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Texas Water Solutions

What Can You Do Now That Proposition 6 Passed?

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November 27, 2013

As you may have seen, Texans took historic action on November 5 when they overwhelmingly approved Proposition 6, the state constitutional amendment to create new funding for water projects in regional water plans (the building blocks for the state water plan). With passage of Prop 6, $2 billion will be transferred from the state’s “Rainy Day Fund” to the new State Water Implementation Fund for Texas (SWIFT), and several provisions in HB 4, companion legislation passed by the Legislature earlier this year, will take effect.

Next Steps

Now the real work begins.  Successful implementation of Prop 6 and HB 4 is not automatic. Passing legislation is one thing, but ensuring that the goals of new legislation are truly met requires long-term engagement by many stakeholders. Decisions made by the 16 regional water planning groups and the Texas Water Development Board in interpreting and administering Prop 6 and HB 4 will determine whether these new laws improve regional water plans, enhance the use of conservation to meet anticipated water demands, provide sufficient funds to pursue necessary and responsible water projects, and assure dependable water supplies for both people and the environment.

What can you do?

The key to successful application of Proposition 6 money depends on public involvement. The most effective way to ensure this money is put to good use if for all Texans interested in water to take the plunge and become engaged in regional water planning efforts.  Public involvement often leads to good results.  For example, a number of ill-conceived reservoirs in the planning region that includes Houston were deleted from the regional plan after an outpouring of public opposition. But Texans must move beyond killing irresponsible projects and work to advance conservation and more effective drought response.

Now is the time for Texans to focus on regional water planning. The regional water planning groups are currently revising their plans (required every 5 years), first assessing where current water supplies may not meet anticipated water demands over the 50-year planning horizon. The groups will then determine how to meet any water deficits – through enhanced water conservation, infrastructure, or other means.  This is where there is a real opportunity. Conservation options should be prioritized over large infrastructure projects.  Conservation is usually much less expensive and using existing water resources more efficiently is the most reliable water supply alternative.

If you care about whether there will be enough water for you and your children and grandchildren, where that water will come from, and how to preserve our state’s natural heritage while sustaining a dependable water supply, learn about the regional planning group in your area and take advantage of the opportunities provided for public participation. You will find information about regional water planning.   We will keep working to ensure that the potential of Prop 6 and HB 4 to promote a conservation ethic and fiscally responsible water planning is achieved. We invite you to take the plunge and join us.  Stay tuned for more information about how to get involved and implementation updates.

 

Let’s Talk About Turf

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November 04, 2013

Now that we have survived another hot, dry summer and are firmly in the fall season, it is time to turn off the irrigation systems and take a moment to think about lawns.

Outdoor water use can be a significant part of a household’s total water use, especially if the home has an irrigation system.  Homes with irrigation systems can use 50% to 100% more water on average than homes where someone manually irrigates with a hose and/or sprinkler.

What Cities Can Do

A new study from the Texas Water Resources Institute at Texas A&M shows that 46.6% of municipal water use is for “urban irrigation”, defined as lawns and golf courses.  This amounts to 2.262 million acre-feet of water and 12.6% of the annual water demand in Texas – just for outdoor landscapes.  Using large volumes of water for this purpose is not something we can afford to keep doing in Texas – it isn’t sustainable.

The majority of this demand occurs during the hottest and driest time of the year.  It is important to note our water supply systems and treatment capacity must to be built to meet that “peak demand” even though it is not needed much of the year.  This is a cost that could be avoided if reducing outdoor watering is taken seriously.

The choice for cities facing water shortages now or in the future is clear: invest in expensive new water supplies or invest in programs to reduce water use, including outdoor water use.  Several smart Texas cities chose the latter.  San Antonio Water System provides rebates to customers who agree to reduce their turf grass and to replace it with plants from an approved drought-tolerant plant list.  They even provide a handy design plan and plant list for those who need design help.  The City of Austin offers $25 for every 100 square feet of healthy turf grass converted to native plant beds with a maximum rebate of $1,250.  These cities have decided that investing in water saving landscapes is a good investment towards stretching existing water supplies.

Let’s look at a city outside of Texas that has gotten serious about lawns with great results.  Doug Bennett, Water Conservation Manager with the Southern Nevada Water Authority (SNWA), recently visited Texas to discuss his experiences managing water use in Las Vegas and Southern Nevada.  Mr. Bennett says SNWA’s greatest opportunity for saving through water conservation lies in curbing wasteful outdoor water uses.  Focusing on outdoor water use, SNWA has put programs in place that prohibit lawns in new residential front yards and limits lawns to 50% of the landscape area in new backyards. Lawns are prohibited in new non-residential developments, and golf courses (new and existing) are required to operate within a water budget based on their irrigated acreage. By focusing on water efficiency and aggressively managing outdoor water use, SNWA customers have reduced their per capita water use by 37% since 1990. This means the population can grow by utilizing existing water supplies.

