Trib + Water

When we walk through Article 3 of the Texas Constitution I like to note the inclusion of large number of bonds approved by the voters for water development projects. The availability of water has been a dominant issue for much of Texas' history.

As a way to underscore the range of issues the state faces concerning water, you might want to peruse through the various items on the subject the Texas Tribune has posted over time.

- Click here for the article.

From the Tyler Morning Telegraph: Texas' Water Rights May Be Endangered

For our look at public policy on the state.

- Click here for the article.

A fight between water planning groups was settled on Thursday with a 3-0 vote by the Texas Water Development Board which will ensure that the Marvin Nichols Reservoir will remain a part of the Dallas-Fort Worth region’s long-term water resources.

Region D, which includes rural northeast Texas counties, including a part of Smith County, was challenging Region C (Dallas, Fort Worth and some suburbs) for rights to Marvin Nichols.

The 75,000-acre, $3.4 billion (latest cost estimate) reservoir has been a part of the state’s water plan since 1968.

It’s just one example of how muddy property rights regarding ground and surface water in Texas are. And those rights aren’t expected to be any clearer by the end of the 84th Legislative Session, according to panelists of a Texas Public Policy Foundation discussion on the topic.

Panelists Molly Cagle, an environmental attorney for Baker Botts law firm, Bob Harden, a groundwater specialist and Colorado attorney and Pres. George W. Bush’s top water advisor Bennett Raley on Friday discussed the future of water in Texas as federal, state and individual rights intermingle.

Groundwater in Texas is tied to property rights similar to minerals underneath parcels — the doctrine of absolute ownership, Harden said. Rule of capture is similar to minerals, such as oil, which can be affected by pumping and therefore taken by one landowner from underneath another landowner’s property without recourse.

Ms. Cagle said groundwater rights had been eroding until the Legislature clarified and strengthened laws in recent sessions. Surface water is considered property of the state, which allows use by industry and individuals via permits.

The lack of clarity involves the differing interpretations of state laws by Texas Supreme Court judges and how federal laws, including the Clean Water Act and Endangered Species Act, can affect interpretations, she said.

“The concept that anything has been clarified is befuddling, because Texas property rights laws regarding water are not clear,” Ms. Cagle said.

From Houston Matters: Planning for Future Water Needs

In 2306 - when we walked through Article 3 of the Texas Constitution - we took note of all the bonds sold by the state that pertained to water development projects. The radio show focused on the Texas Water Development Board's recently released 50 year comprehensive plan.

- Click here for the program.

And if you are up for it:

- Water for Texas: 2017 State Water Plan.

From the Texas Tribune: In Major Water Case, Win for Ranchers is Loss For Cities

Water rights have always been a thing in Texas,and with depleted water tables peppered with the occasional drought, they're becoming more of a thing.

The interests of cities will not take precedence over the interests of farmers and ranchers.

- Click here for the story.

The Texas Supreme Court on Friday handed a victory to farmers, ranchers and other longstanding water rights holders by declining to take up a Brazos River case with widespread implications for future water battles in drought-prone Texas.

Denying a state petition for review, the justices left in place a lower court’s ruling that said Texas cannot give special treatment to cities or power generators over more “senior” water rights holders on parched rivers — even if the state declares it necessary to protect the “public health, safety and welfare.”

That means some cities, power generators or others with more “junior” river rights would need to pay up or go thirsty when severe drought strikes.

The Texas Farm Bureau, which challenged a Texas Commission on Environmental Quality policy giving cities preferential treatment in certain water skirmishes, hailed the Supreme Court’s decision to leave in place an April 2015 decision from the 13th Court of Appeals in Corpus Christi.

From the El Paso Times: Texas House begins talks on water grid, markets

Something the 85th Session will likely prioritize next year.

- Click here for the story.

Deep divisions emerged Tuesday on whether it’s a good idea for Texas to begin designing a network to carry water throughout the state.

The House Committee on Natural Resources held its first hearing on its interim assignment to study whether it’s a good idea to set up water markets and whether a statewide grid would be a good way to facilitate them.

Texas has been plagued by drought in the past and policymakers worry that population growth combined with climate change will make water even scarcer in the future.

