It almost seems as if our legislature has willfully or misguidedly allowed a plethora of confusing governing bodies to come into being
Note: We've sandwiched Wimberley area resident Barbara Hopson's commentary between a recent story in the Smithville Times and a Times' Letter to the Editor. All three address one of the most important questions of our time: How to best manage our increasingly limited water supply for a growing population? As Ms. Hopson points out, this is a tough question to figure out with so many vested interests and players in the mix. Here's a hint to avoid obscuring the forest for the trees: Keep the focus on the actions of your hard-charging local officials, the ones who claim to be "ahead of the issues" and have an answer for everything. They are the ones typically getting their cues from the higher ups and the special interests.
The HDR Hays County Water and Wastewater Facilities Plan – the one done specially for western Hays County that includes a long list of recommended infrastructure projects totaling $813 million over 50 years – will be one of the big things to watch; how the implementation of the plan plays out in the weeks and months ahead. You can download a copy at this link. Public comment ended at 5 p.m. today. "This is the starting point," said a source familiar with the study and the process. "We see the benefit of this report as getting some ideas down in writing." The 200-plus page study (at a cost to the taxpayers of $215,000) examines water and wastewater management options, infrastructure needs, and policy alternatives needed to accommodate future growth in the western hills, and the rest of the county. Even "no" future development, or very limited development, are options in the study. If you want to follow which direction it all takes, keep your eyes on western Hays County's two county commissioners, Precinct 3 Will Conley and Precinct 4 Ray Whisenant.
Send your comments and news tips to roundup.editor@gmail.com, to Ms. Hopson at hopsonbarbara@yahoo.com or click on the "comments" button at the bottom of the story
Water district wary of Senate bill
Friday, January 28, 2011 | Denis McGinness
Read the complete story in the Smithville Times at this link
The Lost Pines Groundwater Conservation District board of directors has unanimously adopted a resolution that strongly opposes a move by either the state legislature or the courts to create a vested right for landowners to own the groundwater under their property before it is captured.
The move is in reaction to Senate Bill 332, authored by State Sen. Troy Fraser, R-Horseshoe Bay, who has stated that the legislation is needed to clarify that landowners have a vested ownership in the groundwater underneath their property and that through the Rule of Capture, they have a vested private property right to drill a well and produce groundwater for their use.
So many entities and so little enforcement
By Barbara Hopson
Guest Commentary
My feeling is that the Texas problem which most urgently needs attention is the scarcity of water for present and projected populations. Water is something we literally cannot live without, and so it is an urgent issue.It's very hard even to know where to begin in discussing water issues. We tend to focus on a local issue concerning it, but, statewide and district-wide, problems are inter-related and fluid – like water itself.
I guess I would begin with the problem of who (if anyone) owns the water. This is a thorny and unsolved issue. The Texas Supreme Court has before it several cases which may cause the Court finally to make a ruling on who owns water. Since 1904 it has been commonly accepted that a person owns the water beneath his property, and this idea is called the Rule of Capture. But common sense tells you that no one person should be able to sink a well to use all the water he wants, to the detriment of neighbors.
I remember about 15 years ago there was a huge catfish farm on the edge of San Antonio, and that catfish farm was the largest water user served by the San Antonio Water System (SAWS). SAWS threatened to adopt a new water price scale to rein in the fish farm, but the fish farm voluntarily closed before San Antonio had to do that. That instance did not result in a court case, but it might have been helpful if it had; perhaps the limits on the Rule of Capture would have been outlined by the Texas Supreme Court at that time.
Another mind-boggling situation is that there are so many entities – governmental and not – involved in water issues. There are the Texas Water Development Board, the Texas Commission on Environmental Quality, county courts, various river authorities, groundwater conservation districts, groundwater management areas, and priority groundwater districts. There are groups such as the Hill Country Alliance, the Wimberley Valley Water Association, the River Institute, the Cypress Creek Project, and others, which are advisory, but which have no governing power. So many voices clamoring for our attention and for the ears of our legislators make our heads spin.
Then there is the fact that governmental water entities frequently do not enforce the laws and regulations which they are charged with enforcing. The Texas Water Development Board has recently given an enormous loan to the Guadalupe Blanco River Authority for a study to pipe water from aquifiers in Bastrop and Lee Counties to San Marcos and San Antonio, even though the Lost Pines Groundwater Conservation District is the agency which sets water policy for that area, and even though the citizens of Bastrop and Lee counties have protested that projections show that they themselves will need that water for their own growing populations.
Also, some groundwater conservation districts seem unable, or unwilling, to fine or otherwise constrain water suppliers which pump without a permit or fail to fix leaking lines that waste scandalous amounts of water.
It almost seems as if our legislature has willfully or misguidedly allowed a plethora of confusing governing bodies to come into being.
Lastly, costs to consumers of water and for wastewater treatment have reached alarming heights in various parts of the state, including here in Wimberley. Consumers who are not served by community-owned water utilities are at the mercy of privately-owned water suppliers. Those suppliers are permitted by the Texas Commission on Environmental Quality to raise their rates time and again. It is the fox guarding the hen house, since many of the members of the TCEQ are ex-employees of water supply companies. They are good old boys slapping each other on the back, along with a wink and a nod.