In Texas we are experiencing a severe, prolonged drought and it’s our turn to look critically at lawns.

Can Texas learn from Las Vegas?

While the Las Vegas model might not work perfectly in Texas, it’s time to put some serious thought into determining what does make sense for us. The climate in our state ranges from desert in the West to the plentiful rain of the Pineywoods in the East.  Local leaders should put rules and policies in place that promote landscape types that make sense for the area. Wide expanses of green lawns do no make sense in most parts of our state. We need to take a close look at the expectations we have about what our communities should look like and be realistic about water resource limitations.  Our outdoor landscapes need to more closely reflect the area’s climatological realities.

Some program options for water providers include:

  • Limiting the percentage of turf areas in new development landscapes
  • Provide rebates and incentives to convert water thirsty landscapes into drought tolerant landscapes
  • Implement time-of-day and day-of-week outdoor watering schedules and educate customers on how compliance with the schedule can help keep rates low and prolong water supplies
  • Educate customers on the appropriate amount of water to apply to landscapes
  • Develop irrigation system design standards that minimize waste and promote efficiency
  • Provide irrigation system audits for customers that include assistance with correctly setting controllers
  • Provide information on appropriate drought-tolerant plant and turf species for your area
  • Partner with local media such a TV and print media to communicate appropriate watering amounts based on local weather conditions

What’s the Goal?

Most residents prefer not to have a brown lawn, and luckily that isn’t necessary.  Drought resistant plants can flower year round and maintain outside beauty while still saving water.  Supplemental outdoor watering during the hottest part of the summer may be necessary (during non-drought periods), but most outdoor landscapes should be able to survive with minimal additional water for most of the year.  This is absolutely necessary if we are going to continue to provide water at an affordable rate, provide water for new Texans, bring business to our state and make sure that we have enough water to provide for environmental flow needs.  It is essential that we get this right.

Texas must take an honest look at nonessential, discretionary water use – particularly outdoor watering – and invest in reducing that drain on our water resources. Cities and their residents need to decide how much water we can afford to apply to our lawns.  Addressing outdoor water use will put us one step closer to assuring that all water needs are met, including those of the environment. We should not be put in the position of choosing lawns over preserving the natural heritage that makes Texas so special. That is a losing proposition.

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Land Use Choices Change Water Demand Projections

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October 10, 2013

Cities across Texas are tasked with the daunting job of ensuring adequate water for their citizens into the future.  Decisions that are made regarding new supply of each can have large economic consequences for existing customers, but not pursuing supply may have dire consequences for the sustainability of the city.  Unfortunately, this fear of running out can cloud discussions about how much new water is really needed.  The key to getting this right is land use.  Too bad land use is often left out of conversations about expanding water resources.

Hopefully, the conversation will change.  Next week, I will be taking part in the San Antonio Clean Technology Forum, which will bring city leaders together to discuss critical planning questions and find a way forward. The focus of the forum is the big picture for growth in an effort to understand the relations between demand projections and new supply planning.  Simply installing infrastructure outside the city limits incentivizes sprawl and evades the planning that is really necessary for a successful, sustainable city.

Demand Projections Change with Behavior

Municipal water demand is dictated by both the residential and commercial needs of a city. Water demands are calculated based on the approved land uses within the potential service areas, coupled with the average annual daily water demand and peaking factors associated with the various land uses. Because demand projections are based on usage assumptions, they can be altered by behavior modifications.  When people use less, the overall demand needs projected over time decrease significantly, which also changes the new supply timeline.  Assuming we will use water the same way in the future as we do now is unwise.   Thankfully, there are many things that we do differently in the present as compared to the past. Technology and behavior changes continually allow us to do the same things with less.  This trend of change needs to continue.

Growth as a Driver

Along with how each user uses water, growth is ultimately the driver that defines projected resource needs. Proper management and understanding of growth is the key to any city’s success.  Certainly, diversity of water supply is important for resilience, but the quantity of supply needed to sustain growth will vary based on the expansion vision.  The need for new resources is not only defined by how much we grow but how we grow.  The challenge for cities is often finding the leadership to look at a city and its needs as an integrated whole.

