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Sunday, July 16, 2000

Legislature to focus on water policies, issues
By Anna M. Tinsley
Scripps Howard Austin Bureau

AUSTIN — Water issues will be a top priority in next year’s legislative session as lawmakers search for ways to help drought-stricken areas and ensure there’s enough water for the future, key legislators said.

“We have to have a road map into the future that will be fair to all Texans,’’ said state Rep. David Counts, D-Knox City and chairman of the House Natural Resources Committee. “Water issues ought to be the priority behind redistricting.’’

The goal of 1997’s Senate Bill 1, which set out a statewide water conservation plan, was to protect and preserve water supplies for the future.

SB 1 requires Texas’ 16 regional planning groups to submit final water plans by October.

The Texas Water Development Board has until 2002 to incorporate that information into a statewide water plan, board spokeswoman Janice Cartwright said.

In the meantime, lawmakers must address other key water issues, said state Sen. J.E. “Buster’’ Brown, R-Lake Jackson and chairman of the Senate Natural Resources Committee.

Some water issues on tap for 2001:

Interbasin water transfers.

SB 1 in 1997 established “junior rights’’ for interbasin transfers, which means holders of the oldest water rights permits get water first.

A provision in SB 1 made water transferred out of a basin “junior’’ to all other rights in the basin.

That meant interbasin transfers wouldn’t be reliable in times of drought.

Certain plans in the works at the time, such as Abilene’s plan to build a pipeline and transfer water from O.H. Ivie Reservoir near Coleman, were grandfathered.

Last year, Brown filed a bill to repeal the junior rights provision to ensure that Texas communities could get needed water supplies from other parts of the state.

After lengthy debates and one filibuster, the measure passed the Senate but died in the House.

Because the junior rights provision remains in effect, Counts said, metropolitan areas are raiding some communities’ underground water supplies.

“As long as you have these (junior water rights), you’ll have people coming from metropolitan areas to rural areas buying up groundwater rights,’’ Counts said. “We may have to modify this a little.’’

Brown said he plans to work again next year to eliminate the junior rights provision.

“We have to get to the point where we have the movement of water from one point of the state to another,’’ he said. “We’ve got to do away with the junior rights provision of SB 1.

As long as it’s there, we will see continued pressure on groundwater and rule of capture.’’

State Rep. Rob Junell, D-San Angelo, said he’ll listen to the arguments about changing the rights but can’t imagine that he’d favor changing the law.

Junell, who was instrumental in adding the junior rights provision to the bill in 1997, said he wants to protect people’s rights and doesn’t want someone to transfer water out of a basin to the detriment of other rights holders.

“I think there’s going to be a fight over it,’’ said Junell, chairman of the powerful House Appropriations Committee.

Groundwater districts.

A number of small rural counties statewide want groundwater districts to protect their water in case of water raids by fast-growing metropolitan areas.

Last year, lawmakers approved letting more than a dozen counties create temporary underground water conservation districts.

Lawmakers gave the districts limited powers, Brown said, so they couldn’t interfere with regional planning mandated in 1997.

Lawmakers are likely to give full powers next year to communities that prove they have a plan to manage their aquifer, Brown said.

Counts said these districts are vital in protecting smaller, rural communities from cities or large water users who shy away from interbasin water transfers because of the junior rights provision.

“Cities didn’t want to pay the kind of money it would require to buy interbasin water transfers and then have their rights cut off,’’ Counts said. “So some are moving into areas that have groundwater, but no districts, and contracting for amounts of water.

“We need to find a way to relieve some of the pressure caused by the junior water rights provision of Senate Bill 1,’’ Counts said. “We would like for any district to set up a district if they have groundwater, and an interest in doing it, without interference from the state.’’

Rule of capture.

Texas law does not treat underground water the same as than water in lakes, rivers or streams.

The state controls “surface water’’ and people must get permits for the right to use that water.

But groundwater falls under the “rule of capture,’’ which means landowners can pump as much as they can use without regard for the effects on neighbors.

This law was put to the test when lawyers for rural East Texas landowners and a bottled-water company faced off before the Texas Supreme Court in 1998.

The landowners asked the justices to change the state’s long-standing rule of capture and require reasonable use of the water.

Landowners had complained that Ozarka Natural Spring Water Co. dried up their wells because the company began pumping from a spring in Henderson County in 1996.

The court ruled in favor of Ozarka and justices said the court wasn’t the proper entity to regulate underground water.

That right, they ruled, belongs to the Texas Legislature.

Small communities statewide that depend on aquifers were left worried that their water resources could be depleted, Counts said.

“There should be some way to protect stakeholders if there’s one person who can drain a single aquifer to the detriment of everyone else and not violate the law,’’ Counts said. “We are trying to come up with a more manageable, fair way to work with the rule of capture.’’

Junell said this is a complicated law that has a great deal of impact on Texans. Because of that, he said, “the burden is going to be on people who want to change the law to show that private property owners are not harmed.

“My philosophy is to err on the side of being conservative,’’ Junell said. “Before we change anything, we need to make sure we understand all of the ramifications.’’

Brown said he’s not ready to say the rule should be altered.

But he’s evaluating suggestions proposed in committee hearings — such as giving people a right to the water below the surface based on how much acreage a person owns.

“I don’t have any intention of filing a bill to change the rule of capture, but I expect that issue will be before the Legislature,’’ Brown said. “It’s a vital part of this puzzle.’’

Contact Scripps Howard Austin Bureau writer Anna M. Tinsley at (512) 478-9644 or tinsleya@scripps.com.