Bastrop Advertiser file photo
The Colorado River provides many resources to the Central Texas area, including water, wastewater facilities, electricity and recreation. Bastrop Advertiser file photo
By CYNDI WRIGHT AND DENIS MCGINESS
Austin Community Newspapers
More than half of Texas’ water comes from underground aquifers. The rest comes from surface water, or lakes and rivers. Across the state, as in many other states in the country, water is fast becoming a most precious resource – and lines are being drawn in the sand as to how the draining resource will be partitioned out as more people move into already densely-populated areas, especially in Central Texas.
Who controls this precious resource and what gives them the right to do so? Is there anything average citizens can do to ensure they and their descendants will have access to this necessary component of human life?
Water sources across Central Texas are varied and come from a variety of groundwater and surface supplies.
Bastrop County gets almost all of its usable water from the Carrizo-Wilcox and Simsboro aquifers, while Round Rock receives water from the Edwards Aquifer, as well as purchasing surface water from the Brazos River Authority. Round Rock has partnered with Cedar Park and Leander to create the Brushy Creek Regional Utility Authority in order to purchase water in Lake Travis, managed by the Lower Colorado River Authority, although this water is currently in reserve. Pflugerville utilizes the Colorado River as its primary source of water, and Lake Travis residents receive water from Lake Travis and the Highland Lakes, both managed by LCRA. Residents of West Lake Hills, Rollingwood and the surrounding areas mostly get their water through various providers via contracts with the City of Austin, which gets it from the Colorado River, also managed by the LCRA.
The dust flies as Lost Pines Groundwater Conservation District general manager Joe Cooper pulls his pickup truck up to the gate at the Heart of Texas water well in Lee County. As he steps out, he’s talking about the water under his feet. Everyone knows it’s there, but nobody knows exactly how much there is. That might change soon as data from computer monitoring systems, coupled with advanced 3-D modeling, begins to paint a picture of the underground aquifers in the district’s purview.
The more information Cooper has about the amount of underground water, the better he can regulate pumping, a primary responsibility for the district whose charter is “to protect the water supply for the residents of Bastrop and Lee counties.”
Groundwater provides about 60 percent of the 16.1 million acre-feet of water for the state, according to the Texas Water Development Board. Underground water conservation districts, created by the Texas Legislature, are the only tool available to regulate local groundwater supplies. Ninety-six districts are spread across the state, encompassing 174 counties.
Depending on your point of view, groundwater districts are either champions of local water conservation or a roadblock to growth in other parts of the state. In particular, the Lost Pines district has been targeted as a “water mecca,” as Cooper puts it, for water marketers who want to sell the liquid gold to burgeoning municipalities along the Interstate 35 corridor from Pflugerville to San Antonio.
Water is already exported from the Lost Pines district to Travis County by Aqua Water Supply Corp. and to areas in Williamson County by Manville Water Supply.
Currently, the district has permitted approximately 82,000 acre feet per year and estimates show that 24,000 acre feet have been pumped. There are requests for an additional 125,000 acre feet per year, a number that does not include the request from the LCRA.
“There is no cap to how much you can permit, but there is a cap on how much you can pump. We probably won’t be able to give everybody everything they want,” Cooper explained.
The district, which covers 970,240 acres in the two counties, is solely concerned with groundwater in the major and minor aquifers in the district, including the Sparta, Queen City, Carrizo, Calvert Bluff, Simsboro and Hooper.
Surface water use and permitting is governed under different regulations and statutes than groundwater, according to Cooper, and although they are both water sources and interconnected for the most part, they are considered two totally different entities in Texas. Surface water is owned by the state and a landowner can’t use it without the state’s permission.
Rule of Capture
Water rights pertaining to groundwater are complicated, although it all starts with a very basic tenet called the Rule of Capture, a rule that is older than Texas itself and which allows a landowner the right to pump and capture as much water as they want from under their land, despite the effect that might have on the neighbors.
“Rule of capture, in its purest form, is the law of the biggest pump,” explained Cooper. “The biggest, deepest pump gets the water, and the shallow wells dry up.”
Adopted by the Texas Supreme Court in 1904, the Rule of Capture removes any liability a landowner has to his neighbors if his pumping depletes their wells. The rule was challenged in 1999 by a landowner whose wells had dried up because of pumping by Nestle Waters North America, bottlers of Ozarka brand natural spring water.
Although the Texas Supreme Court upheld the Rule of Capture in the Ozarka case, the state legislature began work on new laws that eventually led to local water management through groundwater conservation districts. HB 1763, which went into effect in September 2005, and in particular Chapter 36, known as the Texas Water Code, built the framework for the rulemaking and permitting procedures for groundwater conservation districts.
Robert L. “Robby” Cook III, a lobbyist for Lost Pines GCD, was the primary author of the bill.
“Given enough time, groundwater districts will work like I think the legislature intended,” Cook said earlier this year. “They are meant to provide local control and oversight and I think it can be done, but it is taking a while.”
Cook’s reference to the ongoing struggles of groundwater districts relates to the statutes they follow, sometimes imposing cumbersome processes that include working with an alphabet soup of agencies, groups and entities to develop their Desired Future Conditions and water management plans.
“We are a Chapter 36 district and must abide by those statutes,” Cooper said. “It tells us what we can and can’t do.”
