Category Archives: Legislature

Texas Groundwater – Other Voices

The ongoing saga involving groundwater ownership has been well documented on this blog.  Today, the House Natural Resources Committee is scheduled to hear the house version of the groundwater bill, Chairman Ritter’s HB 1730.

Both this bill and the senate compromise bill fail to address real concerns about its environmental impacts, the legal door it opens or its financial implications. Environmental groups are not alone in their opposition to this legislation.  Rice interests have joined in against the bill.  In an email to members to the Texas Rice Producers Legislative Group, Chairman LG Raun, laid out several reasons for the group’s opposition: (italicized)

  • It jeopardizes the sustainability of aquifers by encouraging pumping limits to be raised

We are in the middle of the worst Texas drought in 44 years and anything that raises pumping limits right now puts Texas’ water sustainability at risk.  We cannot afford to increase the demands on our already over-committed water resources.

  •  It monetizes groundwater so that landowners are guaranteed the right to pump groundwater, or they could be compensated by taxpayers if not allowed to do so

Making guarantees using shared resources can place a hefty financial obligation on groundwater conservation districts, the state and landowners.  In a Legislative Session in which members want to limit tax obligations on the public, this bill doesn’t seem to pass muster. Rice Farmers also take issue with the bill’s broad definition of “landowner.” We agree that when it comes to water and conservation, increasing the number of interested parties who can claim a “takings” is not a good idea. 

  •  It threatens the viability of groundwater conservation districts by subjecting them to excessively high risks of taking claims

The bill doesn’t properly protect Groundwater Conservation Districts from “takings” claims and leaves them open to an excessive liability, which virtually destroys the legislative intent reflected in the creation of the districts.  If passed, a large portion of the state’s water could be wrapped up indefinitely in litigation. 

Texas rice farmers are no strangers to water constraints.  The need for a readily available water supply is essential to their livelihood and their concerns about this issue is yet another clear indication of the real issues the bill presents. These concerns mean more uncertainty in Texas groundwater, including more lawsuits and more stress on aquifers and water resources that Texas cities count on. 

We agree with Sierra Club, who has suggested the bill be tabled until its environmental impacts can be studied by well-recognized hydrologists and scientists.  It’s the right thing to do.

Also posted in Edwards Aquifer, Groundwater, Ogallala, Water Rights | 1 Response

The Texas Groundwater Battle Continues

UPDATE: CSSB 332 Passed the senate.  If you are concerned about the bill – please contact the house member for your district.

A bill that could turn Texas groundwater management on its head could see a vote on the Senate floor as early as tomorrow (Wednesday, March 30, 2011).

Recently we posted about Senators Troy Fraser and Robert Duncan’s competing groundwater ownership bills.  Both bills left interested parties less than satisfied. A recently released compromise bill (Committee Substitute for Senate Bill 332 (CSSB 332)) is quickly moving through the legislative process, but did they get it right?

Unfortunately, Ken Kramer, Director of the Lone Star Chapter of the Sierra Club doesn’t think so. In a press release today, he stated his continued opposition to the bill. Although he recognized the efforts to bolster a groundwater conservation district’s ability to defend itself against court a landowners “takings” claims as a result of a district’s regulation or other action, he is still concerned by the bill’s continued declaration that groundwater ownership is a ‘vested’ property right.

 “By saying that a surface landowner has a ‘vested’ right to groundwater in place . . . the Legislature would be subjecting virtually every action by a groundwater district to a potential ‘takings’ claim . . . The result is likely to be either an explosion of litigation against districts for their actions to manage groundwater or a ‘chilling effect’ on districts taking action, or both.” 

Groundwater districts do not have the means to defend their actions against numerous individual takings claims in court or potentially paying millions of dollars in judgments. This economic reality would vitiate the legislative intent behind the creation of districts because they would be unable to continue their legitimate management functions. Further, there is already a legal avenue to challenge district actions in court as appeals of administrative decisions. 

Ken said it best by explaining, “[t]he future of the Texas economy and the preservation of our state’s environment depend upon a management system that recognizes legitimate limitations on groundwater withdrawal and use and strives ultimately for sustainability of groundwater resources. That will not be possible in a system based on concept of vested groundwater ownership rights. A vested groundwater ownership rights concept will complicate, not simplify, our ability to implement such a system effectively.” 