“If we fail to plan, we’re planning to fail,” said state Rep. Lyle Larson, R-San Antonio.
Markets in which water has been traded like any other commodity have been used as a way to assign a real value to water and create economic incentives to conserve it. Such markets appear to have succeeded in Australia, where 80 percent of water is used in agriculture, much as it is in far West Texas.

However, there is disagreement over how they should be set up.

A few items for 2306

These were collected from Quorum Report - which lists a variety of topical political stories each day. Hopefully they illustrate some aspect of the reading materials.

- From the Texas Tribune: Taylor's San Antonio Win a Wake-Up Call for Democrats. San Antonio elected a new mayor, one who as not part of the traditional Democratic / Latino coalition. Turnout - as is generally the case in Texas - was very low. San Antonio has 1.4 million residents and only 33,000 showed up in the run-off election to pick the mayor. The authors wonders what this bodes for the status of the Democratic Party organization in the state and on the county level. Voter engagement is suspect as well.

- Houston Chronicle: Budget rider pulls the reins in on racing commission funding. We will post more soon on the Texas Budget. This story points out how battles between the legislature and executive agencies are often waged in budgetary language. The Budget Committee has attempted to reign in the Texas Racing Commission in order to serve the interests of groups that are opposed to its efforts to expand gambling in the state.

- Yahoo News: Texas planners look to aquifers to prepare for next drought. File this under agenda setting. The recent rains - temporarily anyway - have ended the drought in Texas, but lots of rain water ended up in the Gulf of Mexico rather than Texas' aquifers. Water policy types are looking at ways to divert future rainfall to more productive purposes.

- Lubbock Avalanche-Journal:  Debate over state, city control set to continue. One of the more consequential battles in the legislature had to do with state vs local control of local matters like drilling and business regulations. There are still unsettled matters which will likely rage in the 85th session.

- Texas Tribune: Eltife Not Running for Re-election in 2016. Speaking of the 85th Legislature, candidates are already lining up for the 2016 state elections. While the legislature itself only meets briefly, the battles over legislative matters never ends.

From the Texas Tribune: Water Ruling Cuts State's Power in Droughts

California recently responded to a crisis in the availability of water by placing limits on usage.

Texas Courts of Appeals have made it difficult for that to occur in Texas should our drought get that bad.

- Click here for the article.

A state appeals court has sided with farmers, ranchers and other longstanding water rights holders in a Brazos River case with widespread implications for future water battles in drought-prone Texas.

Upholding a lower court’s ruling, the 13th Court of Appeals in Corpus Christi on Thursday ruled that Texas cannot give special treatment to cities or power generators over more “senior” water rights holders on parched rivers – even if the state declares it necessary to protect the “public health, safety and welfare.”

As it stands, the decision would require some cities, power generators or others with more “junior” river rights to pay up or go thirsty when severe drought strikes.
The Texas Farm Bureau, which challenged a Texas Commission on Environmental Quality policy giving cities preferential treatment in certain water squabbles, applauded the ruling.

“It’s a clear win for private property rights,” said Regan Beck, assistant general counsel for the group. “The rules that TCEQ is trying to promulgate would really do away with the priority system as we know it.”

The TCEQ said it was "disappointed" in the decision and planned to appeal it to the Texas Supreme Court.

Prioritizing access for cities and power plants is "essential for public health, safety and welfare throughout the state, especially during these times of record drought," Terry Clawson, its spokesman, said in a statement.

Here's soem good news: Wells Dry, Fertile Plains Turn to Dust

The High Plains Aquifer is drying up, and when its gone, it ain't coming back.

The villain in this story is in fact the farmers’ savior: the center-pivot irrigator, a quarter- or half-mile of pipe that traces a watery circle around a point in the middle of a field. The center pivots helped start a revolution that raised farming from hardscrabble work to a profitable business.

Since the pivots’ debut some six decades ago, the amount of irrigated cropland in Kansas has grown to nearly three million acres, from a mere 250,000 in 1950. But the pivot irrigators’ thirst for water — hundreds and sometimes thousands of gallons a minute — has sent much of the aquifer on a relentless decline. And while the big pivots have become much more efficient, a University of California study earlier this year concluded that Kansas farmers were using some of their water savings to expand irrigation or grow thirstier crops, not to reduce consumption.

