groundwater and the future of texas water. charles porter presentation.pdfcity of del rio, appellant...

Groundwater and the Future of

Texas Water:

Recreational Organizations in an Age of

Water Scarcity

By: Charles Porter, Assistant Professor of History

St. Edward’s University(All Rights Reserved)

[email protected]

www.charlesporter.comCopyright Charles R. Porter, Jr. - ALL RIGHTS

RESERVED

mailto:[email protected]

http://www.charlesporter.com/

The Big Picture on Texas Water

• We focus too much on supply and sources.

• We focus too little on use of water and “used” water.• We focus too little on conservation of water.

• Water is simply too cheap at the tap.

• Water may force us to choose between urban and rural lifestyles

• Without water, the local ad valorem tax base declines with

significant consequences.

• Municipal and other government credit ratings impacted by water

availability.

• There is never been such a thing as normal rainfall in Texas – norm

is drought or “soon-to-be-back-in-drought.”

Texas is growing and will continue to grow. But without well-thought out water policy, will our potential be limited.

Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED

“Water doesn’t run downhill . . . it runs towards money.”

Dr. David Weber, SMU, 1976

“. . . but at the core, the fundamental issue is that in our state there simply is not enough firm-yield water to support the existing population and growth that is already occurring.”

Kirk Holland, P.G., General Manager,Barton Springs Edwards Aquifer Conservation District


Droughts and Deluges in San Antonio

1700 - 1900


A History of the Early Development of Texas Water Rights


The Questions for Our Time

Who Owns Water? Whose Rights Should Prevail?


To Determine Ownership Look at:

Three Geological Containers

Natural Surface Water

Diffused Surface Water

Groundwater


Keys to Understanding

Texas Water Law

Classifications of water into 3 “geological containers”

(Remember: Irrigation uses 60 - 70% of our

water)


Glossary

• Acre-foot – volume of water needed to cover 1 acre to a

depth of 1 foot = 325,851 gallons.

• Appropriative right – the right to impound, divert, store,

take, or use a specific amount of state water acquired by

law. Appropriator – person making beneficial lawful

use under the statutes.

• Appurtenant – belonging to, appended to or annexed to.

• Certificate of Adjudication – evidence of water right.

• Correlative right – rights that are co-equal, relate to one

another, so that one owner cannot take more than their

share.

• Conjunctive – joined together; combined (like all water)


Glossary 2

Prior Appropriation – doctrine of surface

water usage in Texas. First in time, is first

in right.

Riparian - of or relating to or living or

located on the bank or a watercourse (as a

river or stream) or sometimes a lake; one

that lives or has property on the bank of a

river.Copyright Charles R. Porter, Jr. - ALL RIGHTS

RESERVED

Texas Water Law is Linked to Sources and

Uses of Water • Use 1 – Irrigation Source 1 - Surface Water

• Use 2 - Irrigation Source 2 – Groundwater

• Use 3 – Household/Livestock Source 3 – Any source

• Use 4 – Industrial Source 4 – Surface Water

• Use 5 - Industrial Source 5 – Groundwater

Basis of most past disputes was irrigation use of surface water – generally resolved by the Water Adjudication Act of 1967.

Modern dispute centers on irrigation use of groundwater. All states but Texas regulate groundwater use and no others have the “rule of capture” to block their regulation efforts.

The conflict we will face in the future is the tension between urban and rural use of groundwater. The cities are now and will continue to demand and fight for groundwater to the detriment of rural owners.


1. Natural Surface Water TCEQ, River Authorities, Watermasters

All natural surface water found in watercourses is owned by the state - held in trust for the people.

It includes the ordinary flow, underflow and tides of every flowing natural watercourse (has as definite bed and banks) in the state. Storm water and floodwater found in natural lakes, rivers, and streams - also state water.

It is allocated to the most senior rights during scarcity – prior appropriation.


2. Diffused Surface WaterTCEQ

Water that does not flow in a defined watercourse, but flows across the surface of the land in a variant and without a pattern is termed diffused surface water.

Generally, rain runoff, water left in upland areas after a flood recedes may also be diffused surface water. Texas courts have ruled - diffused surface water belongs to the landowner until it enters a natural watercourse – then it becomes state water. Tanks, springs that do not create streams are private water.


3. GroundwaterGroundwater Conservation Districts if One Exists

The water that is beneath the land surface and fills the pore spaces of rock and soil material and that supplies wells and springs.

