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 Taken together, the companies propose to pump annually more than three times the current amount withdrawn by all the existing permitted wells in the district put together.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.