A shift to growing corn, a much thirstier crop than most, has only worsened matters. Driven by demand, speculation and a government mandate to produce biofuels, the price of corn has tripled since 2002, and Kansas farmers have responded by increasing the acreage of irrigated cornfields by nearly a fifth.

From the Texas Tribune: Getting Serious About a Texas-Size Drought

Texas might even take conservation seriously. For our look at agenda setting:

The drought that has gripped much of Texas since the fall of 2010 shows few signs of abating soon. The latest forecasts say that parched West and South Texas will remain dry, and that the state is likely to see above-average temperatures this spring, increasing evaporation from already strained reservoirs. The conditions could lead to severe water restrictions in some parts of the state.

The implications have finally sunk in among lawmakers and business leaders here, who like to boast about the economic appeal of Texas’ low taxes and relaxed regulatory environment: No water equals no business.

Notice that its being tied into business. Conservation - on its own - goes nowhere in the state, but if it is essential for business interests, then the state starts taking it seriously:

Officials from Gov. Rick Perry on down are focused on expanding water supplies. Doing nothing could create “a reputation that Texas is not a business-friendly state,” state Rep. Lyle Larson, R-San Antonio, warned fellow lawmakers last month. Bill Hammond, president of the Texas Association of Business, agrees. “Clearly, not having an adequate water supply will harm us in terms of bringing jobs to Texas and is doing so now, already,” he said recently.

Cargill, the giant food producer, idled a beef-processing plant in Plainview in the Panhandle this year after ranchers thinned their herds because of dry pastures and soaring hay prices. Some 2,000 people lost their jobs in the town of 22,000. Power plants and other industrial operations that depend on water are also worried. One community close to Austin nearly ran out of water last year and had to truck in supplies. That’s a public relations disaster for a state that brags that it does things better than other places.

. . . Wes Perry, an oilman who doubles as Midland’s mayor, put it this way recently: As valuable as oil and gas are, he said, “we are worthless without water.”

A bit more on HB 4: How will the state fund its water plan?

That seem to me to be all this bill is about. The state long authorized the establishment of wate development projects, they have yet to figure out how these will be funded. The amount this will cost will be steep, so the controversy is not surprising. Nevertheless the bill passed by a 144-3 vote, so the issue seems mostly worked out, with a couple exceptions described in theis Quorum Report piece:

The Texas House today took a first step toward enacting the funding structures to finance the state’s 50-year water plan. On a 144-3 vote, they gave preliminary approval to HB 4, which sets up the revolving investment bank that would support the state’s $27 billion share of fulfilling the plan.

The actual funding would come via a transfer from the Rainy Day Fund. That will be taken up later in HB 11.

The first long term water plan dates from 1997 but the Legislature has taken its time about establishing a funding source for the projects called for in the plan.

According to the House Research Organization, demand for water in the state will increase by 8.3 million acre-feet by 2060. The most recent iteration of the state’s water plan would develop 9 million acre-feet through 562 water projects and calls for spending a total of $53 billion.

HB 4 sets up the State Water Implementation Fund (SWIFT), which would be established outside of the state treasury and would be overseen by the Texas Treasury Safekeeping Trust Company.

The Texas Water Development Board would come up with a system to prioritize water projects based on how much local money is being put up, how quickly a project is needed and how ready the project is to begin among other criteria.

The bill includes some safeguards to make sure that the funding isn’t too concentrated geographically. It would require at least 10 percent of the funding for water projects to go to rural areas of the state and would require another 20 percent of the funding go toward water conservation and reuse projects.

The first key vote came early in the debate when state Rep. Phil King (R-Weatherford) submitted an amendment that would make the conservation and reuse requirement optional.

The 20 percent standard actually understates what the 2012 water plan calls for. The long term planning document envisions about 34 percent of the 9 million acre-feet that would be developed by 2060 would come from conservation and reuse.

The standard, though, came under fire from conservatives. Arlene Wohlgemuth of the Texas Public Policy Foundation called the 20 percent standard “problematic” in a statement this morning. She added that neither conservation nor reuse “is guaranteed to expand the available supply of water in Texas.”

