POSTED: Thursday, August 29, 2013 - 12:00pm
UPDATED: Thursday, August 29, 2013 - 12:14pm
SAN MARCOS, TX — As groundwater  managers from across the state met here this week to discuss the numerous challenges they face, talk of legislative changes to water financing and a campaign to convince voters to allow more of it was eclipsed by more pressing issues.
To be sure, attendees of the Texas Alliance of Groundwater Districts' annual meeting discussed lawmakers' efforts this year to push for more comprehensive statewide water planning, and the importance of campaigning for Proposition 6, which would add $2 billion to the recently overhauled Texas Water Development Board’s portfolio for loans toward future water supply projects.
But as the meeting made clear, money won’t fix many of the problems confronting the state's groundwater districts, which are facing some of the worst drought conditions in state history and increasing pressure due to population growth, oil and gas drilling activity, and environmental concerns. And news of a ruling issued by a state appeals court on a closely watched case involving the Edwards Aquifer Authority also stirred concerns of the murky waters the districts must tread.
Texas has nearly 100 groundwater conservation districts, or GCDs, which are chiefly responsible for regulating the use of groundwater in the state. (In contrast, surface water is generally owned by the state and therefore regulated by the Texas Commission on Environmental Quality.) Many GCDs were created in the last 16 years, and lawmakers have given them more responsibility to ensure that users pumping from their aquifers follow rules that protect the environment and prevent the aquifers from being depleted.
Yet Texas water law applies the “rule of capture” to groundwater, meaning landowners own the water beneath their land and can pump as much as they'd like.
GCDs were created in part to help control the problems that would arise from such a system, like a landowner pumping so much water that a neighbor's well runs dry. In a ruling issued Wednesday in the case Edwards Aquifer Authority vs Bragg Pecan Farms, a state judge illustrated the difficulty of the balancing act GCDs must perform.
A couple had filed suit against the authority — one of the state's biggest GCDs — alleging it did not allow them to pump enough water to maintain two pecan groves, resulting in a "taking" of their land.
“The 'property' actually taken is the unlimited use of water to irrigate a commercial-grade pecan orchard,” and the couple deserves compensation for that, Justice Sandee Bryan Marion of Texas’ 4th Court of Appeals wrote in her ruling.
The Bragg opinion stemmed from the notion that properties rely on the expectation of being able to pump “unlimited” amounts of water for land use they've invested in. And given that the job of a groundwater district is to regulate pumping, the conflict is apparent.
“Groundwater districts are facing an impossible task,” said Mary E. Kelly, principal at the Austin environmental consulting firm Parula. “I just don’t know what districts do with this.”
Terri Herbold, a spokeswoman for the Edwards Aquifer Authority, said the authority’s legal team was still reviewing the judge’s decision and was not ready to comment. But, she said, the decision will likely be appealed and for now will not affect day-to-day operations.
The Bragg decision has stirred concerns that businesses, like ranches or water companies, will use it to threaten legal action if a GCD tries to limit the amount of water they can pump. And as surface water supplies dwindle in high-growth areas like Austin and Dallas, many private water companies are looking for alternatives — which usually involve pumping groundwater. Those alternatives would require expensive pipelines and a steady water demand, which a GCD might try to limit.
“They want certainty,” Brian Sledge, an attorney with the Austin firm Lloyd Gosselink, said of such water companies, some of which are called “water speculators.” “They want to make sure that groundwater conservation district can’t cut off their water supply.”
Those companies were the driving forces behind lawmakers’ attempts to limit the authority of GCDs during this legislative session. None of those bills passed, but they will be introduced again in 2013, Sledge told GCD managers at the summit.
“There’s some desire for a change in the way we do groundwater management in the state,” driven by the demand for new water supplies, Sledge told the audience. “The time to get involved in these issues is now.”
On the other hand, as the U.S. Fish and Wildlife Service considers adding more than 80 new creatures in Texas to the endangered species list, federal forces may soon push groundwater districts to limit the ability to pump from their aquifers. Many of those aquatic species rely on entities like GCDs to make sure their habitats are protected and aquifer levels don’t fall too low.
For the Barton Springs/Edwards Aquifer Conservation District, this has already presented major concerns. John Dupnik, the district’s general manager, told the audience that he has already implemented a strict, complicated pumping limitation system for all the users in his GCD to help protect an endangered salamander that lives in Barton Springs.
"We’ve curtailed rights as much as we legally can,” he said. And in extreme drought conditions, he added, the district would still not be able to maintain the conditions deemed necessary to protect the animal.
GCD managers said the state water plan and the possibility of $2 billion for project loans might help them implement larger conservation projects, collect data on aquifer levels and even create surface water supplies that could offset the need for groundwater.
But that doesn’t address the rule-of-capture conundrum. Nor does it address concerns over the amount of water used for hydraulic fracturing, or fracking, which many GCD managers at the summit said was already affecting aquifer levels.
“The water table continues to drop,” said Paul Bertetti of the Southwest Research Institute in San Antonio, which studies the effects of fracking on water quantity and quality, particularly in the Eagle Ford Shale. He estimated that fracking accounts for one-third of the total water use in the Wintergarden Conservation District in South Texas.
Water contamination is also an issue, Bertetti said, adding that based on his research, the process of injecting wastewater into underground wells, rather than the drilling or fracking process, is a main cause.
“These disposal wells may be the greatest threat to groundwater in the region,” Bertetti said.