Below the Surface
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.