Water Laws, Water Rights and Water Rustlin'

There are water wars cropping up all over Texas. The good ole’ boys lined up behind Rick Perry have allowed for a virtual “gold rush” on groundwater that threatens the economic well-being of urban and rural citizens, agriculture and wildlife. We cannot let this happen. We must get educated and educate our neighbors.

The following four articles about water rights were written for the Bastrop Advertiser Newspaper by Phil Cook. Cook is a local businessman and chairs the Sierra Club’s Lost Pines Conservation Committee. He has been involved in local environmental issues for many years and has lived in the Cedar Creek area since 1977.

Groundwater – Article 1

I approached the Advertiser about writing a series of articles about local groundwater issues and the editor agreed to a series of five articles, of which this is the first. I have been concerned with local environmental issues for many years, and have become alarmed about the impending depletion of our areas underground aquifers, which are at the limits of what they can supply without being depleted.

Even so, many major entities have plans to pump additional quantities of water, much for use beyond the Lost Pines area, far beyond the aquifers’ abilities to replenish themselves. We face no easy resolution: those who would pump our aquifers and export the water to other areas possess considerable economic and political influence, and Texas water law often favors them.

Decisions made in the next few months and years will decide the future of our local aquifers. They supply the water which most of us drink, most of the water used for irrigation, and play an important role in the water flow of the Colorado River and the streams that flow into it. How close groundwater is to the sand’s surface determines what trees and other flora will grow, and the native animals that will inhabit the area. As local aquifers are depleted, groundwater levels will generally sink, and our region will gradually become more arid. I intend these five articles to inform you, as best I can, about our local groundwater, the demands that are being placed on it, the processes the state has put in place to govern its use, and what we can do to insure that it is used in a responsible, sustainable way.

About Our Area Aquifers
Our local aquifers were formed by a succession of seas that covered most of Texas millions of years ago. These seas deposited layers of sand on their sea beds; when the seas receded, the sands became surface, and were, over millions of years, covered with other layers of sand, rock, and minerals by a variety of geologic processes. Sand does not fit tightly together, and the gaps between the grains of sand filled with rainwater.

These formations are aquifers. The shape of our region’s aquifers roughly parallels the present-day Gulf Coast, forming a long crescent stretching from Arkansas and Louisiana, through Northeast Texas, through our Lost Pines area, down to the Rio Grande Valley, and into Mexico. This crescent is not uniform; it is composed of several distinct layers of sand interspersed with shale and lignite formations, interrupted by hard rock and clay deposits, fractured by geologic faults, and eroded by rivers and streams. Pressure from deep underground causes the earth’s surface to rise and fall, further distorting the aquifers.

Thus, some locations have abundant groundwater while others have little or none. Minerals concentrated locally in these underground features affect the taste and quality of the water.

A connected system of sands called the Carrizo-Wilcox aquifer is the main aquifer in our area. Most municipal, domestic, and irrigation wells use this aquifer, as do AQUA’s and Alcoa’s. The Carrizo is generally the shallowest of the aquifers; the Wilcox, composed of the Calvert Bluff, Simsboro, and Hooper aquifers, lies below the Carrizo. Other aquifers lie above and below the Carrizo-Wilcox; the ones above are used for agriculture and domestic purposes; these aquifers generally do not yield large quantities of water, and are of little use to high-volume pumpers. The water below the Carrizo-Wilcox is usually saline and/or highly mineralized.

Major rivers, such as the Colorado, often erode deeply into the aquifers’ formations; the eroded areas are, in turn, filled with silt, sand, gravel, and rock from upstream, creating a separate formation known as an alluvium, which holds water associated with the river. Rain is the main source of the aquifer’s water.

The Carrizo-Wilcox sands slope downward toward the Gulf. They intersect the land’s surface along a strip that forms the western/northwestern portion of the aquifer. Where an aquifer surfaces is called the outcrop. This is where rainwater enters the aquifer, and very slowly migrates through the aquifer toward the Gulf. At the outcrop the aquifer is at its shallowest, generally 200 or less feet thick.