The Texas Water Development Board predicts that South Central Texas will grow by 75% between 2010 and 2060.  Municipal water use is one of fastest growing water categories.  For example, San Antonio Water Systems’ (SAWS) Land Use Assumptions Plan predict that the population of their service area will increase by approximately 230,000 people in the next ten years.   This translates to almost 100,000 household units, each of which will need approximately 300 gallons of water per day excluding the water required to provide energy to these same homes. The total number of gallons needed depends on how a city grows not whether it grows.

A change in land use requirements can result in an increase or decrease in anticipated demand.  In many instances, a city’s projected water demand is driven by developments in undeveloped areas within the city limits and assumed growth in the extra territorial jurisdiction (ETJ).  Studies show that new homes require considerably more water than older homes as a result of the systematic installation of irrigation systems in many new housing developments.  Larger lot sizes and houses with greater footprints can also increase overall usage.

Planning for Peak

There is another supply driver that must be examined: peak usage. Most water supply forecasts models are primarily concerned with ensuring service for limited peak demand times of the year when usage spikes and maximum supply is needed.  This means that for most of the year we have plenty of water for our needs, but for small snippets of the year our needs increase due to outside influences.  Many times, cities plan expensive supply measures to ensure that peak is covered.  In Texas, this peak occurs in the summer when air conditioners are cranking and lawn watering increases substantially.  New supply measures may be avoided or significantly postponed by simply reducing demand peak usage.

What to do?

Two primary strategies can be employed by water utility managers to balance increasing water demand and supply in the urban sector:

(1) Develop land in way that use less water per capita

(2) Decrease peak water needs

Cities can control demand management through implementation of conservation and efficiency measures. In addition to the suite of incentive and rebate programs offered by both the water and electric utilities, demand can also be managed through city ordinances such as efficiency oriented building codes. Land use limits are also tools that can be used to minimize demand while still allowing for growth.  Examples of effective land use initiatives include encouraging high-density growth near the urban core and dictating water efficient landscaping and energy efficient construction for new builds.

Controlling water intensive landscaping is particularly important because outdoor watering can account for 30-50% of the city’s total withdrawals, particularly in the summer months when water is scarcer. Houses with irrigation systems can more than double a household’s water use as compared to houses that do not have one. Requiring installation of irrigation systems often provides a disincentive to plant drought resistant plants in new communities and increases demand more than if the same communities were planned differently.  This means that it is not necessarily the growth itself that causes the challenge; it is growth without the appropriate guidelines. Reducing discretionary watering will the biggest impact in the peak months and reduce need for new supply.

The success of a city depends on a master plan that includes all aspects of planning including water and energy needs within a land use context.  A city cannot predict demand of resources before first determining who it will service, which is dependent on land use decisions.  Expensive water purchases that can have negative environmental consequences should not be made before future demand is fully understood. The need for a big picture plan and supply decisions are not in conflict with one another, but they do necessitate initiative and vision to move forward in an effective and timely manner.  Let’s start talking about it.

Losing in Vegas – Water & Money!

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October 04, 2013

This blog post was written by Ken Kramer, Water Resources Chair, Lone Star Chapter of the Sierra Club

Most people who go to Las Vegas probably worry about losing money. Those of us here in Vegas at the Sixth Annual WaterSmart Innovations Conference, hosted by the Southern Nevada Water Authority, worry about losing water. But water losses often mean lost revenue for water utilities; and if your water utility is losing too much water in its distribution system, it could be gambling with your community’s future.

Maybe that’s why utility water loss was the topic of several sessions at the national water conservation conference I’m attending in Vegas. “Water loss” is a slippery term (pardon the expression) and may include both “real losses” (physical losses of water in the distribution system through, for example, leaking pipes and water main breaks) and “apparent losses” (for example, losses due to water meter errors), both of which should be of concern to water utilities. Both are “non-revenue water,” a term that water professionals are using to convey the fact that water loss means revenue loss to utilities that are often financially challenged.

Among the wealth of information about water loss I gleaned from the WaterSmart Innovations sessions, here are three important items of note for folks who want to see this issue addressed:

  1. The Center for Neighborhood Technology (CNT) is releasing a report this month (October) on building the case for utilities to tackle water loss in their systems. At the conference Danielle Gallet described how CNT’s research on water loss in the eight Great Lakes states found a great need to develop the case to persuade utilities to address water loss (71% of the utilities responding to a CNT survey said they had no policy on water loss, and only 60% said they conducted water audits).
  2. The Water Research Foundation will be holding webinars in early 2014 to present a new component analysis model and software tool for better pinpointing “real losses” in water utilities. This new model and tool is the result of a two-year research project (Water RF 4372) discussed by Kate Gasner of Water Systems Operations at the Conference. The City of Austin was one of the utilities participating in this project.
  3. The American Water Works Association’s Water Loss Control Committee is promoting validation of water audits. Without clear standards and practices, one can’t be sure that audits are conducted correctly and that the information on water loss from those audits is accurate, Will Jernigan from Cavanaugh & Associates reported at the conference. The State of Georgia has become a leader in validation of water audits.

