rights interest of landowners will limit their ability to restrict groundwater use,” Johnson said.

“I think it’s largely a fear that it will prevent them from doing what they think needs to be done to protect the resource... I would add that some groundwater districts are largely dominated by existing users, and many existing users I believe are concerned that a recognition of property rights by all landowners might somehow diminish or preclude their continued historic use.”

Johnson said that while he believes there should be management of water, there should “not necessarily be a hard and fast limit on how much water should be produced.”

“The question is really, ‘How rapidly should you allow it to be used up?’ ” he said.

Greg Ellis, a water rights attorney and executive director of the Texas Alliance of Groundwater Conservation Districts and former general manager of the Edwards Aquifer Authority, did not return a phone call requesting comment.
Kiah Collier covers city hall, state government and politics.
Contact her at kcollier@gosanangelo.com or 659-8237.
http://www.gosanangelo.com/news/2010/sep/04/conserving-water-pumps-up-issues/