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November 3, 2000

WATER:
Interbasin transfers a difficult issue

By Mike Barnett
Editor

Interbasin transfer: the premise is simple. Those that have surface water sell it to those that don't. Under old Texas law, if you had a right to surface water, then you could sell it outside your river basin. Before 1997, Texas had 80 interbasin transfers in existence.

Enter Senate Bill 1, the landmark water legislation for the Lone Star State passed in 1997. A part of that bill was a provision called junior water rights. Under that provision, those who sold their surface water right outside their river basin became the most junior right in their basin. In other words, in times of water shortage, that junior water right would be the first to be cut off. Since that provision became law, there have been zero applications for interbasin transfers. Because of that, and the potential for water shortages facing parts of the state, Sen. Buster Brown (author of SB 1) is rethinking the junior water rights provision.

"As a result of that provision, the pressure has now moved to groundwater," Brown, current chairman of the Senate Natural Resources Committee, said at the recent Texas Farm Bureau Legislative Conference. "So the people who are in need of water are seeking it. And those people who are in the business of moving water are turning to acquisition of land to get the rights to the water below the surface to market that water.

"Therein comes the next problem. How do the people who are dependent upon that water for their living, keep that water from being moved to another part of the state? When you start setting artificial obstacles in the path of a normal development, which is a water market, then you cause different things to happen that are not expected."

Here's the scenario and issues in a nutshell, according to the state senator. Surface water rights are private property. Does the holder of the surface water right have the right to market the property he owns? Where interbasin transfers are concerned, the legislature has basically said no.

Move on, then to groundwater. The person who owns the land has the right to take the property on it (or under it) and that's a property right that can be transferred. Should the law respect the property right of that individual landowner to use that groundwater for the purpose that he chooses? Right now, the law says yes.

"Will we change that?" Brown asked. "And that involves the question of how we manage our water. So we've got to be very, very careful as we start looking at changing the rule of capture, giving groundwater districts the ability to regulate water which moves outside their district.

"Different regulations that we think might look good, we've got to make sure they don't take away that property right that landowners and farmers and ranchers have today."

Different views

Brown was part of a panel discussing water issues for the upcoming session. Joining him were Rep. David Counts, chairman of the House Natural Resources Committee, and two other members of that committee, Rep. Robert Puente of San Antonio and Rep. Robby Cook of Eagle Lake.

All four support the notion that any interbasin transfer should not harm the basin of origin. But that's where the agreement ends.

While protecting the basin of origin, Brown supports provisions to allow for situations where water needs to be moved to other areas for agricultural, municipal or other purposes.

"My concern is, we affected the marketing of water," Brown said. "So if I owned surface water rights to a river...and I decide to sell that, that value went to zero from whatever it was. Because no one is going to buy the right for that water if it is the first to be interrupted. We need to move from that interference with market to a system that does fairly regulate and keep it from harming the basin of origin."

Puente also supports another look at junior water rights. The San Antonio representative admits that provision has forced the Alamo City to look for other sources of water.

"What it also did, it put a tremendous, tremendous amount of pressure on groundwater," he added. "Since we cannot get interbasin transfers anymore, we are looking at groundwater supplies. That is the next option that we have. And we are looking at Bastrop County and Lee County for additional groundwater supplies.

"There is good and bad out of the junior rights prohibition. So the next session, I'm going to look and see about amending it...not necessarily repealing it. I think it does serve a purpose. We do have to protect the basins from which the water comes."

Rep. Cook doesn't share Brown's and Puente's views that the junior water rights provision is pressuring groundwater supplies. However, he thinks it has expedited the emphasis on groundwater.

Groundwater was looked at as a commodity by T. Boone Pickens and others before Senate Bill 1, Cook said.

"Before the price of gas went up, a little quart of Ozarka water was more expensive than a gallon of gas," he said.

"All of a sudden some folks out there that are entrepreneurs, started looking at water as a way to make money. You basically have the right to drill a well if you don't have a groundwater district in place. That is why it is so important for us to look at groundwater conservation districts in areas that are not regulated—not necessarily to stop exportation or to keep someone from transferring water, but just as the same as surface water, just an additional protection."

And Cook, a rice farmer, likes the protection junior water rights infer.

"When the Colorado River runs through the four counties I represent, then on down through Matagorda County to the Gulf...and when you look at the numbers on where that water would come from that would come from agriculture...it could possibly come from the rice industry...we did not look at the junior water rights provision as an impediment," he said. "The fact that San Antonio may not be able to get water from our area, or it may make it a little harder for them...or Houston, or Corpus Christi...the folks in our basin looked at it as an added protection to those of us in the basin."

In fact, the junior water rights provision has forced big cities like San Antonio to look at new, innovative ways to supply its water needs, he said.

"In my opinion, the junior water rights provision has forced our large cities to look at the harder options and methods," Cook said. "And, through the regional planning process, look at other alternatives that don't have a negative impact on agriculture or rural communities that don't have the opportunity to fend for themselves."

Chairman Counts said now is the perfect time to look at interbasin transfers: "All of our basins are nearly dry. So you look at the worst case scenario. If you give superior rights to those people transferring it out, and it dries up, the local people are the first ones to get cut off. And the people who make the contracts later, they're the last ones to get cut off."

Counts said he would support interbasin transfers if the gaining basin had exhausted every option, such as building reservoirs or looking at desalinization.

"If they've done what they can, I think it behooves us as Texans to share our water," he said. "But I have a problem with an area, just because they have all the money they can generate, to come to the rural areas or any other area and take that water. When you turn clean water into green money it destroys the balance of whole communities."

Good ideas needed

All four panelists agreed that negotiation and compromise will be needed to solve the junior water rights controversy. And all agree that while their districts are important, coming up with a plan for Texas' future water needs is paramount. Ultimately, Rep. Counts said solutions will come from the people.

"Smart ideas are not coming from the legislature," Counts said. "I respect Sen. Brown and the Senate and I respect my colleagues here and in the House, but the real solutions for these major problems are going to come from the gin offices, the Dairy Queens and the churches."