In the Lost Pines area, the western half of Bastrop County and a small portion of Lee county lie within the Carrizo-Wilcox’s outcrop. The remainder of the aquifer, which includes the eastern half of Bastrop County and most of Lee County is known as the downdip; it can reach a depth of 3,000 feet in its far reaches. On average, about 7,500 acre feet of water enter the aquifer each year in Lee County and about 28,000 enter it in Bastrop County. Think of a football field covered with a foot of water and you have a pretty good idea of an acre foot. Presently, about 47,000 acre feet are being pumped each year in these two counties, so even now more water is being drawn than can be replaced. It is in danger of depleted at a much greater rate in the next several years.

Portions of the Carrizo-Wilcox are already depleted; irrigators in the Winter Garden area southwest of San Antonio, which once was a major fruit and vegetable growing area, have pumped the aquifer to near uselessness, with water levels falling as much as 250 feet. Areas near Tyler and Lufkin have seen declines of 400 feet and more since the 1940’s. Alcoa’s mining operations in Milam and Burleson Counties, just to the north of us, have caused declines in the Wilcox aquifer. Alcoa pumps water from the perimeter if its mines to keep them from flooding. What will happen now that Alcoa has announced the closing of its smelting operations is unclear.

Texas Water Law – Article 2

As noted in the first article in this series, the most important aquifer in the Lost Pines area, the Carrizo-Wilcox, is threatened with depletion from over pumping. This second article will discuss the legal framework that governs groundwater use. I want you to understand how tenuous and precarious are the protections that the law affords groundwater in Texas.

All western and southwestern states, except Texas, govern groundwater use through a centralized system that issues permits, establishes priorities, and regulates pumping. They recognize the hard limits of water availability and tend to treat water as a limited natural resource, not as a commodity to be bought and sold. Most establish correlative rights the recognition that groundwater pumped from under a certain property affects the remaining groundwater under surrounding properties, and that the owners of the surrounding properties (and often the state) have a legal interest in the water being pumped. Most of these states also employ a system of prior appropriation, which gives landowners who earlier began pumping groundwater for useful purposes a more established claim than pumpers who came later.

Texas is different: its way of allocating groundwater is diffused and decentralized, and Texas regulations tend to regard water as a commodity, not as a natural resource. Although it has a state agency charged with water planning the Texas Water Development Board (TWDB)–this agency lacks the power and authority to regulate groundwater that other western and southwestern states give their water agencies. To see how this came to pass, and how TWDB functions, one must understand how Texas water law developed and evolved.

The Rule of Capture
Texas water law is founded on English Common Law, which was customarily used as a reference in legal cases not addressed by statutory law. Prior to 1904, Texas had little reason to address the question of water rights because few lawsuits had been brought regarding it. In 1904, a major dispute reached the Texas Supreme Court, which cited a mid-Nineteenth Century English Common Law case that had the following to say regarding groundwater rights:

“The person who owns the surface may dig therein, and apply all that is found to his own purposes at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from the underground springs in his neighbor's well, this inconvenience to his neighbor cannot become the ground of an action.”

The case was Houston & Central Texas Railroad Co. v. East. East was a landowner with a small well. Houston & Texas dug a larger well near East's to provide water for its locomotives; East's well went dry. East sued, arguing that Houston & Texas' well caused his to go dry, and claimed correlative rights. The Court found for Houston & Texas, citing an 1861 Ohio court decision:

"the existence, origin, movement, and course of such waters, and the causes which govern and direct their movements, are so secret, occult, and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would, therefore, be practically impossible."

"recognition of correlative rights would interfere with drainage and agriculture, mining, the construction of highways and railroads, with sanitary regulations, buildings, and the general progress of improvement in works of embellishment and utility.

With this decision, the Court created the basis for the Rule of Capture, the foundation of Texas water law.

An important point: the East decision did not give landowners ownership of groundwater: it ruled that they had the right to capture it, and to use it once captured. Who has legal ownership of groundwater in Texas has not been decided. Although the Rule of Capture is fundamental, it is not absolute; a subsequent amendment to the Texas Constitution, court cases, and legislation have mitigated, but not overturned the Rule.

The Conservation Amendment
An important counterpoint to the Rule of Capture, the Conservation Amendment of the Texas Constitution, passed in 1917, gives the State responsibility to preserve and conserve the State's natural resources, including groundwater, for the benefit of all Texans. It provides the legal footing for the State's conservation laws and regulatory agencies. Since the Conservation Amendment gives the Legislature, not the courts, primary authority for protecting and regulating groundwater, the Supreme Court has been reluctant to alter the Rule of Capture– such alterations would trespass on the Legislature–and tends to decide water cases narrowly.