One encouraging thing is that Texas is actually among the states making the most progress in confronting water loss. As reported by the Lone Star Chapter of the Sierra Club in the Texas Legislature in 2013 passed a number of bills that address the water loss issue and related conservation measures. If we play our cards right, the next time water conservationists gather in Vegas, Texas will be able to show a winning hand on reducing water loss.

What Happens in Vegas Doesn’t Always Stay in Vegas!

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October 03, 2013

This blog post was written by Ken Kramer, Water Resources Chair, Lone Star Chapter of the Sierra Club

Sometimes being a water conservation advocate is tough work. For example, this week I had to travel to Las Vegas to attend the Sixth Annual WaterSmart Innovations Conference, the most prominent gathering of water conservation professionals and significant others held each year, hosted by the Southern Nevada Water Authority. This is the third one that I’ve attended, and I learn something new about water conservation and efficiency each year. Because water conservation is such an important part of the Texas Living Waters Project – and so important for the future of Texas – I’d like to share with all of you some of the important information about this critical topic that I’ve gathered from the conference.

No Water, No Beer

The conference kicked off Wednesday, October 2 with a keynote address by Kim Marotta, Director of Sustainability at MillerCoors, the consummate beer brewing enterprise. Why a keynote address from a MillerCoors representative? Simple – water is a critical component of the beer brewing industry, and MillerCoors has embarked in the last five years on a significant initiative to become a leader in using water more wisely and protecting this precious resource.

Water is a key ingredient in the production of beer, of course. But it might surprise you to know that as of 2008, it took 4.1 barrels of water to produce one barrel of beer brewed by MillerCoors. This is referred to as the water-to-beer ratio. In 2008, MillerCoors set a goal of reducing that water-to-beer ratio by 2015 so that it only would take 3.5 barrels of water to produce one barrel of beer. That wasn’t an idle target; the brewer has already met that mark. They did it through a variety of measures, including not only water use reductions at their eight breweries in the United States (including one in the Fort Worth area) but also by altering water irrigation practices on the farms of their barley growers in Idaho and elsewhere. For example, through a partnership with The Nature Conservancy (TNC) and barley growers in the Silver Creek area of Idaho, on one farm alone, MillerCoors and TNC helped to reduce water use by 20% from historic levels (419,000 gallons of water saved each year on this one farm).

This success by MillerCoors drives home the point that everyone has a contribution to make to water efficiency, and it also underscores how our society can improve water efficiency in so many ways that may not be readily apparent. We all need to take a look at what businesses and industries in our respective areas are doing and can be doing to be more efficient in their use of water. MillerCoors provides a good example for others to follow. For more information about their water stewardship work, visit their website.

So, just keep in mind, the next time you hoist that bottle of a Miller or Coors beer, you’re not just enjoying your favorite beverage, you’re striking a blow for water efficiency. Just don’t become too efficient, okay? A moderate number of beers will suffice to advance water efficiency.

More from Vegas later!

More Information on Texas Groundwater Law

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October 02, 2013

Yesterday, I was invited to be on Texas Public Radio’s show, The Source to discuss the recent Bragg v. EAA court decision and the status of groundwater law in Texas.  Attempting to explain groundwater rules in short concise sound bites reminded me how complicated groundwater’s legal history is and how unsustainable it can seem.  The show’s host, David Martin Davies commented that one of the challenges to water and water law is that so few people understand it or notice these new court decisions.  I have to agree.  It’s no one’s fault – it’s just so confusing!! I have been working with water law for about ten years and I am still learning about the history of how we got here.   So, I thought I would provide the radio interview for folks who want to learn a little more.  Along with myself, a West Texas farmer was on the show expressing landowners’ well-founded concerns.

One last thought that we didn’t get to on the show – people often cringe at the idea of regulation, particularly if it is perceived to be an infringement of private property rights.  I understand those concerns, but I would like to point out there is a cost of doing nothing.  A cost, I would argue, that is far higher than trying to reduce groundwater pumping now in an effort to ensure water for all users in the future.  Often we hear the choice being presented as regulation versus pump all you want.  This is a false choice.  For every property owner who wants to pump all they want, there is a neighboring property owner who wants to maintain their land and needs water available below their property to do so.  We have an obligation to all of these people.  No one has any bigger right than anyone else, so we must find a compromise where no one gets everything and everyone gets something.