Opinion: Groundwater ownership can be a Trojan Horse
Wednesday, January 5, 2011 | Smithville Times
Read Mr. Grimes' entire letter to the editor at this link
Editor,
As I ranch land in Guadalupe County that generations before me have done since the battle of San Jacinto, I can’t help but think of how mankind has plundered most of the earth’s natural resources for capital gain and I can’t help but wonder if groundwater will be the same.
[snip]
In my six years of working for groundwater districts, I have never seen a landowner denied a permit for an agricultural use and most agriculture users do not pump near their permitted amount. Recently, the Texas Farm Bureau, of which I am a member, partnered with the Texas Cattle Raisers Association and various other organizations and are trying to define groundwater in Texas as a vested property right. This may sound good on the surface, but let me assure you that this, in my opinion, is a Trojan Horse for water marketers across the state to get their deals done.
Joshua Grimes
Luling
10 comments:
@Hopson re: "There are groups such as the Hill Country Alliance, the Wimberley Valley Water Association, the River Institute, the Cypress Creek Project, and others, which are advisory, but which have no governing power"
Got news for you. The WVWA and HCA are nothing but anti-growth advocates. None of these entities have "governing power" because they are private organizations. They claim to be non-profits but in fact are quite profitable for certain insiders.
@Joshua: Perhaps where you live the GCDs simply approve permits but in Hays County the people haters (WVWA, HCA, CARD, etc.) lobby to prevent permits from being extended, expanded, or even ever being issued at all. Moreover they have sought to prohibit residential wells in the entirety (except for their members of course). So it is the action of groups like this and oppressive GCD regimes that necessitate affirmative recognition of property rights. In particular - that property owners have a vested ownership right to access the groundwater beneath their property.
@Joshua: The bill would protect property owners from oppressive GCD regimes. Have no fear that there are politicians that would profit from oppressive GCD regimes. Just look at Sen Uresti's bill #274 which purports to allow a GCD board to unilaterally declare an area to be a "management zone" in which residential (exempt) wells are prohibited. How would you like that? Today you have a residential well. Tomorrow you can access the groundwater to serve your house only at the discretion of the local GCD. Uresti apparently doesn't see this as a taking. Bills like Uresti's SB274 necessitated Fraser's SB 332.
Previous Anonymous said, “oppressive GCD regimes that necessitate affirmative recognition of property rights. In particular - that property owners have a vested ownership right to access the groundwater beneath their property.”
While I agree with most of what you said, that statement is confusing me. The Rule of Capture and Senator Fraser’s bill say in essence, that a landowner has a vested ownership to the “water” under his/her land, not just the “vested ownership right to access” that water. The right you mention is the “American Rule” or “reasonable use rule”, Not the English law or Rule of Capture that was decided in Houston & Texas Central Railroad Co. v. East (1904). There is a distinct difference and it is not so slight as you might imagine.
Since the water below is almost as dynamic as the air above your land it is hard to imagine one having ownership of it especially a vested ownership of something so fleeting. Water, in some parts of the Trinity Aquifer for instance, has been scientifically measured as moving some five miles in a single day. I think that all property owners should have a “vested right to drill and pump” whatever water happens to be under their land. They can’t possibly have ownership of the water until they posses it.
@Anon#2:
We do not have the "Rule of Capture" anywhere that a GCD exists. The GCDs impose caps or even prohibit residential (exempt) wells. Non-residential well (non-exempt) require a permit and permits are issued only at the discretion and in the amount allowed by a GCD board.
Fraser's bill does not define the scope of ownership.
However, it is clear that the oppressive GCDs were trying to claim that property owners only had ownership of water after capture and that it therefore wasn't a "taking" if they prevented you from capturing it or eliminated any right when the property changes hands. Look at the Lost Pines GCD letter that accompanied this article as just one example.
This was clearly the strategy employed by former HTGCD board members Wierman, Hollon, Backus, and their affiliates like "Friendship Alliance" and WVWA. These groups continue to seek legislation to eliminate residential wells for others and to give GCDs taxation and other powers. They do not believe in property rights except for their members.
Fraser's bill does not prohibit limiting the amount drawn out. However Fraser's bill would prohibit GCDs from doing what Backus, WVWA, "Friendship Alliance", et al. have tried to do - i.e., denying owners all right to pump groundwater from their own property even when it was for their own use.
Fraser's bill specifically states that the "owner has a vested ownership interest in and right to produce.."
That's why it was characterized/emphasized as a vested ownership right to access the water which is very much the right that the oppressive GCD regimes refused to recognize and tried to deny the existence of. Again, look at the "resolution" and statement from the Lost Pines GCD as one example of an oppressive GCD regime. Fraser himself indicates that the bill was targeted to address the conduct of some of these GCDs.
Fraser himself mentions the right to regulate production but rejects the notion of regulation to zero which is what the oppressive GCD regimes are being used to accomplish.