We will keep certainly keep an eye on this one and if you are concerned about CSSB332, contact your State Senator and tell them to vote no.

Also posted in Austin, Groundwater, Texas Rivers | Tagged , , | Leave a comment

The Senate Spends the Day Talking Groundwater

It’s fitting that on Texas Independence Day we are reporting on the hearing that Sen. Troy Fraser called the “Super Bowl of Water.”  Perhaps nothing stirs people's opinions in Texas more than water and private property. In a marathon 9-hour hearing yesterday, the Senate Natural Resources Committee debated two divergent bills attempting to define groundwater rights in Texas.  Sen. Troy Fraser’s bill, SB 332, seeks to decree a “vested ownership interest” in groundwater for private landowners. Sen. Robert Duncan’s bill, SB 667 seeks to better define the ownership rights of captured groundwater and clarify the authority of a groundwater district to regulate the conservation of that water. 

SB332

Testimony on SB 332 began with several state officials including Texas Agricultural Commissioner Todd Staples, Comptroller Susan Combs and a representative from the Attorney General’s office.  Staples and Combs both testified “on” the bill which means they weren’t officially taking a position for or against the bill, but both expressed their support for the rights of private property owners.

Landowners, including members of the Texas Farm Bureau and Texas and Southwestern Cattle Raisers Associations testified in support of Fraser’s SB 332, asserting their right to water flowing underneath their property.  What some conservations districts, environmental groups and others take issue with, is the ambiguity of those rights as defined in the bill.  In particular was the word “vested,” “You can ask different lawyers what those legal phrases mean and you get different answers,” said Jim Conkwright, manager of the High Plains Underground Water District No. 1 in Lubbock. Several Groundwater Districts’ representatives testified that they are largely concerned the bill will cripple their power to promote conservation and expose the already beleaguered system to never-ending “takings” litigation. 

 SB 667

Duncan’s bill seeks to further statutorily define the rights and powers of conservation districts, by allowing them the authority to regulate groundwater use through reasonable limits while still providing landowners clear rights to the groundwater under their property.  While everyone agreed about the need of conservation districts, landowners wanted clear authority to drill wells.  Bill Lynch, a landowner testified that the bill was tantamount to socialization of water, while Ken Kramer of the Lone Star Chapter of the Sierra Club testified that this bill further defined what was already existing law. 

As Texas grows and water’s scarcity becomes even more contentious, ambiguity is not our friend.  At odds in this issue are the interests of greater good and the rights of individual landowners.  It isn’t the first time and it won’t be the last time these interests are at odds, but with a resource as precious as water how can we must respect the right of the legislatively created districts to help achieve sustainability.  If you are interested in watching part or all of the hearing you can do so HERE.

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The Legislature Plunges into the Groundwater Ownership Fray

Well we knew it was coming and only one day into session, and already we have a bill from Senator Fraser addressing groundwater ownership.

According to Senator Fraser, Senate Bill 332 “would clearly state that landowners have a vested ownership interest in the groundwater beneath their property…[G]roundwater conservation districts could still require a landowner to get a permit and limit the amount of groundwater that can be produced. However, the legislation would prevent a district from "taking" a landowner's right to capture the water beneath the land.”    

This all sounds very reasonable and benign, but the reality is that this legislation could undermine the ability of groundwater conservation districts to effectively manage the very resource that they are charged with protecting.  If every landowner has a vested right to the groundwater beneath their property how can a GCD manage that land owners’ access without it being considered a taking? 

Unless groundwater producers are subject to reasonable regulation by a GCD, we all run the risk of having that resource diminished in the future so that water may not be available.  All it takes is one bad actor. This affects cities, farmers, our rivers and streams…it effects everyone.  There is a limited amount of groundwater (and surface water, but that is another post) that can be produced, while also preserving and protecting this resource for future generations. 

