Texas’ Changing Relationship with Water

Austin journalist (and full disclosure: Energy Center friend) Ari Phillips recently published a fantastic investigative piece in Texas Climate News on groundwater depletion in Central Texas.  Among the highlights:

Insulation from Drought:  Ari notes that during the 1950s drought – the worst on record, as many new stories about the current drought have reminded – “most Texans either relied on rain for survival – for livestock or agriculture – or knew a family member who did.  The connection to water has been all but lost as reservoirs brought reliable water supplies to an increasingly urbanized population.”

This is a great point.  There are a lot of ways drought can affect people – through higher prices (for water itself or for water-dependant goods and services), through behavioral restrictions (such as landscaping dictates), through recreation or aesthetics (think of all those suddenly dry-land docks on the Hill Country lakes), and even through a general civic anxiety (the sort of psychological concern that news induces for a lot of policy issues that viewers/readers may not experience directly).

All the same, the average Texan – and the average American, for that matter – is less intimately connected to precipitation patterns than was the case half a century ago.  In an urban society, which Texas arguably was not back then but has certainly become, most livelihoods do not live or die by rain.  Infrastructure systems and layers of bureaucracy manage water so that we do not rely on what comes to us from the sky or even the stream but rather through carefully regulated and politically sensitive networks of reservoirs, intake pumps and pipelines.

This arrangement helps to reduce risk.  But at the same time, it obscures the obvious but easy-to-overlook connection between day-to-day meteorological conditions beyond human control and the water that emerges from our taps.  Water comes to seem like something of an abstraction, a reliable commodity.  It is telling that lawmakers have largely promoted the $53 billion worth of projects in the State Water Plan not as a means of alleviating costs and inconveniences like those the current drought has inflicted but rather as way to prevent future economic losses.

Abstract benefits are being touted to address a problem that, for many Texans, is mostly an abstraction.  I did not live through the 1950s drought but suspect the public conversation that started the state’s great dam-building boom was, while forward-thinking, grounded in extensive conversations about the immediate and tangible impacts that many Texas were directly experiencing.

Of course, Texans today are more likely to be insulated from the direct brunt of drought in part because, in response to the 1950s drought, previous generations of Texans left rural communities for cities, accelerating urbanization.

Dual Regimes for Groundwater and Surface Water:  Through conversations with landowners, environmentalists, and water managers, Ari illustrates the hydrologic illogical and operationally untenable method of regulating surface water and groundwater as if the two were separate and unrelated.

He quotes Andrew Sansom, the executive director of the Meadows  Center for Water and Environment at Texas State University-San Marcos as colorfully summing up the problem: “We manage water in Texas as if when it’s in the river it’s chocolate but when it’s in the ground it’s strawberry, and that’s not sustainable … Sooner or later that’s going to come home to roost and we’re going to have a really serious problem.”

Rule of Capture: The article recaps that, last year, the Texas Supreme Court issued a controversial decision in Edwards Aquifer Authority v. Day, holding that the rule of capture that governs oil and gas should apply to groundwater.

But the article builds on the idea – which Austin water attorney Mary Kelly hinted at in a blog post this February – that the decision, for all its property rights rhetoric, might not crimp regulatory authority as much as some fear.

Ari quotes David Langford, the former CEO of the Texas Wildlife Association: “Rule of capture went away 15 years ago when they formed groundwater districts … Now, with only some exceptions, you need a permit to use groundwater, especially in places where anybody is worried about wasting it.  So the rule of capture is an old wives’ tale that doesn’t exist anymore.”

Translation: the state is divided into 16 groundwater management areas, which include scores of mostly county-based groundwater conservation districts.  Most urban areas – especially those, like metro San Antonio, that are heavily dependant on groundwater – have created such districts.

But there are gaps.  Fracking operators have drilled extensively (and consumed much water) in the Eagle Ford Shale in Webb County, for instance, but the comparatively arid county does not have a conservation district.

Even in urban areas, the patchwork of conservation districts may leave some areas as unregulated free-for-alls.  Ari describes just such a situation on the west side of Austin, where homeowners have drilled wells to avoid the conservation-oriented rate designs their utilities have instituted.  (For great maps of where aquifers and conservation districts are located, check out this presentation from Austin water lawyer Mike Gershon.)

And as Langford says, groundwater conservation districts are run according to the idiosyncrasies of their boards.  State Impact Texas recently reported on the tensions in Bastrop County, where a permit application from a business wishing to export pumped groundwater to nearby Austin has raised questions about the board’s authority and priorities.

Private Landowners:  “We have a state where all of our watersheds, all of our recharge areas, all of the things that make the hydrologic cycle work are on private property because we’re a state that’s owned by private citizens.  Yet we do absolutely nothing to protect these watersheds,” the article quotes Sansom as saying.

The statement hits on several related challenges.  First, hydrological systems are big and complex, underlying swaths of terrain.  You can’t neatly create and cordon off a recharge zone (though you can, as years of Austin-area land use skirmishes attest, regulate development in one).  The second problem is that all activities that alter the natural environment – mining, harvesting timber, road-building, subdivision-building – affect recharge zones, usually for the worst, by adding impervious surfaces and creating new drainage flows.

Finally, the government is limited in how much it can regulate recharge-altering development on private land – and land in Texas is, especially compared to other Western states, almost entirely privately owned.  There are policies to protect watersheds – stormwater management practices, for instance, can help ensure greater onsite retention of water and, by extension, groundwater recharge – but they come with their own challenges and do not offer perfect solutions. And pursuing such policies in Texas is particularly difficult because the state does not grant counties the authority to regulate land use in unincorporated areas.

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