Cutting off Matagorda Bay’s Water is Unwise and Inconsistent with Texas Law

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October 01, 2013

Previously, we posted about LCRA’s decision to seek emergency authorization from TCEQ to allow them to diverge from their Water Management Plan and suspend river flows to Matagorda Bay

LCRA submitted their request to TCEQ on Thursday, September 26th.  We will lay out the process at TCEQ in another post.  Our current guess is that TCEQ may not take action on the request until mid-late October.

This request is unprecedented and should be approached with an abundance of caution.  It is important to know the water in question here is to provide “critical flows” to Matagorda Bay.  This minimal level of freshwater inflows is designed to provide a sanctuary area near the mouth of the river where organisms can persist during severe drought conditions so they will be available to repopulate the larger bay when better rainfall conditions return.  Think of it as life support – Matagorda Bay has been on it since 2008.  Reducing flow even further, or cutting it off completely, could mean permanent damage for the system.

Matagorda Bay Delta with Refugium.  Image courtesy LCRA

Matagorda Bay Delta with Refugium. Image courtesy LCRA.

Sharing Water Means Sharing Drought Burdens

LCRA is using the extreme drought to defend seeking permission to implement this extreme solution.   The problem is that the entire watershed is experiencing the drought, but not all users are being forced to adjust their behavior in the same way.  While Matagorda Bay and its dependents are being asked to go without water, many urban areas are barely feeling the heat.  Water is a regional asset, which means that all users need to share the benefits and the burdens of that asset so we all survive the drought.  Before we completely cut off Matagorda Bay from freshwater inflows provided by LCRA, we need to take a close look at all the water use in our region.

According to the 2010 census, this region has over 1.4 million people.  Every single one of us can play an important role in ensuring that we have water available to provide for critical needs at Matagorda Bay as well as meeting all the other water needs in our region.  We can all be part of the solution to helping this bay survive the drought.

To get the lay of the land, we took a look at different communities in this region to see what, if anything, they are doing to reduce their water usage.  Because so much municipal water use is for outdoor watering, we looked at the drought-time watering restrictions of communities receiving their water from LCRA.

Of the 15 communities that we looked at, we found that 6 still allow outdoor watering two times per week and that 9 allow outdoor watering one time per week.  These drought restrictions are solely to limit discretionary water applied to outside lawns and landscapes.

LCRA Blog Post Table 2_100113

LCRA is effectively choosing to sacrifice Matagorda Bay so that we can continue to pour water on our lawns.  Before we consider cutting off the subsistence levels of water provided to Matagorda Bay per LCRA’s Water Management Plan, all of our communities should implement more aggressive levels of their Drought Contingency Plans.  It just doesn’t make sense to threaten the future vitality of the bay/estuary system while we are not doing everything we reasonably can to save water upstream.

TCEQ’s rules are very clear in requiring that an applicant for emergency relief of this sort must show that there is “no feasible, practicable, alternative” to suspending environmental conditions.  LCRA and this region cannot meet that test at this time.  LCRA and their customers have not done everything feasible and practicable to conserve water and avoid the need to suspend or reduce flows for the bay.

All of us have an important role to play in ensuring that our water supplies last as long as possible.  The “pain” should be spread equitably across all users of water in this region.

The Texas Commission on Environmental Quality should deny LCRA’s application and require LCRA to manage all water demands equitably.  Matagorda Bay and the people who depend on it should not be required to shoulder the pain of the drought without more shared sacrifice by other water users.”  Please reduce your water use and, if you want to weigh in, one concerned citizen has started a petition to TCEQ that you can add your name to. Check back here for more updates.

State Officials Should Engage (Not Fight) Stakeholders on Endangered Species

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September 19, 2013

When you decide to dedicate your career to environmental advocacy, you know the job will involve tackling some difficult issues and you know many people are going to disagree with you.  I think that’s great. The best ideas usually include a variety of opinions and viewpoints.  While I welcome a debate on complex environmental issues, a recent op-ed on endangered species protection written by Jerry Patterson, Texas’ current Land Commissioner and candidate for Lt. Governor simply took my breath away.  While it’s possible there is more background his comments, it wasn’t included so I took it at face value.

I should start by stating that this post is based on two basic assumptions: 1) ecosystems are extremely complicated and it is often difficult to understand how we are all interrelated; such that the addition or deletion of a species can sometimes lead to extreme, unintended consequences; and 2) every species is important, not only for its part in the greater design, but as an individual unit.  Many medicines and other important discoveries have come from the animal and plant world.

