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Rule of fracture

Texas Supremes may finally overturn century of ‘occult’ water law in Texas … (yeah, right)

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"Twenty-three aquifers, more than 90 groundwater districts, and a lawsuit that could scramble them all."

 

It’s called the Rule of Capture, or more directly, the Rule of the Biggest Pump. And in a state where the moisture index plummets from plumb soggy to high desert within the 830 highway miles linking Beaumont to El Paso, it’s become one enormous pain in the ass.

At least it did for the state’s smaller pumpers as Texas urbanized and industrialized over the last century and heavy production at one end of Main Street started emptying wells down the road. Rule of Capture has meant, for example, that an international water-bottling company like Nestle’s Ozarka could dry out a bevy of farmers in East Texas, as it did a decade ago, so long as they weren’t mean-spirited about it. (Texas courts can’t abide “malicious intent” when it comes to pumping neighbors dry — one of the few exceptions to our unique form of Wild West water recklessness.)

Of course, Texas, like the rest of the American West — and the rest of the world, for that matter — is fast colliding with a future of liquid uncertainty. While the state is expected to double in size by absorbing another 20 million residents by 2060, we’re going to have to get by with 22 percent less of the wet stuff, according to the Texas Water Development Board’s 2007 State Water Plan.

And yet, Texas being Texas, traditions like Rule of Capture don’t drain away so easily. For many, the right to unlimited access to the water below one’s feet is as fundamental as private property itself. “It’s been true for more than 100 years,” San Antonio attorney Tom Joseph told the nine Republican members of the Texas Supreme Court earlier this year, arguing a case that represents the court’s first chance to redefine Rule of Capture since Ozarka washed up on their docket in the ’90s. “It’s been true even when the Ten Commandments were given us because it says, ‘Thou Shalt Not Steal.’ Well, if you couldn’t own property, it wouldn’t make any difference if you could steal.”

The Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel, aka “the Day case,” involves a couple of local oat and peanut farmers whom the Edwards Aquifer Authority refused a request to pump 1.3 million gallons per day on a parcel that had historically been used to graze cattle. It’s a muddled case that also seeks to determine whether subsurface groundwater surfacing though a natural spring, passed down a creek, and stored in a lake should still be defined as groundwater and thus the property of the landowner who controls the spring. In a way, the farmers’ argument takes Rule of Capture a step beyond historic practice: that the water beneath the land can be “owned in place” without going through the trouble of capturing it with a pump. Joseph calls it “absolute ownership.” Prime parsing for water wonks. The reason the case has the attention of growers, lawyers, academics, and politicians across the state is that the Day case challenges the Authority’s very right to regulate the Edwards Aquifer at all, making it the first opportunity since Ozarka for the Court to finally rule one way or the other on the historic, fundamental interpretation of Rule of Capture.

Historically, Rule of Capture has allowed unlimited pumping on one’s land regardless of the consequences. A landowner owned whatever water they were able to bring to the surface and put to “beneficial” use, like fattening plastic water bottles or flooding fields of rice. This strict interpretation, an anomaly among Western states, was rolled back in the Greater San Antonio area by the Texas Legislature in 1993 after a court challenge over the Endangered Species Act. Thus was the Edwards Aquifer Authority born and tasked with regulating the withdrawal of groundwater across eight counties from what is considered one of the state’s most ecologically sensitive aquifers. Permits were distributed to pumpers based on studies of historic use and pumping caps were put in place. Widely regarded as the state’s only true groundwater district, due to its significant regulatory and enforcement powers, the Authority has, as expected, also been forced to defend itself from numerous legal challenges. While local district courts regularly rule against the Authority, the cases have all been shored up in the EAA’s favor at the Appeals Court level or before the Supremes.