Anticipating this issue, the Region K Water Planning Group passed a resolution yesterday stating that they “recommend strongly against the Texas Legislature or courts taking actions that would result in the creation of a vested right in groundwater prior to capture.”  Many people rely on groundwater in this region.  It is not possible to effectively plan for the future if access to groundwater can not be protected now and into the future.  The Coastal Bend and Colorado County GCD’s have passed similar resolutions as well.    

You can be certain that there will be more to come on this issue.  We will keep you posted.

Also posted in Groundwater, Water Rights | 5 Responses

Sunset Chair Proposes Abolition of Water Conservation Advisory Council?!

This just in — the Sunset Advisory Commission submitted a last-minute proposal to abolish the state’s Water Conservation Advisory Council when the Commission makes its final recommendations on the Texas Water Development Board Thursday. “The most recent state water plan calls for almost a fourth of the state’s future water demands to be met through water conservation over the next fifty years, and that figure may be increased to a third,” said Ken Kramer, state Sierra Club director, and Council environmental representative.  “The proposal to eliminate the one state body whose primary mission is to advance water conservation in Texas makes absolutely no sense and could seriously undermine Texas’ ability to plan effectively to meet the water future needs.”

The Water Conservation Advisory Council was created in 2007 following the passage of a major piece of state water legislation, Senate Bill 3. The Council advises the Texas Water Development Board (TWDB) – the state’s primary water planning and financing agency – and other state agencies on ways to enhance water conservation efforts. The Council has a diverse membership of water suppliers, water districts, environmental interests, industries, academia, and other sectors. 

The reason given for the recommendation is to save money; however, the relatively small amount of state funding for the operation and staff support of the Council – slightly over $80,000 a year – is a pittance compared to the value of the member’s voluntary hours not to mention the avoided costs of new supply achieved through recommended conservation measures.

The Sunset Commission staff has been reviewing the Texas Water Development Board and its associated bodies such as the Advisory Council for well over a year. The Commission staff made no recommendation to abolish the Council nor was any suggestion to abolish the Council made during the public hearing on the Water Development Board before the Commission in November. The proposal was just made public yesterday when the Sunset Commission staff released “Decision Material” and apparently comes from the office of Senator Glenn Hegar, the Chairman of the Sunset Advisory Commission.

This last-minute proposal to abolish the Water Conservation Advisory Council vitiates the open Sunset process and shows little regard for the important role of water conservation in the future of Texas water. The Sunset Commission should reject this 12th hour proposal.

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What can Texas water expect from legislative session?

It's almost that time again: Legislative session — the 140 days every two years when all Texas laws are passed and water will be a big topic this year.  Of course, no one really knows exactly what laws will be proposed or passed, but general areas of interest can be predicted.  This was a big topic of discussion at a recent legal conference I attended.  Here are some of things we could see.

Water Conservation

Despite the hurricane induced rains in September, we are still in a drought.  If we don't receive generous spring rains we will enter this summer at a deficit.  A lack of rain always revives the important conversation about conservation and how to minimize water usage.  There will likely be bills related to this issue such as requiring water loss audits and minimization of leakage.

Water Planning Process

The Texas Water Development Board (TWDB) has just received regional input for groundwater desired future conditions (DFCs).    Through the process, procedural issues have arisen regarding the calculations, dissemination of information and how to proceed with dispute resolution when two groups want to use the aquifer differently.  Solutions to these will likely be sought through legislation. In addition, the TWDB will be seeking money to fund their water supply projects.

Sunset

As we have discussed here , both the TWDB and Texas Commission on Environmental Quality are up for sunset review.   The two agencies make most of the decisions regarding Texas water quality and quantity so there will be discussions about water governance as part of this process.

Groundwater Ownership

An important case regarding groundwater ownership is still in front of the Texas Supreme Court.  This issue is also being touched on by the DFC process as some groups are concerned that the process limits property rights.  It is unclear whether the legislature will want to move on an issue currently before the court, but it will most certainly be a topic of discussion in the hallways. 

There are lots of things on the legislative agenda this session including redistricting, sunset of several major agencies and voter ID which could keep many individual bills from moving, but we will be watching and keeping you up to date.

