State aims to make groundwater rules more uniform

Different districts have different sensibilities.

With the population of Central Texas booming, water has become the chief maker or breaker of development. With just about every drop of river water already spoken for, suppliers, especially in Central Texas, are turning to underground water in counties to the east as the next big source.

But they face a problem because groundwater districts, set up as individual fiefdoms meant to reflect local histories and philosophies about water and land use, have different permitting rules and sensibilities.

In the Legislature, at the Texas Water Development Board and in the courts, a struggle is under way to make the rules more uniform from one district to another and to come up with aquifer pumping caps, so the state can do better water planning over the next half-century.

The Lost Pines district, for example, which includes Lee and fast-growing Bastrop counties to the east, limits pumping permits to five years, providing little assurance for cities or water purveyors who want to ship water out of the district. In its own literature, the district names San Antonio and water purveyors under the heading "Threats to Our Aquifer." The neighboring Post Oak Savannah Groundwater Conservation District, which expects little population growth in coming decades, allows pumping permits in Milam and Burleson counties to run as long as 40 years.

"My board is in favor of landowners' property rights, in favor of the efficient use of the aquifer and in favor of protecting it," said Gary Westbrook, general manager of Post Oak. "Those things almost always contradict each other, and we're always searching for middle ground."

The districts are proliferating: Today there are 98 groundwater districts, up from 51 in 1995, according to the Texas Water Development Board, the state agency charged with water planning. Their boards have broad-ranging powers derived from the Legislature, including the authority to set rates for pumping permits, to set pumping limits and well spacing and, typically, to levy taxes. What they can't do is set fees or taxes beyond limits prescribed by the Legislature, and they can't arbitrarily deny permits.

"People have become a lot more concerned (about protecting) their groundwater and what's going to happen to it," said Dean Robbins, the assistant general manager with the Texas Water Conservation Association.

About 60 percent of the state's water supply comes from groundwater and about 40 percent from surface sources such as lakes and rivers, according to Robert Mace, who runs the water science and conservation group at the Texas Water Development Board .

The districts are to make projections to the state about the amount of water available into the future in the aquifers beneath them, but some disagree even on the amount of water in the bucket or how to manage its depletion. At a mid-February hearing at the state Water Development Board, for example, several Panhandle districts debated how their groundwater should be doled out. Looming over the question was an ambitious water pumping and transport project proposed by investor T. Boone Pickens that could send billions of gallons to cities including Dallas.

The regional groundwater that Lost Pines and Post Oak manage — along with a trio of other districts — faces its own crunch, as permitted supplies already outstrip the available groundwater, by some estimates.

Not all of the permitted amount is actually used. Lost Pines, for instance, has permits totaling roughly 80,000 acre-feet, but only about 30,000 acre-feet was actually pumped last year, Cooper said. (An acre-foot is roughly equal to the amount of water three Austin households use in a year.)

But the crunch leaves Austin-based water purveyors, which are hoping to land big permits to ship water to the Texas 130 and Interstate 35 corridors, competing with local water suppliers, such as Bastrop-based Aqua Water Supply Corp.

Lost Pines faces new permit applications from End-Op, a water supply group led by former Williamson County Commissioner Frankie Limmer, for about 50 million gallons of water a day, and from Aqua, which serves about 50,000 people and expects to exceed its current annual permitted amount by 2025. But Lost Pines is not sure it has the water and recently placed a moratorium on some large well permits.

Meanwhile, some districts facing less competition for water but drawing from the same bucket can earn significant income by awarding permits. Post Oak, for example, makes permittees pay for water whether they draw it or not. Currently, the district charges 1 cent for every thousand gallons of permitted production and 4 cents per thousand gallons exported. Last year Austin-based Blue Water Systems won a permit to draw and export 23 billion gallons of water a year, meaning it pays the nonprofit district about $1 million a year, which it uses for research and staffing.

Most districts try to balance water demand inside and outside their boundaries, leaning on a still-evolving science of hydrology. They can also run afoul of rules. Just this week , the state auditor's office announced a follow-up report on the Kinney County Groundwater Conservation District finding "significant financial and operational deficiencies."

According to the audit, the Kinney County district did not issue new permits in a timely manner, ensure that statutorily required annual audits were conducted, monitor water usage for all permitted wells, ensure that all board members disclosed potential conflicts of interest or consistently retain minutes of the board's public meetings.

On Feb. 12, Texas House Speaker Joe Straus announced the appointment of a House Select Committee on Special Purpose Districts aimed at improving accountability and transparency, particularly with focus on water-related districts. Last year, Straus and Lt. Gov. David Dewhurst asked lawmakers to tackle groundwater issues before the next session of the Legislature.

"What we've got is a mixture of different districts created around the state, which are trying to provide some form of management of the groundwater of their particular aquifers in their areas," said state Rep. Doug Miller, R-New Braunfels, who sits on the House Natural Resources Committee. "For the most part, the Legislature has said it's a local issue, so address it on a local basis. The problem is aquifers don't have political boundaries. What happens in Hays County to the Trinity Aquifer may or may not affect the Trinity under Blanco, Comal and Travis counties."

But coming up with a pumping cap for aquifers is already facing pushback. Groundwater in Texas, unlike the water found in lakes, rivers and streams, is widely considered private property, akin to oil and minerals. (In some Western states both groundwater and surface water belong to the state.)

The pumping cap process is meant to clarify how much water is available and who will get it, but it's "doing the exact opposite," said Russ Johnson, a water lawyer representing the Texas and Southwestern Cattle Raisers Association and Texas Wildlife Association. He said a cap on pumping could rob landowners of their water-pumping rights.

With such a variety of interests, action might be more likely to take place in the courts than at the Capitol, where the desire to change the powers of groundwater districts is tempered by the wish not to offend their local political support — the boards of most districts are elected or appointed by county judges. On Feb. 17, in a possible prelude to more cases, the Texas Supreme Court heard arguments that pit landowners against the Edwards Aquifer Authority.

The authority established a pumping cap in the 1990s and then divvied up the available water through a permit process to pumpers in the district. Landowners from Bexar County are arguing that they deserve a bigger permit and that they should be paid for the water they were not allowed to take. Landowners' associations, such as the Texas Wildlife Association, have filed legal briefs sympathetic to the landowners.

"In the Edwards, nobody got what they wanted because there was not enough water to go around," said Darcy Frownfelter, general counsel for the Edwards Aquifer Authority. "If everybody can file a claim for water they want when the authority can't give it to them, you can imagine that amount gets pretty big, pretty quick."

Miller, the state representative, said, "If that case doesn't go in support of the EAA, it could totally change the future of that agency and authority, and cost taxpayers of Texas literally hundreds of millions of dollars."

In any case, the Legislature seems destined to wade into the issue this year.

"Our current law is not robust enough to handle the complicated situations that are being presented to these groundwater districts," said Michael Booth, an Austin water attorney. "I think the mood is there, and the will, to have incremental changes that put centralized controls on groundwater districts. The trend is going to be of state control of some fashion."

Miller said changes to groundwater law could be at least a decade away.

By Asher Price AMERICAN-STATESMAN STAFF