“This is our fourth time before the Supreme Court,” EAA Board Chairman Luana Buckner told the Current. “That’s just unheard of.” And yet, she said, the Day case is the most important of them all. An unfavorable ruling now would lead to “a nightmare of litigation” that could easily spill over to affect other groundwater districts across the state. Since San Antonio relies almost solely on the Edwards Aquifer for its residential and commercial water supplies our entire water supply would suddenly be wide open to whatever economic force had the largest pumps and deepest commitment to sucking. For a glimpse of a totally unfettered free-market approach to water, one could travel to Chile, where market forces have diverted much of that nation’s liquid wealth to the mining interests at great expense to providing safe, affordable water to its citizens. “So many people are watching this case and have a great interest in the outcome because the Court does have the opportunity to clarify what they mean by Rule of Capture, and does that really exist.” Buckner said. “They’ve said it’s a legislative function, that the Legislature should answer it. Of course, the Legislature hasn’t been willing to do that, either.”

While the Texas Attorney General is arguing on behalf of the Authority’s right to regulate, both the State Comptroller and Texas Department of Agriculture have filed briefs in support of the peanut farmers, prompting Joseph to ask during oral arguments on February 17: “Who speaks for the state of Texas?”

One apparent ally Joseph has found is elected Justice Harriet O’Neill, who asked repeatedly during oral arguments why water is treated any differently under the law than oil and gas, before wondering aloud in her own folksy way why Authority attorney Pamela Baron felt that treating water as a fundamental property right would “wreck the plan of salvation.”

While the Lege has been unwilling to revoke Rule of Capture, it has been forced by increasing pressure on the state’s water resources to attempt to temper its reach. Under the leadership of former Lt. Governor Bob Bullock in 1997, the Lege gave birth to Senate Bill 1, making locally controlled groundwater districts the “preferred method” of managing the state’s water resources and requiring the Texas Water Development Board to come up with a statewide plan to maintain water quality and quantity. And while groundwater districts trump Rule of Capture, to date fewer than half of Texas’ 254 counties have such districts. Even where they exist, enforcement powers are optional.

Most of the wells (household, livestock) also remain exempt from regulation, said Dave Collins, president of the Blanco County nonprofit Preserve Our Water. “By and large, with a few notable exceptions, they have proven to be a really poor tool for managing groundwater. Money’s a big part of the problem,” he said. The Headwaters Groundwater Conservation District in Kerr County, he said, “dwarfs all the other budgets around here. Most of the districts have no money at all. They have no money for research. They have no money to pay qualified staff. … They don’t have the resources to do anything.”

A case in point is the Hayes-Trinity Groundwater District in Hayes County, where the only fees that can be levied to run the operation are one-time $300 registration fees for new wells drilled or new tie-ins to existing groundwater supply systems. With the recent economic downturn, those permits are coming few and far between. “The enabling legislation for that district was intentionally hobbled by … [Texas Representative] Rick Green. His belief was if we use up all the water, God will just put more down there for us, and so he prohibited them from having any tax revenue at all,” Collins said.

Despite these challenges, the highest court in the state has been unwilling to tackle Rule of Capture to this day. “That’s where the Supreme Court, I think, has wavered,” said Gabriel Eckstein, director of the Center for Water Law and Policy at Texas Tech University. “They have never fully answered what exactly is the Rule of Capture. What right do you get?” An unfettered Rule of Capture, as seemingly advocated by Justice O’Neill, gurgles, “every drop you can.” And yet the differences between petroleum products and water are fairly obvious. On the one hand, water is a life-sustaining resource, Baron replied. It is also a renewable, although not infinite, resource. And it’s one that is typically in constant motion.

While the law governing rivers and streams in the state take their cue from Spanish law and are owned by the state with permits distributed on a first-come, first-served basis, groundwater rules are rooted in English Common Law. Years ago, it was believed that, like the movement of game species such as deer and wild boar across the fields, the hidden movements of subterranean waters could not be understood or predicted and therefore could not be regulated.

Groundwater was like a roaming gobbler, wild like the elk and red wolf that used to shuffle across our state. Unseen at night, they crossed fences, bred in obscuring prairie grass, and appeared again as if from nowhere. If you should bag that buck shaking in the elderberry before I was able to tamp down my shot and flush him into my field, dear brethren, the meat be yours. Water was such a mystery that when the Texas Central Railroad drilled deep for a source of water for its locomotives, sucking up a neighbor’s well in the process, the Texas Supreme Court ruled in 1904 the railroad was not culpable, quoting from an even earlier case about groundwater that “the causes which govern and direct their movements, are so secret, occult and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty.”