Also posted in Central Texas, Regional Planning Process, Sunset, TCEQ, TWDB, Water Planning | Tagged , , , , | Leave a comment

Alphabet Soup: Navigating the Senate Groundwater Interim Hearing

Today's Senate Natural Resources (SNR) interim hearing was a lesson in the alphabet.  The primary topic: Groundwater.  The SNR had two primary interim charges relating to the groundwater planning process and financing many of the water infrastructure projects proposed in the State Water Plan.   Invited testimony was given by state agencies, landowner groups, groundwater districts (GWD) and environmental representatives.  The day set the stage for many of the issues that are sure to arise next legislative session.   The groundwater management process, determining desired future conditions (DFCs) and ownership could be heard at every turn. 

Robert Mace with the Texas Water Development Board (TWDB) kicked off the day discussing the DFC process and presenting the draft policy recommendations of the agency.  These included a request that DFC guidance be included in the water code; ensuring stakeholder outreach so that those affected are aware of the process; alteration in the petition process; timing and definition issues.   Several of these have been included in the agency's rule makings but are not yet in the code. 

The Texas Farm Bureau and Russ Johnson, an attorney representing the landowner perspective both expressed concerns with the potential ruling by the Texas Supreme Court regarding groundwater ownership.  Both felt that water is a property right and limiting access could result in a taking.  Mr. Johnson also pointed out several deficiencies he found in the DFC process.   He feels there is too much uncertainty in the process and warned against overregulation limiting interbasin transfers and negatively impacting Texas business. 

Groundwater district representatives were also present their experience tha the existing system was successful and the environmental perspective was presented by Sierra Club's Ken Kramer.   In the midst of all the acronyms and conflicting opinions, one thing is clear: groundwater issues are not going away and the legislature has a lot of work to do.   

Interested in hearing more? Just watch the archived recording online.

Also posted in Austin, Central Texas, Environmental Flows, Groundwater, Ogallala, Regional Planning Process, Water Planning, Water Rights | Tagged , , , | Leave a comment

Deep in the heart of Dryness: How climate change could impact Texas

The conclusion of a new study by Natural Resources Defense Council (NRDC) and Tetra Tech is that Texas will have lots water shortages by the year 2050.  Does that seem far away? Well it isn’t. The time for planning is now!

The report

The study evaluated current usage, population change and climate trends and found that many Texas counties will be in the hot seat. Literally. 

Currently, more water is withdrawn from Texas surface and groundwater resources than is returned.   The state climatologist has already recommended that North Central Texas be listed as being in a drought again.  The report took this trend and considered the additional strain of a predicted doubling of population and changing weather patterns (increased temperature and decreased rainfall) and found a big problem.  Most of the state will fall into the “extreme” risk of loss of water sustainability category by 2050.

Things they didn’t consider

While this is certainly a scary prospect, it is important to note that it assumes a “business-as-usual” scenario much like the State Water Plan does. (Interestingly, the State Water Plan didn’t even consider climate change scenarios.)   The report assumes that both growth patterns and the electric generation sector will continue to grow at current rates.

This business-as-usual assumption is selling Texas short of its ability to stretch its resources and save money with conservation and new technology.

What it means

Water is finite and authorities need to think ahead. If they wait until the water is gone, it’s too late.  Just ask the city of Atlanta

Texas can prepare itself in several ways:

  • Maximize water conservation and efficiency across the state and ensure they are included in planning scenarios so unnecessary water supply projects are not constructed;
  • Include climate change scenarios in water planning processes;
  • Regional planning groups should be allowed and encouraged to select conservative measures for meeting water supply needs; and
  • Future water supply projects should be evaluated under potential new weather scenarios, including increased evapotranspiration rates due to increasingly higher temperatures.

This report predicts the future if we continue to move straight forward on a line.   Our challenge it to change that trajectory using knowledge we already have to avoid these dire predictions becoming reality.

Also posted in Energy-Water Nexus, Groundwater, Water Conservation, Water Planning | Tagged , , | 1 Response

Environmental Flows Advisory Group to review SB3 progress

The Environmental Flows Advisory Group (EFAG), which oversees the implementation of the environmental flows process under SB 3, will meet in Room E.1.012 of the State Capitol Extension on Thursday, May 27th, beginning at 11 a.m. 

