A decade ago, prospective water marketers easily secured the rights to pump more than 20 billion gallons of water annually from the Carrizo-Wilcox aquifer in Central Texas’ Burleson County. The company now holding those rights, BlueWater, is negotiating a $3 billion deal to send much of that water to San Antonio.
In nearby Bastrop and Lee counties, two other prospective water marketers, Forestar and End Op, have their eye on the same aquifer and hope to sell water to growing communities near Austin. But after years of legal and administrative battles, they have yet to secure water rights they say they need.
Why the difference? In Burleson County (along with part of Milam County), the Carrizo-Wilcox is regulated by the Post Oak Savannah Groundwater Conservation District. In Bastrop and Lee counties, the Lost Pines Groundwater Conservation District is in charge.
The Post Oak district says that groundwater is a private property right in Texas and that limiting pumping before it happens could result in a lawsuit. But supporters of the Lost Pines district say it’s trying to be vigilant about pumping from the aquifer today to avoid unanticipated water shortages in the future — which could also result in lawsuits.
The two different approaches illustrate a conundrum in groundwater law that has yet to be resolved. Restricting groundwater pumping may be violating a private property right, but that is also an inevitable consequence of using a finite resource.
“There is no right of regulation unless you can say ‘no’ without liability. And that’s the vacuum that exists out there right now for districts and in the law,” said Jim Bradbury, an environmental lawyer in Fort Worth. “When can a district say no and have no liability?”
As water marketers continue to eye the Carrizo-Wilcox as one of the most promising aquifers to quench the thirst of a growing population along the Interstate 35 corridor, the two districts’ vastly different management strategies have been hotly debated.
Most water marketers and thirsty cities like San Antonio prefer Post Oak’s approach, because the district has no problem issuing pumping permits for large amounts of groundwater over long time periods, and it doesn't require the water to be pumped right away — effectively allowing prospective providers to "reserve" it before they start using it. That gives providers certainty that the water will be available over several decades, allowing them to spend time finding willing customers and to invest billions of dollars in transporting the water to them.
"The [Post Oak district] has a different take than most other districts," said Robert Puente, president and CEO of San Antonio Water System, at a recent public forum on BlueWater's proposed project for the city.
Lost Pines, on the other hand, only issues permits for five-year periods, and only for the amount of water that will actually be pumped during that time period. Prospective water providers say that creates a problem: Without a guaranteed long-term supply of water, they can't invest in pipelines or persuade cities to become customers. And without those guaranteed customers, they can't prove they'll actually pump the water they want to within the five-year timeframe, and the conservation district won't give them the permits.
"There is a need for this water where it's proposed to be delivered," said Russ Johnson, an End Op lawyer, at a recent public hearing in Bastrop over End Op's contested application to pump 18 billion gallons of water a year from the district. He said End Op has spent $5 million to get a permit from Lost Pines over the past several years, with hopes of delivering it to Williamson County, and it still hasn't secured a drop of water.
Many rural landowners in Bastrop and Lee counties, however, support Lost Pines’ approach. They worry that long-term permits for significant amounts of water give companies free rein to dry up the wells under their own land.
“It’s a grab for a limited resource,” Bastrop County Judge Paul Pape said in an interview. “"Without vigilance, it would be easy to overtax [the Carrizo-Wilcox]."
"There's no question, everybody's looking at Bastrop and Lee County [for water]. There's a lot of pressure," said Mike Talbot, president of the board of directors for the Lost Pines district. "We want to be fair and equitable to all parties." He noted that the Legislature requires districts to update their management plans every five years, so a five-year time frame for a permit makes sense.
Gary Westbrook, the Post Oak district’s general manager, said that unlike the counties directly around Austin, Burleson and Milam counties are only projected to gain a few thousand people in the next 50 years. That means his district can issue permits for bigger amounts of water and longer amounts of time without concerning itself over a lack of water for future growth, he said.
“We can manage a little differently than our neighbors because we don’t have a Bastrop, or fast-growing areas,” Westbrook said. “Our population growth is not slated to explode.”
Indeed, beyond BlueWater, no other water provider hopefuls have been explicitly considering pumping significant amounts of water from the Post Oak district. Whereas in the Lost Pines district, the Lower Colorado River Authority and others are putting their straws in alongside Forestar and End Op. But because Burleson, Milam, Bastrop and Lee counties all share the same aquifer resource, the expected population explosion outside the Post Oak district will probably impact Post Oak as well.
If that happens, Westbrook said, his district has rules that allow it to cut back pumping allowances: “The best thing I could say is, “‘Our permits are contingent.’”
He also saw a problem with Lost Pines’ approach: Lawsuits. Forestar sued Lost Pines this year after the district gave it a permit to pump 4 billion gallons annually, a quarter of what the company had asked for. The district said that Forestar was only planning to pump 4 billion gallons out of the aquifer each year over the next decade, but Forestar contends it can never secure more customers without the guarantee of more water.
If the Post Oak district took Lost Pines’ approach, Westbrook said, “you’re projecting definitively what’s going to happen. You’re going to choose winners and losers before the game is ever played.”
Aqua Water Supply Corporation is one water provider that doesn't see it that way. Aqua has long sold water from the Carrizo-Wilcox to residents in Bastrop County and surrounding communities, and it sees all the other hopefuls — BlueWater, Forestar and End Op — as threats to its existing and future business. The corporation unsucccesfully protested against BlueWater's permit in front of the Post Oak district 10 years ago, and is now contesting End Op's bid.
"Aqua certainly needs as much certainty as possible about how firm its water supplies are," said Mike Gershon, Aqua's lawyer. He said he's confident that both districts will manage the aquifer responsibly because they have to agree to, and follow, what are known as desired future conditions, or DFCs — they have to agree on what an acceptable amount of reductions in water level would be in the coming decades in the Carrizo-Wilcox.
But the processs of deciding on those conditions is fraught with problems, and many groups — including water provider hopefuls and environmental advocacy groups — have argued over what an acceptable DFC is for the aquifer. Right now, there's no easy way for them to contest that. But Gershon said he expects the Legislature to provide some clarification: Soon, he thinks, groundwater districts will be able to get sued over DFCs, too.
Disclosure: The San Antonio Water System and the Lower Colorado River Authority are corporate sponsors of The Texas Tribune. A complete list of Texas Tribune donors and sponsors can be viewed here.
This article originally appeared in The Texas Tribune at http://www.texastribune.org/2014/09/03/tale-two-groundwater-districts/.