State Rep. Doug Miller (R-New Braunfels) spoke against the King amendment. Drawing on his tenure serving on his regional water planning group, he said his experience was that conservation projects represent “the cheapest form of water” and should be pursued in the water plan.

King’s amendment died on a 104-41 vote.

That was soon followed by state Rep. Van Taylor (R-Plano) who sought to insert language cutting off the Rainy Day Fund as a source of funding for the water plan. Taylor said he was motivated by the desire to keep the balance in the economic stabilization fund healthy enough to keep the state’s bond ratings as high as possible.

If successful, it would have thrown a serious roadblock into the funding structure behind HB 4, which relies on a $2 billion transfer from the RDF.

Echoing what Gov. Rick Perry laid out in his budget, Taylor said the RDF needs to keep a balance of about 7.5 percent of GR funds. That’s about $7.2 billion, he said. Taylor’s position was also backed by Wohlgemuth who said this morning that funding for the water plan shouldn’t come from the RDF and should be within the state’s spending cap.

The Taylor amendment died on 129-15 vote.

When Taylor then followed with another amendment that he said would preserve the purchasing power of the fund, he was challenged by state Rep. Lyle Larson (R-San Antonio) who asked if Taylor intended to vote yes on HB 4.

Taylor said no, leading Larson to accuse Taylor of being “disingenuous” in offering his amendments for “political purposes.” Taylor later said he would have been in favor of the bill if his amendment removing the RDF as a funding vehicle was successful.

His second amendment also failed on a 127-18 vote.

Taylor later tried to take the bill down on a procedural point, saying that the bill wasn’t filed according to the 5-day posting requirement. His point of order was denied, allowing debate to continue.

Water Bill passes the Texas House

The bill is HB 4, and it provides a funding mechanism for water development projects.

From the Texas Tribune:

The Texas House approved legislation Wednesday that would use $2 billion to start funding water projects in the state. House Bill 4, by state Rep. Allan Ritter, R-Nederland, would create a water bank that would offer loans for projects like new water reservoirs, pipelines and conservation projects.

“As Mother Nature has reminded us in the last couple of years, we can’t change the weather,” Ritter said at the outset of the hearing, “but with sound science and foresight and planning, we can conserve and develop supply to meet our future demands.”

The bill passed nearly unanimously, with only two votes against it, from state Rep. David Simpson, R-Longview, and state Rep. Van Taylor, R-Plano. Now the bill is headed to the Senate.

The bill survived several amendments that would have drastically changed how the water funding will work. One was to remove the requirement that 20 percent of the money goes to conservation. The other would have taken away access to the state’s rainy day funds, effectively gutting the bill.

Click here for the 2012 State Water Plan.

From the Texas Tribune: Texas Lawmaker Seeks Overhaul of Water Board

More on one of the major topics of the current legislature - water development.

In this case, a legislator wants to overhaul the Texas Water Development Board:

The board, created in 1957, is overseen by six part-time board members, who serve on a volunteer basis after being appointed by the governor. But state Sen. Troy Fraser, R-Horseshoe Bay, chairman of the Senate Natural Resources Committee, wants to change the structure to three full-time members, also appointed by the governor.

Senate Bill 4, introduced by Fraser, would make those changes. According to a fiscal note for the bill, this would carry a price tag of nearly $1.3 million for expenses such as salaries and office space.

“I haven’t had a lot of luck communicating” with the six part-time directors, Fraser said at a committee hearing this week. The new structure, he said, would mirror that of the Public Utility Commission and the Texas Commission on Environmental Quality. With full-time directors, “when there’s a question about something, I can pick up the phone and call,” Fraser said, and they can be at the Capitol in minutes.

This seems to be an effort to change and amateur part time board into a full time professional one. Is this part of a broader trend?

From the Texas Tribune: Texas Lawmakers Prepare to Take On Water Projects

With the drought in Texas continuing, the legislature is expected to highlight water projects in the upcoming session.

From The Texas Tribune: Texas House Speaker Promises Water Focus

This builds on theme, Texas' concerns with the future availability of water:


Texas House Speaker Joe Straus promised to work on water issues and protect private property rights at the Texas and Southwestern Cattle Raisers  Association annual meeting Tuesday in Austin.

