Texas Water Law - San Antonio Water & Texas Water Rights Attorney Trey Wilson
It has been said "Whiskey is for drinking and water is for fightin." In Texas, water is our most valuable resource, and has become increasingly scarce with our State's population explosion. Naturally, ownership, control and use of water carry tremendous legal and financial implications. Meanwhile, multiple layers of governmental regulation have made acquisition, development, use, marketing, and transmission of water in Texas increasingly complex. This site contains the musings of a water lawyer.
CHICAGO - Chicago has been contaminating its drinking water with lead for years as it tried to fix its aging lead pipes, and it knew it, residents claim in a class action that may have more victims than the fiasco in Flint, Mich.
The three named plaintiffs claim that Chicago's attempts to patch its aging water distribution leached lead into the water supply from the corroding pipes.
Chicago has more lead pipe water lines than any other U.S. city - nearly 80 percent of Chicago properties receive their drinking water from lead pipes, according to lead plaintiff Tatjana Blotkevic's lawsuit in Cook County Chancery Court.
BARTLETT, Texas - The mayor of a small Central Texas town says the city will be without water for up to three days after two water pumps failed.
The Temple Daily Telegram reports that Bartlett Mayor Norris Ivy made the announcement Wednesday. Meanwhile, Bell County Commissioners Court Judge Jon Burrows declared the town of 2,000 people located about 50 miles northeast of Austin to be in a local state of emergency.
Both the main pump for the ground storage tank and the city's backup water well failed.
The city was making available bottled water and non-potable water available.
The Obama administration is expected to announce final details of “Waters of the United States” rule this week that could impact any property owner with water or a ditch that occasionally fills with water on their land. Moreover, the regulation could even conflict with two Supreme Court rulings.
Private property advocates, such as ranchers and farmers, fear the new rule could encompass nearly any type of water on a property.
“Property owners will not be able to engage in activities they should be able to engage in,” Daren Bakst, a research fellow in agriculture policy at the conservative Heritage Foundation, told TheBlaze. “This will be devastating to private property rights. It’s an attack on private property rights. Most people don’t have the money to pay for all these permits.”
“Protection for about 60 percent of the nation’s streams and millions of acres of wetlands has been confusing and complex as the result of Supreme Court decisions in 2001 and 2006,” they wrote.
The post continued, “We’re limiting protection to ditches that function like tributaries and can carry pollution downstream—like those constructed out of streams. Our proposal talked about upland ditches, and we got feedback that the word “upland” was confusing, so we’ll approach ditches from another angle.”
The two agencies say the rule will accommodate the high court rulings, while critics say it clearly expands beyond the court’s limits on the government.
“It’s not uncommon for an agency to broadly interpret language, but based on court precedent, it is going way too far in exceeding what it is allowed to do,” Bakst said.
The proposed rule would regulate “tributaries,” or depressions in land that can fill up with water. Currently such water cannot be regulated, but the EPA contends that such bodies of water – even if temporary – can run off and send pollution into larger bodies of water.
With the hot summer months quickly approaching, many
in San Antonio are bracing for what has become almost as much of a rite of
summer as a Spurs Playoff run – mandatory water restrictions.While not quite as depressing as seeing
a veteran opponent drain that miracle shot to end our season, watching thirsty landscapes
wither under the Texas sun is pretty grim.But, we are San Antonians not alone.
Scarcity of water has become a global issue that
frequently makes headlines. Crises created by water shortages impact nearly
every aspect of human life in the developed world: the 2016 Olympic games in Rio de Janeiro, daily life in Sao
Paulo, American Heartland crop yields, Taiwanese
factories, development within the San Antonio-Austin corridor, and the very existence
of Medina Lake are all facing serious and immediate threats posed by water
scarcity.There are innumerable
other examples, not to mention water-related poverty and illness in the
One very effective tool employed by water providers in
combating such shortages is the promotion of conservation. In essence,
conservation – by reducing or eliminating waste - increases water availability
without physically supplementing supply. That is, conservation encourages the
“highest and best use” of water by stimulating responsible consumption and
discouraging excessive, inefficient and/or irresponsible use.
Conservation programs have many components, including
education, management practices, auditing and reporting, etc. But, an
unfortunate reality is that many consumers (of all things and not just water)
take notice only when you “hit ‘em in the pocketbook.” Thus, tiered
“conservation rates” where customers who consume larger quantities of water are
charged higher per-unit costs than those with less consumption are typical
components of water conservation plans across the country, including in Texas.