Groundwater is private property per SB 332, 2011 session and Day McDaniel ruling Feb 24, 2012.

Not all areas of Texas have a GCD!Copyright Charles R. Porter, Jr. - ALL RIGHTS

RESERVED

1900 – 1979 Drought in Texas


Fort Stockton 1954

The Unintended Consequences of

Ranchers and Drought


Observations on Comanche Springs

The best case in Texas to demonstrate:

1. the conjunctive aspects of all water sources;

2. the unintended consequences of the rule of capture;

and,

3. the age-old dilemma of how to balance the pursuit of individual interests with the “good” of the community.


What does water ignore?

Political Boundaries.


Groundwater Conservation DistrictsThe preferred method of groundwater management per Legislature.

1949 Legislature - 1951 first formed -

High Plains Underground Water

Conservation District No. 1.

99 GCD’s cover 173 counties – of 254 counties – 68%.

Areas without GCDs face a problem – the rule of

capture.

Many GCDs are woefully underfunded


Groundwater Conservation Districts

1949 Authorized by the Legislature

1951 First – High Plains Underground Water Conservation

District No. 1

99 now – two awaiting confirmation by voters

Some areas do not have GCDs – a real problem

PGMAs can create GCDs via TCEQ


Modeled available groundwater:

the amount of water that may be permitted by a district for beneficial use in accordance with the desired future condition of the aquifer

Total Pumping – Estimated Exempt Use


Exempt Use

• Exempt uses of the aquifer include:

– rural domestic

– livestock

– oil and gas exploration

– any other uses specified in the rules or enabling legislation of a district

• TWDB estimates include only domestic and livestock exempt use through 2060

– Total exempt use for these categories based on current exempt estimates and projected rural population changes

– Exempt use divided into individual aquifers based on the percent of domestic and livestock wells completed into each aquifer in each county

• Districts may submit alternative estimates of exempt use for consideration


Del Rio 2009

Mistake? Test? or Deliberate Disregard

for Rights and Deeds


The Turbid but Crystal Clear Water

of San Felipe Springs


Del Rio Case

City of Del Rio v. Samuel Colt Hamilton Trust

Must it be “captured” before it can be owned? If groundwater is a “vested” property right, then why is it not taxed like minerals?


City of Del Rio, Appellant v. Clayton Sam Colt Hamilton Trust, Appellee, Court of Appeals of Texas, Fourth District, San Antonio:

• Decided in favor of the Trust at both the District and the Court of Appeals

• Texas Supreme Court – Petition for Review Denied on September 25, 2009, rehearing denied December 11, 2009, file sent to storage December 31, 2009

“The relevant facts have been stipulated to by both parties.. . . In 1997, the Trust sold 15 acres from the ranch’swestern border to the City of Del Rio . . . GrantorRESERVES unto Grantor, its successors, heirs andassigns forever all water rights associated with saidtract, however, Grantor may not use any portion of thesurface of said tract for exploring, drilling or producingsuch water.”

Karen Angelini, Justice


$850,000 of Water Well in 2000


Plus a Mile of New Water Line


First and foremost there is the real possibility that land could be purchased or leased or extracted for water that would be transported out of the region without any restrictions on the pumping of the aquifers. . . If this occurred, and the Rule of Capture still applied as it does today, it is entirely possible that the San Felipe Springs’ flows could be reduced by at east two-thirds of their current quantity.

Tom Knickerbocker, AICP May 11, 2009

[The Del Rio area - Val Verde and Terrell Counties - have no Groundwater

Conservation District for protection and fair allocation of groundwater resources.]


Past - Recurring

The Bragg v. Edwards Aquifer

Authority Case


THOMAS F.LEERetired District Judge

May 7, 2010

Re: Glenn and JoLynn Bragg v. Edwards Aquifer Authority;Cause No. 06-11-18170-CV in the 38th District Court ofMedina County, Texas


A “cat” case –it’s bound to be out of its nine lives.

Glenn and Jo Lynn Bragg v. EAA

Enter Retired District Judge Thomas Lee, Hondo, Texas – May 7, 2010

finding –

I believe that this is as much about the taking away of a lifestyle as it is about the decrease in the value of land. The Braggs invested their lives, labor and money in a good family farm . . . That life plan has been undermined, and their investment severely devalued.

Compensation: $134,918.40 - difference between dry land farm and irrigated farm PLUS $5,500 an acre-foot for the water which was taken or $597,575 for a grand total of $732,493.40.