Today, our understanding of groundwater is vastly improved, and critics of a pure property-rights interpretation easy to find. Ronald Kaiser, professor of water law at Texas A&M, said a strict property-rights interpretation would be “the most disturbing” decision the Supreme Court could make. “That would have all kinds of implications not only for the EAA, but for all of the groundwater districts across the state,” he said. “It would raise questions: If this is a vested right, then how much do these regulations impact that right? In some ways it would become the lawyers’ full-employment act.”

It would also represent a full-employment act for hydrologists, as property owners across San Antonio and the state scrambled to determine what percentage of our underground rivers and lakes are their personal property. “If we define it in a way which is true property rights, I really think it’s going to create tremendous, tremendous problems,” Eckstein said. “What exactly is your water? Because it’s flowing, right now it’s yours. It’s yours, oh … now it’s your neighbor’s.”

Of course, at the other end of the spectrum, the Supremes could at last acknowledge that the right of landowner possession is limited by regulatory caveats such as those mandated by the Texas Legislature in the creation of the Edwards Aquifer Authority and teams of other water districts. But fears are being expressed that the all-Republican Court’s five Perry-appointed judges could be feeling political pressure to take a defining anti-regulatory stance to burnish Perry’s rugged-individual political glaze. “What I’m hearing is that — surprise, surprise — the court is being responsive to, at least paying ear service to, the political pressure to recognize property rights,” said Enrique Valdivia, EAA board member. “Come hell or high water that, you know, policy is always going to fall on the side of property rights.”

Texas is just beginning to recover from one of the worst droughts on record, and yet climate forecasts related to global warming are expected to up average temperatures by seven degrees by the end of the century, according to researchers in the A&M university system. But even without factoring in climate change, an analysis of historic cycles suggests we’re in for rough weather.

After John Wesley Powell finished charting a large swath of the American West during his ballsy boat ride down the Colorado River (the big one), he returned to Washington, D.C., with an idea of how westward expansion should be carried out. First, the water resources of the West, limited as they were, should be thoroughly mapped to prepare the would-be settlers. Of course, that would take time and much of the land would probably to be written off as uninhabitable — to the detriment of the railroads and speculators within the U.S. Department of Interior. So, celebrity explorer Powell, head of the newly created U.S. Geological Survey, was run out of office and the tide of melanin-impoverished immigrants was turned out West. Of course, Powell’s predictions “proved absolutely true, because a lot of people did not make it,” said Pat Talbott, president of the board for the John Wesley Powell Memorial Museum in Page, Arizona. “If there was water, they made it; if there was no water, it was rough going.” But as desolate as the West appeared to Powell at the time, it was a much wetter world compared to the one we’re moving into. Thanks to the records maintained in ice cores and tree rings, scientists now know the world Powell experienced was undergoing an episodic “wet” cycle, and that the future will undoubtedly be hotter and drier. “Whether you believe if it’s manmade is irrelevant,” Eckstein said. “Trends clearly suggest a warming. It’s getting warmer, it’s getting drier. Trends suggest it’s going to continue.” In short, the climate of the American West is getting back to normal. And that new normal means the next serious drought may bring water shortages to hundreds of Texas cities, Eckstein said: “Climate change, big drought, whatever you want to call it.”

“What will Texas with 40 million people look like?” Professor Kaiser asks. “Visualize a city from Waco to San Antonio three miles wide on both sides of [Interstate] 35. That’s where a lot of people are moving. Surface-water resources there are limited or fully spoken for — the Colorado River, the Brazos River, the Guadalupe, and the Blanco rivers — and so there’s tremendous pressure on cities,” he said.

For a fuller portrait you have to next cook the corridor by a few extra degrees for a decade or two and add a touch of drought. Finally, factor in a Supreme gift of a return to a no-holds-barred Rule of Capture system offering no way to restrain the Ozarkas of the world. There aren’t many better ways to spell disaster than that.