The Court has, however, been swayed by several cases brought before it. In 1955, Will Wilson, an influential justice, wrote a dissenting opinion in a case brought before the Court:

"I have this to say about reaffirming the rationale of the East case (and others). These cases were decided (1843-1904) before the development of most of our present knowledge of geology and hydrology and there has been a great advance in knowledge since these decisions. Although this court can close its eyes to the advancement of scientific and legal knowledge and governmental techniques by reaffirming this rationale as the majority do here, I do not believe that this court will always do."

The Court gave further indications in a 1999 case:

"We continue to believe that the genius of the common law rests in its ability to change, to recognize when a timeworn rule no longer serves the needs of society, and to modify the rule accordingly. Given the Legislature's recent efforts to regulate groundwater, we are not persuaded that it is appropriate today for this Court to insert itself into the regulatory mix by substituting the rule of reasonable use for the current rule of capture."

When we think of how to preserve local aquifers, we must be mindful of our legal and regulatory environment. The courts are disinclined to interfere, leaving groundwater issues to the Legislature, which sees in groundwater regulation a political minefield of powerful, established, competing interests. The Rule of Capture is unequal to the task; the Legislature's recent attempts to consistently, effectively regulate groundwater are unproven and not yet fully implemented. Time is short. Soon, we must either limit groundwater use to sustainable levels, or we will witness the depletion of our aquifers.
The next article in this series will discuss the present regulatory system that the Legislature has implemented.

Water Regulation: Recent Legislative Actions – Article 3

As discussed in the previous article in this series, Texas derives its water law from two contradictory precedents. The first is the Rule of Capture, as defined by a 1904 Texas Supreme Court decision, which essentially gives ownership of groundwater to whomever can bring it to the surface. The second is the 1917 Conservation Amendment of the Texas Constitution, which gives the state authority to preserve and conserve the state's natural resources, including groundwater, for the benefit of all Texans. These precedents contradict each other, and the Texas Legislature and Texas Supreme Court have not fully resolved the contradictions.

This is the current legal context for water regulation in Texas: during the preceding twenty-five years or so, the Legislature and its agencies concerned with water issues, mainly the Texas Water Development Board (TWDB) and the Texas Commission on Environmental Quality (TCEQ)–and its predecessor agency, the Texas Water Commission– have confronted the daunting task of finding common ground among the state's many powerful, competing water users and environmental and conservation interests, while staying within the confines of the Rule of Capture and the Conservation Amendment. Texas courts have consistently deferred to the Legislature on water issues.

Certainly, progress has been made; however, the process enacted by the Legislature and implemented by its agencies is not yet fully developed and the hard decisions about who gets, how much, for what purposes, and who gets left out have only been tentatively addressed. Present practices are often unsustainable, and future water demand is projected to put much heavier demands on dwindling water resources.

The Legislature's recent attempts to regulate groundwater usage build on a 1949 law allowing the Legislature to designate “underground water reservoirs” that is, aquifers–and the creation of locally controlled underground water conservation districts within the bounds of the underground water reservoirs. This came about because irrigators in the Panhandle, pumping the Ogallala Aquifer, were rapidly depleting the aquifer, alarming some irrigators, as well as area cities who depended on the aquifer.

The new law enabled water district proponents to define an area within a designated underground water reservoir, hold an election to create a water district, and if passed by voters, to petition the Legislature to create the district. Once created, these districts had considerable regulatory control over water use within their boundaries. Several of these districts were established, all in West Texas. Areas outside of these districts still abide by the Rule of Capture.

More recently, the Legislature built on the 1949 law. In 1985, the Legislature gave the Texas Water Commission” TCEQ’s predecessor–and TWDB the authority to recommend the formation of groundwater conservation districts (GCDs); these districts became the state's first major tool to systematically regulate groundwater" the Lost Pines Groundwater Conservation District, with jurisdiction over Bastrop and Lee Counties, was established under this rubric in 1999. In 1997, the Legislature passed Senate Bill 1, which created the regional water planning process; in 2001, Senate Bill 2 authorized the creation of Groundwater Management Areas (GMAs) to include all Texas’ aquifers. The Lost Pines GCD (and all GCDs) plays an integral part in this planning process. In 2005, House Bill 1763 required GCDs to define the “desired future conditions” for aquifers within their Groundwater Management Areas. We expect further tweaking from the 2009 Legislature.

