Going by the Rules

A New Water Plan Avoids an Old Problem


illustration by Doug Potter
Lt. Gov. Bob Bullock was talking tough on water. "Forty years ago, the predecessor to the Texas Water Development Board was given authority to come up with a water plan," Bullock pointed out at a press conference last Wednesday. Since then, he noted, no action has ever been taken by the legislature on any water plan produced.

"What that tells me," Bullock went on dryly, "is that we're 40 years behind the times." Bullock was there to announce the filing of a new water bill authored by Senator J.E. "Buster" Brown (D-Houston) that would enable regional water resource planning and statewide drought emergency measures. Bullock's is not the only throat still parched from last year's severe drought -- the scorching weather cost Texas businesses over $2 billion in revenues, endangered drinking water supplies in many parts of the state, and seemed to bring out the worst in almost everyone. San Antonio, for example, bullied its way through the dry spell, refusing to go to emergency drought management stages which would have prohibited lawn sprinklers and other insupportable uses, while downstream from the Alamo City the Lower Guadalupe River area burned. The experts say that, given the low amount of rainfall this winter, there's every reason to believe the drought will be even worse in 1997. Calling it "the most important issue the legislature will face this session," Bullock made the symbolic gesture of naming the bill Senate Bill 1 (SB1), and put his full force behind its passage. The bill, if it passes, would not go into effect until September 1, too late to help anyone this summer, but in the long term, it could help overall conservation efforts.

Sen. Brown, the chair of the Natural Resources Committee, may be carrying SB1, but it was Bullock who set the wheels in motion three and a half years ago with the Texas Water Development Board (TWDB), the Texas Natural Resources Conservation Commission (TNRCC), and the Parks & Wildlife Department (TPWD). "I asked the staff to be bold, use their imagination and be controversial -- yes, controversial -- when they bring their recommendations [on a water plan] to us," Bullock told the press.

In a state as water-challenged as Texas, what he got was long overdue, but hardly controversial -- a water conservation plan is something most Western states already have. And neither the recommendations from the three agencies, nor the water bill ultimately written from those recommendations, changes the one thing that would make this water plan not only controversial, but truly effective: Unlimited groundwater pumping under the "rule of capture." Based on a court decision from 1904, the rule of capture is an antiquated doctrine which says that groundwater is the exclusive property of the landowner above it, and can be pumped out unrestricted. The rule of capture is an accepted practice in Texas, even though it is not statutory law, and it maintains a certain iconography as a property-rights tenet.

"I have to say I still support [the right of capture] too," Bullock said, "because a lot of our laws come from the right of capture. That's where laws dealing with hunting came from, for example. That's where our laws came from in oil and gas. You just can't change case law that's been in effect over 100 years just overnight. Courts rely on prior interpretations of the law. It gives you stability. So I see no compelling reason to change this at this time."

Acknowledging that his bill does not address what many environmental experts see as the most important impediment to protecting the state's most precious natural resources, Brown reasoned that it is an "intractable" issue, and said it "wouldn't be changed without extreme measures." So much for controversy. In fact, SB1, Brown explained, uses more of "a carrot and stick approach" to conservation, with financial incentives to encourage existing water districts and municipal utilities to follow the state's conservation plan.

Some of the key measures in the bill include: * Granting the TWDB and TNRCC the authority to exact stiffer fines for groundwater misuse ($10,000 per day, up from $1,000);

* funding a statewide regional plan by the TWDB, TNRCC, and TPWD using the most modern data collection systems;

* identifying the state's "priority groundwater management areas," and requiring water districts in those priority areas to file drought management plans with the TNRCC for approval if they want to be eligible for future interbasin transfers or state loans for water conservation projects;

* requiring more efficient use of bond funds for future water development and district loans;

* opening discussion of alternative water sources and water reuse, such as desalination for the Rio Grande Valley region and use of effluent for agricultural irrigation.