Co-chaired by outgoing State Senator and Senate Natural Resources Chair Kip Averitt and House Natural Resources Committee Chair Allan Ritter, the EFAG has several important topics to take up at this next meeting.  These topics include evaluating the recommendations of the science committees in the first two basin/bay systems going through the SB 3 process—the Sabine/Neches and the Trinity/San Jacinto.  EFAG is charged with providing comments to the Texas Commission on Environmental Quality regarding the science group recommendations.

The statewide Science Advisory Committee, on which I serve, has provided our comments to the EFAG to assist in these deliberations.   

Senate Bill 3 is an ambitious and precedent-setting piece of legislation.  Some bumps in the road in its implementation are to be expected.  We have seen a couple of these already, with the science team in the Trinity/San Jacinto failing to reach a full consensus and thus submitting two different flow “recommendations.”  More recently, a majority of the Sabine/Neches stakeholder committee, which is charged with trying to balance human water needs with the science committee recommendations, concluded basically that the science wasn’t adequate to make a flow standard recommendation to the Texas Commission on Environmental Quality, as envisioned by SB 3. 

But, with good will and continued investment in this process, and potentially more time for some of the bay/basin committee work, these obstacles can be overcome.  The future of Texas rivers and bays in many ways depends on it being successful.  The extraordinary time and energy and good science already contributed by many, many people around the state to working through difficult scientific, technical and policy issues is a great sign that Texans care about protecting our natural heritage. 

Here is hoping that the EFAG validates the value of this process and provides a push for all parties to re-double our efforts and find common ground through the participatory mechanisms set up by SB 3.

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Senate Bill 3 Implementation Issues: Inter-basin Transfers

This post was written by Mary Kelly, Environmental Defense Fund's Senior Counsel for Rivers and Deltas, and Myron Hess, National Wildlife Federation's Texas Water Programs Manager.

Given that the environmental flows section of Senate Bill 3 , enacted by the Texas legislature in 2007, is one of the most advanced statewide laws of its kind in the country, its implementation is bound to raise some interesting legal issues.  

In the Sabine/Neches basin, one of the first to go through the flows process, there have been some recent questions raised about the potential for existing rights to be affected by the adoption of environmental flow standards, particularly with respect to proposed inter-basin transfers from an existing reservoir, Toledo Bend, which is owned and operated by the Sabine River Authority.

In considering those questions, it is important to note the general rule that environmental flow standards, including environmental flow set asides, adopted pursuant to the Senate Bill 3 process do not affect existing water rights granted prior to the effective date of Senate Bill 3 (Sept. 1, 2007).  If a new or increased appropriation is not at issue, nothing in Senate Bill 3 makes existing rights subject to additional review or new environmental flow conditions.  However, there are limited situations when existing rights undergoing certain changes are subject to environmental reviews pursuant to longstanding law. Once environmental flow standards are adopted, they likely would be relevant, but non-binding, considerations for TCEQ in applying that existing authority. 

Since 1997, the state water agency, now the Texas Commission on Environmental Quality (TCEQ) has had explicit authority to impose environmental flow conditions on proposed new inter-basin transfers. It seems likely that TCEQ would consider any new environmental flow standards developed under SB 3 in exercising its discretion to apply environmental flow conditions.  Thus, this issue might be of interest to the Sabine/Neches Bay/Basin Stakeholder Advisory Committee (BBSAC) as it seeks to formulate its recommendations on environmental flow standards.  However, any such evaluation would need to compare the consequences of applying proposed new flow standards with the consequences of applying other flow conditions, such as the consensus criteria traditionally used in state water planning.  Given the statutory provisions that existed for a decade before SB 3 was enacted, the comparison should not be between potential SB 3 standards and no environmental flow conditions.  

We set out our thoughts on this issue in a memo that can be found here. No doubt, this is one of many interesting implementation issues likely to arise the bay/basin stakeholder committees in both the Sabine/Neches and the Trinity/San Jacinto basins work to develop their recommendations over the next several months.

Also posted in Environmental Flows, Resources, SB3, TCEQ, Texas Rivers, Water Rights | Tagged , , , , | Leave a comment