Some background information is required to understand why the Lost Pines GCD was needed. During the 1990′s with Texas’ population increasing rapidly, many large cities needed to secure additional supplies of water. San Antonio was among the most vulnerable to future water shortages. In the late 1990′s the city, through its water utility, entered into a series of contracts with Alcoa, the aluminum smelter in Milam County.

Under one of the contracts, Alcoa would sell San Antonio 40,000–60,000 acre feet of water yearly from the Carrizo-Wilcox from wells located near Alcoa’s Sandow mine in Milam County. A second agreement assigned San Antonio up to 30,000 acre feet from wells associated with the new Three Oaks Mine in Lee and Bastrop Counties. Pumping of this magnitude would cause water levels in the aquifer to fall precipitously over a 1,400 square mile area from the Colorado River to the Brazos.

Legislation establishing the Lost Pines GCD was already in progress, and the Alcoa-San Antonio deal made its creation imperative, and solidified local support for it. John Burke, general manager of Aqua, a non-profit water supplier in the area, working with Sen. Ken Armbrister and Rep. Robby Cook, led the effort to pass the enabling legislation creating Lost Pines. Its creation was supported by the Lee and Bastrop County Commissioners Courts, the cities of Bastrop, Elgin, and Smithville, and by Bastrop County Environmental Network and Neighbors for Neighbors, and others. In November, 2002, residents confirmed the creation of Lost Pines GCD with a landslide 70+ percent of the vote in both counties.

Like all GCDs, the Lost Pines GCD is governed by a board of directors consisting of ten members, five each appointed by the Lee County and Bastrop County Commissioners Courts. The Board’s first meeting was held in January, 2,000. Lost Pines is supported by pumping fees imposed on large wells within the district. It has offices in Smithville; Joe Cooper is the general manager. Board meetings are held monthly, and alternate between Bastrop and Giddings; they are open to the public.

Several factors limit the effectiveness of such districts as conservation and regulatory entities: they cover relatively small areas; they tend to organize along political, not aquifer boundaries; some are used to enable local pumpers to draw more water from the aquifer than can be recharged, and to insulate them from the more stringent requirements of neighboring districts; many have very limited resources for study, planning, and administration; adjacent areas may not be organized into districts, allowing for unregulated pumping under the Rule of Capture.

Nevertheless, GCDs have powers and authority, the most basic being the ability to regulate the spacing of new wells to prevent interference with existing wells. They also have the ability to deny permits for new large wells to prevent over pumping and aquifer depletion. Much depends on the intentions of a GCD’s board: the Lost Pines board consistently supports efforts to conserve and preserve the Carrizo-Wilcox. Groundwater conservation districts like Lost Pines are only one component of Texas' complicated system for regulating and allocating water resources. The next article in this series will discuss this system and Lost Pines GCDs participation in it.

The Lost Pines – Article Four

The previous article in this series reviewed the legal and regulatory history that led to the creation of the Lost Pines Groundwater Conservation District (GCD), which regulates the pumping of groundwater in Bastrop and Lee Counties, and serves as a planning agency for future groundwater use and conservation. This article will discuss the Lost Pines district more particularly.

I think keeping a few facts in mind will help you understand Lost Pines’ role and stance as a groundwater regulator. The Carrizo-Wilcox aquifer is our main concern; it is the aquifer most used in Bastrop and Lee Counties. In our area, water enters the aquifer through its outcrop in the western parts of Bastrop and Lee Counties. In Lee County during an average year, 7,500 acre feet of water enter the aquifer; in Bastrop County, 28,000 acre feet enter.

This 35,500 acre feet of recharge is insufficient to replace the estimated 46,000 acre feet pumped from the aquifer each year; so even now, the Carrizo-Wilcox in our area is being slowly depleted. Presently, about 90,000 people live in Bastrop and Lee Counties, and demographers predict a 50% – 90% population increase over the next 20 or so years. Demand for water will increase accordingly.

Clearly, the Carrizo-Wilcox cannot supply water for this population increase without becoming seriously depleted. Additionally, several other municipalities and water marketers have plans to pump vast amounts of water from the aquifer. If these plans are realized, water levels in the Carrizo-Wilcox will fall precipitously. This is the situation that the Lost Pines GCD must negotiate.