“When the 83^rd legislature convenes in January, we’re going to have a unique opportunity to address the huge growth Texas is experiencing,” Straus said. “Water will be at the center of the discussion.”

Straus remarked on the vital role of water in Texas’ economy and cited the drought and 2011’s brutal heat as reasons to focus on conservation efforts.  “I don’t want to reach a day where a Texas company announces it’s moving to Florida or Ohio because of water issues,” he said.

Here's a link to info on the interest group he spoke to: the Texas and Southwestern Cattle Raisers Association. Its a very old group - dating to 1877. Here's their website.

The trick will be developing projects which address the general need for water in the state which doe not conflict with the property rights of large scale landowners. Anticipate conflict.

From the Texas Tribune: In a More Urban Texas, Farmers Face Uncertain Future

I posted new material for GOVT 2306 - Texas and Local Government - which touches on Texas' ongoing transition from a rural to an urban state. This story suggests that the change marks a crisis for agrarian interests in the state.

The drought continues to wreck havoc on farmers, and the increased clout of cities raise questions about whether water intensive crops will be able to draw the water necessary to survive. Will cities get it instead?

Some random links to sites related to water policy in the state

- The Texas Water Planning Process.
- Llano Estacado Regional Water Planning Group.
- TWDP: Regional Water Planning.
- NYT: Water Policy in Legislature Rode on One Word.
- Water News Blog.
- Save Texas Water.
- Water For Texas: Summary of the 2011 Regional Water Plans.
- Liquid Assets.
- HB 1730.
- SB 332: FRASER FILES WATER RIGHTS MEASURE.
- History and Evolution of the Rule of Capture.
- Gulf Coast Water Conservation Symposium 2012.

- August 2001: Texas Water Policy Update.
- Putting the Public in Public Involvement.
- Senate Select Committee on Water Policy.

Texas committee hearing held on water policy

From the HC, more on an ongoing topic in this class:

Last year's record drought was like an alarm sounding, lawmakers said Thursday, and Texans must now decide to respond by investing in the state's future water supplies.

"If the people of Texas don't want to stand up and provide infrastructure we need for our future, it isn't going to happen," House Natural Resources Chairman Allan Ritter, R-Nederland, said during a hearing of his committee. The group is examining the impact of the Texas drought, evaluating how the state's existing water supplies can meet demand and looking at funding the state water plan.

The Legislature approved a $53 billion water plan 15 years ago but has not found a way to finance it.

The fallout form the Texas Supreme Court's water decision

Some thoughts from the San Antonio Express-News, more litigation and higher water costs:


The court decision raises numerous questions for EAA officials and Texans who rely on the Edwards Aquifer. The ruling will have widespread impact on other water districts as well.

Can every homeowner who has a lot over the aquifer now seek permission to drill a well and win compensation if the request is denied? Has the statute of limitations for seeking new pumping permits expired?

EAA officials may file a motion for reconsideration in an effort to learn more about the court's reasoning.

EAA Chairwoman Luana Buckner said the worst-case scenario is five or six years of lawsuits and takings rulings. That could drive up the cost of Edwards water dramatically.

Property rights advocates are cheered by the ruling, but the decision did not clarify what set of circumstances constitutes a taking.

EDWARDS AQUIFER AUTHORITY v. DAY

For some light reading, here is the Texas Supreme Court decision limiting the regulatory power of the Edwards Aquifer Authority.

From the Texas Tribune: Texas Supreme Court Rules For Landowners in Water Case

Here's a subject that ties in our recent look at water policy with the Texas Judiciary. A recent decision may make it difficult for local governments to regulate water use. This might make water policy very difficult to implement. 

In a case with potentially vast implications for groundwater rules in Texas, the state supreme court has unanimously ruled in favor of two farmers in the San Antonio area who challenged the local aquifer authority's sharp restrictions on their use of a water well on their land.

The much-anticipated ruling is "going to make life much more complicated for groundwater districts," said Gregory Ellis, an attorney and the former general manager of the Edwards Aquifer Authority (EAA).

Texans wanting to put a well on their land generally must go to their local groundwater conservation district for permission to withdraw a certain amount of water, as part of an effort to keep aquifers healthy.