One California lawsuit threatens to upend this
practice, and the trial court has struck a significant blow to water utilities’
ability to use financial policies to reduce consumption and promote
In August 2012, an association of taxpayers and residents filed suit against the City of San Juan Capistrano, California
seeking to prohibit that City from charging water rates that exceeded the City’s
actual costs of providing water to its customers. In particular, the Plaintiffs
sought (among other relief) to set-aside a tiered water rate structure that the
City had employed since 1991 in an effort to promote conservation.
The Orange County Superior Courtruled against theCity, and ordered it to abandon
its rate structure and base all water rates on the cost of providing service.The City has appealed, and the
appellate court’s ruling is due any day now.If the trial court’s opinion is upheld, the ability of
California water utilities to promote conservation through the prices they
charge will be significantly impacted.
Notably, the California case turns on interpretation
of a state-specific proposition. However, the decision in that suit could
create a nationwide ripple effect as water utility customers and their lawyers
evaluate legal vulnerabilities of other conservation plans where pricing is
used to advance conservation.
According to a report by the KSAT Defenders, a water treatment plant recently constructed near the San Antonio zoo have really cleaned up water in the San Antonio River near the zoo. The Riverwalk is a different story though...
San Antonio is booming. While growth is great, all the new construction comes with a price. Someone has to pay for infrastructure like water lines, and it's up to city council to decide who should pay the fees. While they have the final say, the council is first advised by a committee of experts. These same experts often finance their campaigns. News 4 San Antonio Trouble Shooter Stacey Cameron examines this sphere of influence that cannot only control how you use your water, but what you pay. In many cases, City Council will pass fees to help offset the costs of some projects. But as it turns out these fees can also impact how much you pay for water. And even though the Council has the final say on how much these fees cost, they are often first advised by a committee of experts. One such committee is the Capital Improvements Advisory Committee or CIAC for short. CIAC is an 11 member panel that in part advises City Hall on the best way to supply the city with water. "We really do our best to appoint people to the board that are qualified and interested in serving in that role," said Councilwoman Shirley Gonzales. Like every member of City Council plus the Mayor, Gonzales appoints one person to serve on CIAC and she recently put her person in place. "He's a small business owner," said Gonzales. "He has a small engineering architecture firm in district five." But that appointment is far from unique, and in fact it's a problem. That is because City Code says only five CIAC appointees should hold jobs in real estate, development or building trades and the remainder should represent the community as a whole. That balance ensures that developers do not get off easy while water customers pay higher rates.
But as it turns out Amy Hardbeger is the only member of CIAC not working in one of those industries. Hardberger is a geoscientist, turned water conservation attorney who now teaches law at St. Mary's University School of Law. She thinks water is the biggest issue for the nation's seventh largest city. "Where we get our water, how we pay for that water and who pays for that water has to be one of the most important conversations we need to be having," said Hardberger. About a year ago Hardberger landed a spot on CIAC when former Mayor Julian Castro appointed her to the post. Speaking of the work CIAC does and how it has the potential to affect water rates in San Antonio, Hardberger says the committee should have greater representation outside the real estate, development and building industries. "It is really talking about who is going to pay for new supply and that conversation needs to be shared," says Hardberger. So why isn't CIAC a more diverse body? Well money maybe the answer. That is because campaign finance records show real estate and development interests flood council elections with cash.
But Councilman Ron Nirenberg says that tide of campaign contributions isn't buying influence at city hall. "I think they're always be, speculation of course," said Nirenberg. "But the proof is in the pudding with regard to how we vote." To make his case, Councilman Nirenberg points to the recent debate over impact fees. In short, impact fees are a one-time charge developers pay to hook up to public water. When it came time to raise that fee this spring every member of the developer-heavy CIAC, save Amy Hardberger, advised City Hall to keep the fee low.
But City Council ignored CIAC and passed a huge hike to impact fees developers will soon pay. "We have to make sure we have independent voices on council. That we aren't beholden to a particular perspective other than the best interests of the city." Does that mean the real estate, development and building community is losing influence on CIAC? Probably not, because like Gonzalez, Nirenberg is set to make an appointment to the committee and he does not seem prepared to deviate from the course set out by his predecessors on Council. "I will be looking for someone who has a variety and broad perspective within the real estate community but also understands water in general," said Nirenberg. Three other Council Districts also have open CIAC appointments to fill. One is actually District Two, new San Antonio Mayor Ivy Taylor's former district. When reached by News4 last week, then Councilwoman Taylor said she was too busy to speak. Councilman Ray Saldana of District Four and Councilman Chris Medina of District Seven also have open spots on the committee, however neither council member returned messages asking for comment.
This story, while sad, is not surprising. Earlier this year I had occasion to travel to Sausalito, California, I observed signs in many restaurants stating that they were using paper plates and only serving water upon request because of the water shortage. Population explosion and drought are a dangerous combination. New water alternatives must be planned for now!