The Texas Water Development Board (TWDB), the state agency charged with water planning, has coined a term central to future water use planning: Desired Future Conditions (DFC), which it defines as, “The desired, quantified condition of groundwater resources (such as water levels, water quality, spring flows, or volumes) at a specified time or times in the future or in perpetuity as defined by participating groundwater conservation districts"

Texas has decided on a fifty year water planning cycle; thus the “specified time” is 2060, more or less. Condensed, the TWDB is asking Lost Pines GCD, “What do you want your aquifers to look like fifty years from now?” This question is neither rhetorical: Lost Pines’ answer to this question will determine how much groundwater it can permit for pumping, nor simple: Lost Pines is not free to chart its own course; it is a small player in a large, complex game.

The TWDB has assigned Lost Pines (and all GCDs) membership in a larger, regional planning entity, a Groundwater Management Area (GMA). Lost Pines is in GMA 12, which includes four additional GCDs, all within the bounds of the Carrizo-Wilcox aquifer). These districts include all or parts of several counties, including Bastrop and Lee, mostly to the northeast of the Lost Pines district. Representatives from each of the Groundwater Conservation Districts within such a management area are required to meet as a committee to devise a joint management plan for all of the groundwater within the GMA.

These districts often have contradictory, incompatible visions of their Desired Future Conditions, which must be negotiated and compromised into a plan acceptable to a two-thirds majority of the GCDs, and presented to the Texas Water Development Board as the Desired Future Conditions for the entire GMA. This process invites dysfunction; for example, Post Oak Savannah GCD in Burleson County, adjacent to Lost Pines GCD, proposes Desired Future Conditions resulting in aquifer water levels falling more than 250 feet by the year 2060, within the Post Oak district. Several landowners within the district intend to drill large wells, convey the water pumped from these wells to water marketers who, in turn, plan to sell the water to utilities and municipalities outside of the Lost Pines area.

The issue is that Post Oak cannot pump this volume of water without significantly affecting aquifer levels in surrounding districts. If the Post Oak district gets its way, average water levels in the Lost Pines district would fall by almost 200 feet.
Note: aquifers are not like bathtubs; they neither drain at a uniform rate, nor by the same amount in different areas.

The present discussion refers to the Simsboro sands within the Carrizo-Wilcox aquifer. Other, shallower aquifers lie atop the Carrizo-Wilcox, and will be subject to less drawdown. Nevertheless, the Simsboro sands are the most important, and generally contain the best quality water. One may safely assume that as aquifer levels fall, so too will water levels in most of the 6,000+ existing wells within the Lost Pines district; many will become useless.

Put bluntly, the Post Oak GCD plans to pump most of the area’s best water, sell it, and leave very little for surrounding districts, including Lost Pines. Post Oak is no anomaly; similar plans are being formulated to our north, and south, and east. Additionally, plans for marketing water from Alcoa’s wells have not gone away.

Remember: even now, within the Lost Pines district, more water is being pumped from, than recharged to the Carrizo-Wilcox. As more people move to Bastrop and Lee Counties, more water will be required; more private wells will be drilled; Bastrop, Smithville, Elgin, and Giddings will need to find additional water sources. Recently, Aqua requested permits for seven new wells to meet projected future demand; Lost Pines GCD approved only four of the seven because of uncertainty over how the wells would affect the aquifer.

Groundwater districts refer to groundwater available for pumping as Managed Available Groundwater (MAG), which it derives from its Desired Future Conditions. A district must first determine its DFCs–in what condition to leave its aquifers at some future time (2060); the water that can be pumped and leave the aquifers in this Defined Future Condition is the MAG.

Lost Pines is still negotiating its DFCs" they must be compatible with those of the other districts in its planning area, including Post Oak GCD’s – so its MAG is not yet defined. If it were to set its DFCs to maintain the Carrizo-Wilcox at present levels, it could permit no new wells, since pumping already exceeds recharge; therefore, this is not a viable option. If it decides on a DFC allowing the Carrizo-Wilcox’s water level to fall 50, or 100, or 200 feet, then MAG becomes available.

All of this would become irrelevant if Post Oak GCD, or various other water marketers, get their way. Even with a Desired Future Condition allowing a 200 foot decline in the Carrizo-Wilcox, no additional groundwater would be available locally.