Lost Pines is governed by 10 citizens, five each from Bastrop and Lee counties, who have been appointed by their county commissioner’s courts to serve as directors for a term of four years. The board members, following their charter to protect underground aquifers from overpumping, have been steadfast in their resolve.
In March 2010, in response to a request for tens of thousands of acre feet of water, the board voted for a moratorium on new, non-exempt well permits in the district, effectively shutting off the tap in one of the most sought after water sources in the state.
The move angered water marketers and a few landowners who wanted to sell their water for export, but it was a right the board said they were granted in Chapter 36 of the Texas Water Code. The board said they could halt further well permitting until their DFCs were developed and approved by the Texas Water Development Board.
DFCs, a statutory requirement for the district, were developed late last year in cooperation with Groundwater Management Area 12, which consists of five groundwater conservation districts within the same aquifer region covering 14 counties. DFC numbers, created by water modeling techniques, are used by the TWDB to determine the amount of groundwater that can be pumped from the GMA’s shared aquifers in the next 50 years.
Just weeks after posting their DFCs, they were challenged by End Op, a water marketing company, for not allowing enough withdrawal from the aquifers, and by Environmental Stewardship, a Bastrop-based environmental group headed by Steve Box, who said they allowed too much water to be pumped.
The TWDB rejected the challengers, and just weeks ago, Lost Pines received notice that their DFCs were approved and they received preliminary Modeled Available Groundwater numbers, allowing the district to move forward with a water plan and the eventual lifting of the moratorium.
Despite the forward movement, there are still challenges for the district. In February, the Texas Supreme Court ruled in Day vs. Edwards Aquifer Authority, a decision that has been heralded as a victory for landowners and private-property rights activists. The courts said landowners have an “ownership right” to the water “in place” beneath their land in the same manner as oil and gas. The ruling also said that “landowners do have a constitutionally compensable interest in groundwater,” which may lead to regulators, like water districts, having to pay up when they deny or limit a request to pump.
“Do you really own it?” Cooper asks. “Water is like air; it’s kind of transient and it moves around a lot and it’s hard to put your head around, but everyone needs it. Ultimately, it will be decided by the courts.”
Cooper said the district’s water resources are finite and the board plans to pump to its DFCs, then turn off the taps, a move that could affect consumers and water suppliers.
“Groundwater districts work well at the local level and they are doing what they were created to do. They are conducive to better state planning in the future,” said Cooper. “But they aren’t the solution to the state’s water problems. Everybody should be conscientious of how water is used every minute of every day. We need to be better stewards of our water resources.”
Cooper, who has been with Lost Pines for 12 years, will step down at the end of the year as general manager.
In Central Texas, many areas such as Round Rock, Pflugerville, Lake Travis, Leander, Cedar Park and West Lake Hills are provided much of their usable water by area water authorities, such as the LCRA or the BRA.
River authorities in Texas are semi-quasi state agencies established by the legislature and given authority to develop and manage the waters of the state. These authorities are given powers to conserve, store, control, preserve, utilize and distribute the waters of a designated geographic region for the benefit of the public.
The BRA was created by the Texas Legislature in 1929 and was the first state agency in the United States created specifically for the purpose of developing and managing the water resources of an entire river basin. The LCRA was formed by the Texas Legislature in 1934.
River authorities are not taxing entities. They are self-supporting through revenues generated by the sale of water, electricity and other services. Some also receive the occasional government grant.
The LCRA has contacted Cooper about securing 10,000 acre-feet of water per year for cooling their power plants and for downstream obligations along the Colorado River.
In August, the river authority announced their intention to buy the 34,000-acre Alcoa strip mining property near Rockdale, an area they describe as having “significant water rights and is situated atop a prolific groundwater aquifer.”
Of the 34,000 acres in the Alcoa property, 10,000 of those are in Lee County and under the LPGCD.
“LCRA said they would be seeking water options for the next century, and this is a bold move in that direction,” Cooper said. “We will wait to see what the impact is and what permits they will request from us.”
Staff members Cyndi Wright, Denis McGinness and freelancer Phil Cook contributed to Part 4 in this water series.
Milestones in water agency development
1913 – Texas Board of Water Engineers authorized
1953 – Texas Water Pollution Advisory Council authorized
1957 – Texas Water Development Board authorized
1961 – Water Pollution Advisory Council becomes Texas Water Pollution Control Board
1962 – Board of Water Engineers becomes Texas Water Commission
1965 – Water Commission becomes Texas Water Rights Commission
1967 – Water Pollution Control Board becomes Texas Water Quality Board
1977 – Water Rights Commission, Water Quality Board and Water Development Board merge into Texas Dept. of Water Resources
1985 – Dept. of Water Resources splits into Texas Water Commission and Texas Water Development Board
1993 – Texas Air Control Board (authorized 1965) merges with Water Commission to form the Texas Natural Resource Conservation Commission.
2002 – TNRCC changes its name to Texas Commission on Environmental Quality (TCEQ).
BELOW: Joe Cooper, Lost Pines Groundwater Conservation District general manager, uses an electronic depth indicator to check a domestic exempt well in southern Bastrop County. Data from private wells, along with high-tech well monitoring at major production wells, is important to understanding the overall health of aquifers that are under the district’s purview.