Apparently, the federal government agreed with my assumptions when it passed the Endangered Species Act (ESA) in 1973.  The express purpose of the act is to “protect and recover imperiled species and the ecosystems upon which they depend.”  The law recognizes that the country’s natural heritage is of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people.” Essential in protecting our natural heritage is the protection of our species. Lately, there has been a tendency to present species issues as a false conflict of people v. critters.   It’s false because we need both.

Obviously, there is room for other viewpoints in the conversation; however, the level of vitriol and inaccuracy coming from Commissioner Patterson is worrying.  At the very least, it is not conducive to a professional or even civil discourse on the topic.  At its worst, it is a proclamation regarding the strictly one-sided approach with which he approaches issues related to species and habitat protection.

What’s Wrong with the Commissioner’s Numbers?

In his editorial, Patterson attacked lawyers and citizens who seek to protect endangered wildlife and their habitat referring the latter effort as a “racket” and calling the attorneys involved “radicals” and “zealots”.  In an effort towards full disclosure, I know many attorneys involved in these types of actions (although I know none at the organization mentioned in the piece) and contrary to Patterson’s characterization, they are actually decent, caring individuals who are generally concerned with the direction Texas water and land management is going. They are trying to compel agencies and government officials to adhere to the federal law. They are attempting to speak for those that cannot speak for themselves. I should also add that none of the attorneys I know are in it for the money.  A comparison of their fees compared to their industry defending counterparts would quickly disprove that claim.

One important reality overlooked by Commissioner Patterson’s argument is that species are often the canary in the coalmine for us – including property owners.  I am afraid to imagine what the Edwards Aquifer and those areas dependent on its spring flow would look like had a court action not required the formation of the EAA and a cap on pumping. I am confident the salamander and other protected species would not have been the only casualty.

Finally, the Commissioner states that the money to pay attorneys has not saved a single species. He provided no specifics to support such a strong allegation so I cannot respond to that directly, but there are ESA success stories.  The most famous is the Bald Eagle, but there are many others as well.  If the real concern being expressed is the capacity of U.S. Fish and Wildlife to manage this workload with existing resources, that is worth a discussion, but the solution isn’t to ignore threats to species or their habitats.

A Word About the ESA & Habitat Protection

It is important recognize that the protection of species is not a choice.  It is federal law.  Texas has already gotten crosswise with the ESA. As much as Texas panics at the idea of the federal government taking over state water management, it should be noted that this has never actually happened.  Unfortunately, narrow viewpoints such as those expressed by Commissioner Patterson invite just this result.

Often, when people rail against a consequence, they forget the path that got them there.   States, such as Texas, are given ample opportunities to make their own decisions governing water resources.  This is appropriate since we are in the best position to understand our supply and our needs; however, this power isn’t boundless and there are rules we must play by. One of those rules is to not allow an entire species of animal or plant to disappear forever.  That seems like a generous limitation in my opinion.  The federal government doesn’t get involved unless the state has failed in their duty.

Protection of habitat is a key aspect of ESA. Without much additional data, it is clear that if you took away our food, water, shelter and ability to reproduce, we wouldn’t last long.  The ESA makes it illegal for a person to “take” an endangered species.  The definition of “take” includes to “harass” or “harm”. These are defined by the regulations as “any act that creat[es a] likelihood of injury by significantly disrupting normal behavior patterns, including breeding, spawning, rearing, migrating, feeding, and sheltering” or “any act that kills or injures the species, or that significantly modifies or degrades the habitat of a species.”  As such, the ESA has extensive requirements to designate critical habitat with the understanding that extinction often happens when a species simply has nowhere to go.

Does the ESA impact individuals and private landowners? Absolutely it can, but so does the disappearance of a species.   Further, a quick study of property law reveals that there has never been an absolute right to your property free from any government limitation or interference.  These limitations range from the inability to build a mechanic’s shop in your home to the inability to increase the likelihood that a species gets annihilated. The reason for these limits is simple – the good of one cannot and should not outweigh the good of the larger community.

We have to cohabitate peacefully and respectfully, with one another as people, and with the other species that share our planet, because it benefits us to do so. With that in mind, the wise thing to do is to join together to deal with these issues and avoid unsupported name-calling.  Otherwise, where one goes, we all go.

LCRA to Take Matagorda Bay Off Life Support?

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September 19, 2013

UPDATE 9/19:

The LCRA Board voted 9-6 yesterday to seek emergency authorization from TCEQ to temporarily suspend freshwater inflows to Matagorda Bay.  Sierra Club / National Wildlife Federation statement and LCRA Board Resolution.