And while Bullock and Brown failed to grab the issue of unrestricted pumping by the horns, to be fair, the bill probably wouldn't have a chance if they had. For example, the day before the bill was filed, fellow Natural Resources Committee member Teel Bivins (R-Amarillo) queried TWDB director Craig Pedersen primarily on property rights and the importance of local control. Many concessions to those concerns were included in the plan, as was obvious from Pedersen's comments. Pedersen assured Bivins that he views the plan "as a recommendation. We would see the agency's involvement as a last refuge. We would come in, if a district cannot plan properly, to clarify costs and opportunities." A chuckle spread around the room.

Despite figures in his own agency's documents showing that groundwater supplies will be insufficient to support 15% of the state's municipal residents by the year 2010, Pedersen, in fact, came close to defending the use of rule of capture the next day at the press conference. Asked by the Chronicle if he deliberately avoided addressing the doctrine in what is otherwise a progressive plan, Pedersen replied that the question "assumes that the rule of capture doesn't work. There are far worse doctrines in use around the country." Asked to name one, Pedersen's reply seemed at once obtuse and a clear nod to conservative interests: "A system so bureaucratic that nothing gets done." In other words, given the current political environment, the bill is about as comprehensive as Bullock and Brown could have managed.

Still, Ken Kramer, director of the Sierra Club's state office, said Friday that he's "disappointed" the bill doesn't address unlimited pumping head-on. "The rule of capture needs to go, but it's one of the most politically charged issues in this state. People think you're protecting property rights, but really it's not protecting anyone but the landowner with the biggest pump." Implicit in the bill, however, as Kramer and Sen. Brown contend, are changes to the rule of capture. "The requirement that water districts submit management plans to the TNRCC could mean the state agency will set minimum standards that would help them manage groundwater in those areas that have a problem," said Kramer. "It's a backdoor way of modifying the rule of capture."

Kramer's group has a vested interest in the outcome of this bill on other fronts: The Sierra Club sued the city of San Antonio and various other users of the Southern section of the Edwards Aquifer last year to force pumping limits on a groundwater resource that is rapidly depleting. The suit, filed in federal court under the Endangered Species Act to protect rare species dependent on the aquifer-fed springs, resulted in forced limits which were later stayed by an appeals court until a final ruling is made. In the meantime, to avoid more court-ordered limitations, the Edwards Aquifer Authority, which has statutory powers to regulate the aquifer, finally initiated a water conservation plan that is currently in the works.

SB1, if passed, may help stave off federal intervention in Texas water issues by providing the structure for conservation, and -- if Texas cities and rural areas cooperate -- may help preserve the life-giving resource so many lives depend upon. That's a lot of "ifs," but as Sen. Brown pointed out in reference to SB1, "legislation is the art of possibility."


View From the Gallery

At last week's Natural Resources Committee meeting, crowded with media and photographers, some old resentments arose to everyone's amusement. A little history: Sen. Gonzalo Barrientos (D-Austin) and Sen. Jeff Wentworth (R-San Angelo), both members of the committee, went head to head last session on the Senate floor over a bill Wentworth filed to protect Circle C Ranch from Austin's water quality regulations. Legislative protocol normally discourages one Senator from filing bills affecting another Senator's district, but Wentworth ignored it. Barrientos filibustered, but failed to kill the bill. As committee chair Sen. J.E. "Buster" Brown (D-Houston) started off last week's meeting with an explanation of committee rules, Barrientos raised his hand to interrupt and ham for the cameras.

Barrientos: What if I want to filibuster in committee?

Brown: If you want to filibuster in committee, we have special places for that.

Barrientos: Do they serve beverages?

Wentworth: Whenever the AP [Associated Press] goes around and takes our pictures, do the members go loose and wild for the cameras?

Brown: I'll try to explain it like this: When you train a show animal, they act differently in front of a crowd. The media has that effect on us.

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