A Never Ending Tale . . . NeverBragg v. EAA 2010 or “Pitch ‘til you win”

(if anything, they’re persistent)

Judge Lee’s recent ruling – shocking consequences if not

overturned.

Market Value Declarations:

• Irrigated farm v. non-irrigated $3,200 per acre premium

• Water at $5,500 per acre-foot

• Most recent pleadings ask for $7,500 per acre-foot

Above all else – his use of language – it should scare everyone, including landowners.Copyright Charles R. Porter, Jr. - ALL RIGHTS

RESERVED

Consequences TBD

Edward’s Aquifer Authority v. Burrell Day and Joseph McDaniel

Texas Supreme Court Case 08-0964


How much groundwater

regulation is too much?


Von Ormy, TexasHome of the Jalapeno Parade and Festival

Day and McDaniel request 700 acre-feet of water per year;

permit issued for 14 acre-feet per year by EAA . . .

Big Questions - Maybe for Our Time in Texas:

Is groundwater not in production a “vested” property right?

Did this act of the EAA constitute a “taking” therefore requiring just compensation to Day and McDaniel?


McDaniel and Day v. Edwards Aquifer Authority

• As so often happens, a case with a confusing and “bad” set of facts• Request for 700 acre-feet of water per year by McDaniel and Day

• Permit issued for 14 acre-feet per year by EAA

• Main Question(s)– Is groundwater not in production a “vested” property right? Did this act of EAA constitute a “taking” therefore requiring just compensation to McDaniel and Day?

• Outlying Question – As the water from the well flowed into a tank

and then overflowed from the tank, did it flow in a “channel” therefore changing the nature of its ownership to state-owned

water?

• Porter’s Real Concern – How does a landowner prove, in a court of

law, “historical use” of water from an irrigation well or any other?

Case pending in Texas Supreme Court . . .


Let’s apply Judge Lee’s finding to Day McDaniel:

$3,200 per acre X appx. 382 acres = $1,222,400(irrigated farm versus dryland farm)

$5,500 per acre-foot on 686 acre-feet = $3,773,000(value of an acre-foot of water)

($7,500 per a-ft = $5,145,000) + $1,222,400 = $6,367,400.

Grand Total Compensation ?

$4,995,400 or $13,076/acreCopyright Charles R. Porter, Jr. - ALL RIGHTS

RESERVED

El Paso Water Utilities Public Service Board

The value of El Paso’s held interests in groundwater rights is $100,000,000. Do they own the groundwater rights in-place?

Amicus brief (letter) filed Feb 11, 2010:

“Groundwater in-place is a recognized, severable estate in real

property, even when not in production. [Del Rio case seems, yet

again, to confirm this statement.]

The estate in groundwater, like oil and gas, is subject to reasonable

police power regulations of certain authorized agencies.

Reasonable regulation of subterranean estates in real property does not

in itself diminish the nature, value, or rights of those estates or give

right to takings liability.”


50 Acre-foot tanks (387,918 bbl) at $ .42 to $ .80/bbl =

$162,926 to $310,334


Urban or Rural ways of life?

Which do we value the most?


Any Good News, Professor Porter?

Desalination plant in

El Paso is successful –27.5 millions/day

Texas has vast

brackish groundwater

resources plus the

Gulf of Mexico


Here Come the Feds!

• EPA

• Fish and

Wildlife

• US/Mexico

Treaties

• Endangered

Species Act

• Federal Court

Rulings


Key Links

• www.tceq.state.tx.us/Texas Commission on Environmental Quality – surface

water regulator; information on groundwater

• www.twdb.state.tx.us/Texas Water Development Board – information on

groundwater; 2012 State Water Plan

• www.texasgroundwater.org/Texas Alliance of Groundwater Districts - trade

association of GCD’s – information on member

districts


http://www.tceq.state.tx.us/

http://www.twdb.state.tx.us/

http://www.texasgroundwater.org/

New Publications - Porter

Sharing the Common Pool: Water Rights in the Everyday Lives of Texans –

Texas A & M University Press, Summer, 2013

“The History of W. A. East v. Houston and Texas Central Railway Company, 1904: Establishment of the Rule of

Capture in Texas Water Law or ‘He Who Has the Biggest Pump Gets the Water’” East Texas Historical Journal 50th

Anniversary Edition, Vol. 2, 2012

East Texas Historical Association, PO Box 6223

Stephen F. Austin State University, Nacogdoches, TX 75962-

6223 - $7.95 per copy


End

Thank You


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