ORIGINAL POST 9/12:

Matagorda Bay is the second largest estuary on the Texas Gulf Coast.  The Bay stretches over approximately 350 square miles and, in a normal year, receives an average of 1.8 million acre-feet of inflows from the Colorado River. So far this year, bay inflows have been about 150,000 acre-feet.   Tuesday, the LCRA Board met to discuss the fate of Matagorda Bay.  More about that in a moment – but first let’s explain how we got there.

The Colorado and Matagorda Bay

As the stewards of the Lower Colorado River, the LCRA is responsible for managing the Highland Lakes and administering their Water Management Plan (WMP). Under the terms of the WMP, LCRA is committed to pass water from upstream through the Highland Lakes in order to maintain certain conditions in the Colorado River and Matagorda Bay. The water traveling to the Bay is known as freshwater inflows and provides essential nutrients and sediments and helps to moderate salinity conditions needed to support fish and wildlife along with the seafood businesses, hunting, fishing, and nature tourism activities that depend on that fish and wildlife. This bay, or estuary, is extremely important to marine fish and shellfish reproduction because, by some estimates, 97% of these creatures spend at least some portion of their life cycle in an estuary.

The WMP contains triggers for different releases based on the combined storage of Lake Buchanan and Lake Travis.  If the combined storage is below 1.1 million acre-feet, like it is now, LCRA manages water contributions to Matagorda Bay under a “critical” management scenario.  This means, unless there is heavy runoff downstream of the dams, they are only providing a small fraction of the water the  organisms in Matagorda Bay need to do well.  Water demand upstream coupled with continued drought conditions means the LCRA has to make some hard decisions about who is and isn’t going to receive water if it doesn’t rain soon.

The Matagorda Bay estuary system essentially is on life support at these critical levels of inflow and has been for several years. As a result, conditions there are already really bad and would only get worse without the needed inflows. As the Water Management Plan acknowledges, the critical level of freshwater inflows is designed to provide a small sanctuary area near the mouth of the river where organisms can persist during severe drought conditions so they will be available to repopulate the larger bay when better rainfall conditions return.

IMG_4275

Matagorda Bay Marsh

The Decision

On Tuesday, the LCRA Board considered asking the Texas Commission on Environmental Quality if LCRA could cut off even those critical inflows for the bay. Although the Board agreed to honor its commitment under the WMP and allow water to flow downstream to the Bay this month, it also decided to seek emergency relief to reduce or suspend the obligation to make those releases for the remainder of the year.  While it is good that the LCRA Board decided to honor its immediate commitment to provide water to Matagorda Bay,  the decision to seek emergency relief for the remainder of the year could put the future well-being of Matagorda Bay and the communities and businesses that depend on it at undue risk.

The Impact

Clearly, the region is experiencing a severe drought, but we should not put the long-term health of the estuary system and the local economies that depend on it at such high risk while other non-essential uses of water are being allowed to continue in the Lower Colorado basin.  We need to ensure that we provide water for both people and the environment.

This is not about critters versus people.  The amount of water that the Water Management Plan requires to be released for Matagorda Bay is very small compared to the amount that is regularly being applied to lawns in the basin to keep them green.  Besides, lots of people depend on a healthy Matagorda Bay for their livelihoods and quality of life.

Texans need to steward our precious water supplies carefully all of the time and especially during a severe drought like the one that we are confronting today. Although the time may come, if drought conditions persist, when even life-support flows for the bay must be reduced, that time has not yet arrived.

Next Steps

Critical level releases will be made for the rest of this month. In the meantime, the LCRA Board will meet on September 18th to decide whether they are going to ask TCEQ for permission to completely discontinue or just to reduce the commitment to provide critical inflows for the bay during the rest of the year. Without adequate inflows, the future health of Matagorda Bay could be unnecessarily compromised.  Stay tuned.

Texas Courts Start to Fill in the Blanks on Groundwater Law

By
September 05, 2013

About eighteen months ago, the Texas Supreme Court issued a historic ruling on groundwater law.  In Edwards Aquifer Authority (EAA) v. Day, the Day family and others sued the EAA claiming that the EAA’s regulation of the aquifer, which limited the landowner’s right to pump groundwater, violated their constitutional rights because the landowner owns the water under their property.  The court ruled in Day’s favor; however, the decision was as striking for what it didn’t say as for what it did.  While the court held that ownership of groundwater is a property right attached to surface ownership, the Court also held that regulation of the resource is permissible.  Questions remained as to how far regulation could extend before constituting an unconstitutional taking of private property.  Commentators, including us, noted that we would have to wait for other cases to make their way through the court to provide more information as to which regulations are permissible and which are not.  The Fourth Court of Appeals in San Antonio issued the first of these rulings last week.