Anon #2 said: "The Rule of Capture and Senator Fraser’s bill say in essence, that a landowner has a vested ownership to the “water” under his/her land, not just the “vested ownership right to access” that water".
The Rule of Capture does not stand for the proposition that the groundwater is absolutely owned by the land owner and neither does Fraser's SB 332. Fraser's SB 332 recognizes a "vested ownership interest in and "right to produce". An ownership interest in is not the same as absolute ownership.
See, SB 332
The reason the term "vested" is there is to ensure the right goes with the ownership of the property as opposed to when you acquired the property or whether you already have a well on the property. The oppressive GCDs have tried to limit vested rights as being applicable only to property owners that currently have wells (grandfathering). These regimes were trying to deny property owners from having a well by claiming that it wasn't a taking to deny such rights moving forward. The regimes were also trying to strip even properties that had wells from any rights at the time the property was conveyed. Hence the bad actors in these GCDs necessitated legislation to protect the property owners.
You can read the text of Senator
Fraser's Senate Bill 332 by going to www.legis.state.tx.us. Under
"Search Legislation," activate the
"Bill Number" button and type in
"SB 332." At the next page, Click
on the tab for "Text," and you'll
be offered 3 formats to choose
from for viewing the text.
Under the section "Ownership of
Ground Water," the first part of
Fraser's bill says that Section 36.002 of the Texas Water Code will hereby be amended to read:
"(a) A landowner, or the landowner's lessee or assign, has a vested ownership interest in and
right to produce groundwater below the surface of the landowner's real property, and nothing in this code may be construed as granting the authority to deprive or divest a landowner or the landowner's lessee or assign of the ownership
interest in the groundwater or the right to produce groundwater, except as those rights and interests may be reasonably limited
by rules promulgated by a district."
In this bill the word "district"
apparently refers to a groundwater
conservation district, because the whole Section 36 is titled
"Groundwater Conservation Districts."
@ Babs: Fraser's bill does NOT declare an absolute ownership of groundwater but rather a vested ownership interest in and right to produce the groundwater.
Use blue highlighted link from Anon #4 for a text version of the bill (since one can't rely on characterization by Round Up contributors) or pick from HTML, text, or PDF versions at this link:
SB 332
Notice that the bill allows reasonable regulation. As noted by Fraser - absolute prohibition is not reasonable regulation. Unfortunately, the attitude exhibited by the letter from the current LPGCD regime is precisely why Fraser's bill is needed.
To Anonymous 8:20 PM:
I did not interpret anything from
Senator Fraser's SB 332. All I
did was quote, verbatim, one
part of the bill.
Anyone can go to the website I
mentioned to read the entire bill and interpret for himself.
Thanks!
To Anonymous 8:12 PM:
Could you please explain the
difference between a "vested
ownership interest" (SB 332
language) and an "absolute
ownership" (your language)?
Thanks.
The Supreme Court in affirming and reaffirming the Rule of Capture has continually deferred to the Legislature, regulation of groundwater. This eventually resulted in the creation of Groundwater Conservation Districts. Some districts are strong and are actually able to fulfill their mission, but our district, The HTGCD is little more that an “un-funded mandate”. It lacks funding and authority as the Legislature and many locals apparently wanted. It has neither police powers nor the funds to sustain a legal action to enforce groundwater laws.
When the HTGCD was originally setup it was staffed with a group of PhDs that, as one would expect were long on science but short on governance and decision making skills. While the science they brought to the table was valuable and they were instrumental in expanding the knowledge of the Trinity Aquifer, they accomplished little in the way of regulation. Some members were so strict at conservation and their personal agendas that hardly any actual regulatory work was done. Any regulation by that Board was usually a default of inaction.
The present members are good people in my opinion, but the local politics and the worst bureaucracy in the State, the TCEQ have caused them to operated under severe handicaps. Probably the biggest failure of the Board, past and present is their allowing the 7 plus years of Aqua Texas’ huge waste of over a half a billion gallons groundwater. That was and continues to be violation of law and they should have been fined and the company’s assets seized by the State. Sadly, the State of Texas and many of its citizens appear to be ambivalent to its groundwater.
The HTGCD has allowed some very large water users in their area to pump huge amounts of groundwater without permits. Dripping Springs Water Supply and Wimberley Springs Partners represent a couple. DSWS apparently refuses to apply for a permit and ignores the authority of the District. The Board’s failure to grant a request for a permit by WSP to pump water to supplement the treated effluent used for irrigation has been on hold for years due to the inaction of the former Board and the timidity of present Board and its one holdover obstructionist member. The board needs to ignore the obstructionists, fanatics and critics and simply enforce the laws as written. They should not be making decisions based on morals or be driven by the agendas of conservation activists. The constant harangue about “Springs and Streams” and “Jacob’ Well” should be referred by the Board to the appropriate regulatory body since they are not groundwater, they are surface waters. They should just do what they were elected to do, act within the laws to regulate and protect the landowner’s groundwater.
In law, vesting is to give an immediately secured right of present or future enjoyment. Absolute rights are usually God given and not subject to review, however in this nation of laws and lawyers no right is absolute or can ever be considered a true vested right or interest.
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