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October 6, 2000

2001 Legislative session...
Water, redistricting
are top ag concerns

By Mike Barnett
Editor

Ask for the top two issues facing agriculture in the next legislative session and those in the know will mention water and redistricting.

The importance of those issues was stressed repeatedly recently at Texas Farm Bureau's legislative conference where a "Who's Who" of state officials, including Lt. Gov. Rick Perry, House Speaker Pete Laney, House Agriculture and Livestock Committee Chairman David Swinford and a host of others, previewed the upcoming session for Farm Bureau leaders.

Redistricting, which happens every 10 years, is a legislative exercise to redraw the political boundaries for the Texas House, Senate, State Board of Education and Texas members of the U.S. Congress.

Agriculture stands to lose, the general consensus says, because population is growing much faster in urban areas than rural areas. "From a political standpoint, the most important fact is, all of the numbers say 87 percent of Texans now live in metropolitan areas," said Farm Bureau's Gary Joiner. "The power will go where the people are."

Water—specifically groundwater—will be a more immediate concern for the industry, for a couple of reasons.

First, the Texas Supreme Court has thrown the rule of capture doctrine back into the legislature's lap. A case against Ozarka drinking water was the impetus. Basically, the plaintiffs asked the Texas Supreme Court to abandon the rule of capture and move to a reasonable use doctrine, where an adjoining landowner could be held liable if he pumped your well dry. The Texas Supreme Court said it is the duty of the Texas Legislature to set the state's groundwater policy. However, the court warned the legislature that if the state's groundwater policy did not prevent another case like Ozarka from reaching the court, then the Court would address the rule of capture.

Second, Senate Bill 1, the water bill passed in 1997, has two provisions pressuring groundwater. The bill calls for a regional water planning process, where all major water users in Texas are supposed to project over the next 50 years what their demands are and how they're going to get the water to meet those demands. The bill also put a junior water rights provision on inter-basin transfers of surface water. That provision says in times of surface water shortages, recipients of those transfers are the first to be cut off. This has caused big users such as the city of San Antonio to up the search for groundwater, putting further pressures on this precious resource. The junior water rights provision is subject to repeal in the next session.

So, stirred by these issues, what's going to happen water-wise in the 2001 Texas Legislature? A consensus group, formed of the 30 major groundwater stakeholders, including Texas Farm Bureau, was requested by Lt. Gov. Rick Perry to study groundwater and suggest how policy needs to be changed.

TFB's Billy Howe said several "hot button" issues were identified in the report, which the TFB Board of Directors voted to sign in late September. There are some policy development issues out there in the counties for you, as well," he told county Farm Bureau leaders.

Those "hot button" issues include the following:

• How should groundwater districts be created? There are now three options. First, the Legislature passes a bill. Second, landowners sign a petition and submit it for a Texas Natural Resources Conservation Commission (TNRCC) decision. Third, TNRCC can recommend to the legislature that a district be formed in an area that will have critical groundwater demands over the next 25 years.

Howe said some in the consensus group want to add to the option where TNRCC can form a district in areas where there's a potential groundwater shortage. Under that plan, the only thing stakeholders would vote on is how revenue would be derived. "That's going to be controversial, because right now, if TNRCC says you need to form a district, you have a confirmation election where the local people get to vote on whether or not they want to create that district," he said.

Texas Farm Bureau is working hard to streamline the second option—the landowner petition process—that currently takes a year and a half to two years to pass at the TNRCC level. Under the plan, groundwater districts could be formed in no more than five or six months.

•Texas groundwater law doesn't give groundwater districts clear authority to assess pumpers a fee on the amount of water they are pumping. Most groundwater districts in Texas are funded by property taxes. Certain groups in Texas think a district not funded by property taxes should be able to assess a pumping fee for their revenue stream. According to Howe, these groups also think a district ought to be able to have an option to assess property taxes, pumping fees, or both. "The only kind of consensus the group could come to them with, is that this would apply only to new districts," Howe said. "There would be no production fee authority on old districts. And we would have a $1 per acre foot cap on ag production fees."

•Exemptions in current law on wells that can't produce more than 25,000 gallons a day. The problem: subdivisions and ranchettes. "Every one of those lots in a subdivision or ranchette, their wells are exempt from district regulation as well," Howe said. "And that's causing a problem in several parts of the state. Whereas you used to have a ranch next to you with two or three wells, suddenly you've got 200 wells next to you..."

Howe said one proposal circulating in the TFB policy development process would address this issue. That proposal says that any well on a piece of property less than 10 acres would be regulated by a groundwater district. A well on a piece of property over 10 acres would be exempt. TFB delegates at the state convention would vote on such a proposal if it survived the policy development process.

•Groundwater marketing and groundwater exports. The question is, should a groundwater district be able to prevent a private property owner, or a city, as a private owner, from moving groundwater outside the boundaries of a district?

"We are trying to work toward a balanced solution right now that recognizes that once you get that water to surface, it's your private property and you should do what you want with it," Howe said. "But, at the same time, we feel like we need to protect rural areas, too, and not dry them up. So it's a very hard balance to strike."

He said the consensus group has suggested allowing groundwater districts the ability to restrict the pumping of an exporter if the aquifer cannot at certain times support that pumping. Also, exporters are asking that any new permits for pumping in that district carry the same restriction. "That would protect existing users, but you restrict all new users," Howe said.

(Editor's note: We will take a hard look in future issues of Texas Agriculture at water issues and their potential impact on agriculture.)