Edwards Aquifer Authority v. Bragg was already being litigated when the Day decision was issued so, although the ownership question was answered by the Day case, it was unclear whether the particular facts in Bragg would constitute an illegal taking of property.  The quick answer is that the court ruled that it was a taking but, as always, the devil is in the details.  Because these cases are so fact dependent, it’s worth having a quick review of what happened before we talk about what it means.

The Bragg Facts

The Braggs own two pecan orchards in Medina County located over the Edwards Aquifer, which they purchased in 1979 and 1983 respectively.  The orchards are irrigated using Edwards water wells.  One of the wells was drilled in 1980 and the other in 1995.  These wells were drilled before the EAA regulations came into effect.  When the EAA started issuing permits, the Braggs applied for a water permit based on their historic use, which was approximately 229 acre-feet of water per year from the 1980 well and 193 acre-feet from the later well.

EAA issued a permit authorizing only 120 acre-feet for the first well and none for the second because it was drilled outside of the historic use look-back period of June 1, 1972, through May 31, 1993 as designated by the EAA’s authorizing legislation.  The Braggs sued the EAA in November 2006 alleging a constitutional takings of private property and other claims.  Last week, the Fourth Court held that the reduction in the Bragg’s water consumption forced by the EAA impacted the Bragg’s livelihood in such a way that it constituted a compensable taking.  The case will likely be appealed to the Texas Supreme Court and the ruling could and should be changed.

Just a word about takings

Private property is protected from governmental takings by both federal and state constitutions.  Although, the Fifth Amendment sounds simple, the application is far trickier.  Takings jurisprudence is complicated and confusing. It isn’t worth getting too bogged down in the case law here; however, a couple of important points need to be made.

A court’s decision that a regulation creates a takings does not mean that the regulation is illegal or cannot continue to exist.  It simply means that the regulation, while legal, encroaches on a person’s private property rights to such an extent that “just compensation” must be paid for the loss of those rights.  Of course, even though a regulation isn’t technically struck down, it can be effectively rendered useless if its continued application is too expensive.

One of the biggest challenges to these types of cases is the determination of “just compensation”.   When property has been owned for years, as in this case, the way the court calculates damages can result in radically different results.  Larger damage awards further threaten the ability of groundwater districts, including the EAA, to carry out their critical public purpose of keeping water sustainable for the future. It also raises an interesting point about how we value water.  On this point, this case adds more questions than it answers.

What the ruling means?

This ruling regarding the taking technically only applies to this particular set of facts; however, there may be many similarly situated landowners.  More importantly, it provides a data point that can be applied to future cases.  Unfortunately, this data point indicates that the courts are willing to value the impact of regulations on an individual landowner higher than the public benefit of effective groundwater management.  According to the court, this particular denial of a permit went “too far” and infringed on the Bragg’s property rights.  The court noted, but quickly dismissed, that the Braggs grow a water-demanding crop in a dry and drought-stricken part of the state.  The case creates a lot of questions for groundwater conservation districts attempting to manage aquifer resources and is particularly challenging for the EAA.  These are issues that the Texas Supreme Court must review as part of the takings balancing test.

The Texas Legislature created the EAA as a result of a federal lawsuit to protect several endangered species.  The permitting requirements regarding the historic use period and the pumping cap managed by the EAA were all set by the legislature, which puts EAA between a rock and a hard place if this ruling stands.  Regulations the EAA didn’t create have now led to a requirement to pay compensation to the Braggs. The concern is – how many other landowners may have a claim that may require payment.  System uncertainty not only threatens species, it also jeopardizes the property rights of current permit holders who have made reliances based on the current system.  By most accounts, the EAA has been a success story in term of aquifer sustainability. The population served by the Edwards Aquifer has thrived while the aquifer and the species dependent on it have survived.  This future, if this ruling stands, is now more uncertain.

Other groundwater districts also have cause for concern particularly as they attempt to promulgate new regulations to manage their resources.  They must attempt to do their job under the shadow of possible expensive litigation, which brings us to the real issue:  Texas courts should not be in charge of state groundwater management.   Almost one hundred individual districts with a range of funding are not going to be able to manage this uncertainty. Groundwater and Texans will suffer.  The state is dry and unregulated pumping continues in many areas.  This combination is not sustainable. The court’s limited job is to interpret property rights based on the current laws, but Texans need to be making big decisions about what needs to happen when there isn’t enough water for everyone. It is time for lawmakers to think about big picture policy measures that can give some certainty to groundwater districts so they manage this precious resource without constant fear of litigation. Their job is big enough without adding that to it.