Elements of international law, Eckstein’s specialty, include considerations for the rights of future generations, concerns not reflect in the state codex. “What responsibility do we have right now to make sure they actually can enjoy water?” he asked. “It’s not really part of our legal tradition here in the U.S., but there’s at least a moral obligation, if not legal obligation. Your kids, your grandkids, your great-grandkids — do you not care? Should you care?”

State Senator Robert Duncan believes the Texas constitution does. He filed an amicus brief in the Day case last week, reminding the Supremes that the state has responsibilities beyond carrying water for property-rights purists. “The Conservation Amendment to the Texas Constitution creates an obligation on the legislature to affirmatively manage this state’s natural resources, the most important of which is arguably water,” Duncan wrote in the June 3 letter. To meet that obligation, the power of groundwater districts was expanded by the Legislature in 2005 to include charting out the “desired future conditions” for the state’s groundwater, reports that are due this September. An overly conservative ruling now would derail these efforts, Duncan wrote, warning the Supremes against tinkering in any way that “would necessitate wholesale changes to the deliberate decisions made by the legislature.”

Just as regulators at the Authority aren’t thrilled by the idea they may be forced to hold a massive fire sale, Duncan said pumpers operating over the fast-retreating Ogallala Aquifer in the Panhandle would suffer under any major changes in state water policy. “On the Ogallala … we don’t have time to have confusion with regard to this,” he told the Current.

He wasn’t as sure the Supremes (or the Legislature, for that matter) need to definitively define Rule of Capture to prevent future challenges like Day. Instead, he advocated burrowing more deeply into a regulated landscape in the hopes outdistancing the risk. “The further we get into a statewide policy for conservation of water, especially as we have done it, the better chances are the Court would want to stay away from that,” he said.

But the justices should perhaps be wary for another reason. Just as the Texas commission on Environmental Quality is facing a potential takeover of its air-permitting program by the U.S. EPA for questionable management practices, the Lone Star State could find itself playing footsie with another takeover if it snubs elements of federal water law by absolving itself of its regulatory duties. If saving water in the ground for future generations of Texans isn’t your thing, let’s not forget the blind salamanders and cave beetles that got us here in the first place.

It could be the Supremes limit their ruling so that it only applies to the Edwards Aquifer, leaving the rest of the state’s groundwater districts to stumble along until the Legislature gets serious about defining Rule of Capture. In the meantime, hold on to your pumping limits, cause things are only going to get rowdier, Kaiser predicts.

“Water’s just going to get more expensive. That’s the reality for the future. How much? It’s going to be driven by how far cities … have to go to find water, how much infrastructure costs, what those pipelines cost to bring it back for their customers,” he said. “The easy, less-conflict days over water are probably in the past. We’re just going to see water become more expensive, we’re going to see issues become a little more contentious.”•

1904
Houston & T. C. Ry. v. East
Supreme Court states landowners can pump as much water from beneath their ground as they are able regardless of the impact on neighboring wells.

1949
Local options
Texas Legislature allows for the creation of groundwater conservation districts that may monitor wells but aren’t required to regulate water withdrawal. Few such districts are created until decades later.

1993
Edwards Aquifer Authority Act
Recognizing the vulnerability of the Edwards Aquifer — and defending against a Sierra Club Endangered Species Act lawsuit — the aquifer-wide Authority was created.

1996
Senate Bill One
Texas Legislature says that local groundwater districts are the “preferred method” for conserving and protecting state groundwater supplies. Few bills provide resources for the districts to operate effectively.

Barshop v. Medina County Water District
Texas Supreme Court upholds, on its face, the constitutionality of the Edwards Aquifer Authority Act.

1999
Sipriano v. Great Spring Waters of America
The “Ozarka case” essentially restates the decision of the 1904 court, suggesting that any revision to Rule of Capture be made by the Legislature.

2010
Edwards Aquifer Authority v. Burrell Day
Is the EAA constitutional in practice? Also: another chance to iterate why water is not oil.

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