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April 6, 2001

Brown introduces
long-awaited water bill

By Mike Barnett
Editor

State Sen. J.E. "Buster" Brown's long-anticipated water bill, S.B. 2, has been introduced in the Texas Senate and holds a mixed bag for Texas agricultural producers. However, with a few tweaks, it could be a good bill for rural Texas, said TFB Associate Legislative director Billy Howe.

"I think Farm Bureau and the other agricultural organizations can definitely offer up amendments that would make this bill a real asset to rural Texas and to agriculture to protect our future water needs," Howe said.

According to a press release from Sen. Brown's office, S.B. 2 would create the Texas Water Policy Council; optimize water resources for the management of surface and groundwater through conjunctive management; provide water financing solutions for Texas; and provide regulatory and financial incentives for alternative water supply and management strategies.

Howe said this bill really is meant to carry on what was started by S.B. 1, Sen. Brown's first piece of legislation, which addressed regional water plans.

"What the bill is trying to do is take the things that the legislators have seen since Senate Bill 1 was passed four years ago and fill the gaps," Howe said. "That's why we have several sections dealing with groundwater conservation districts and their management plans and things like that.

"We've had four years to see how it's working and now we can see where we need to tweak things. And a lot of the bill is tweaking."

One of the purposes of S.B. 2 is to create a water infrastructure fund to pay for projects proposed by the state's regional water plans. According to Howe, those proposed regional plans could cost up to $18 billion.

Of great help to rural Texas in S.B. 2 would be a provision for a rural water assistance fund to provide low interest loans and grants for rural water systems. Howe said current funding by the Texas Water Development Board is not adequate to where rural areas who need to upgrade the water/wastewater infrastructure can actually afford the loans.

S.B. 2 also creates several incentives for agriculture and for rural areas such as adding to current funding options for non-point source water quality projects, desalinization, brush control and weather modification projects.

However, the bill also presents some problems for Texas agriculture. Howe summarized those problems at the recent Leaders Day in Austin:

• The creation of groundwater conservation districts and ratification of temporary districts.

According to Howe, Sen. Brown did not put temporary districts into S.B. 2 unless there was a direct request from that temporary district.

"As this bill moves through the process, we want to include the folks that want to form districts and who want to ratify temporary districts," Howe said. "Because we all know how important it is for agriculture to have these groundwater districts in place to protect our water usage."

• The landowner petition process.

Texas Farm Bureau believes the Texas Natural Resources Commission (TNRCC) should not be the decision-maker on the creation of underground water conservation districts.

"If you go out and get a petition signed by a majority of landowners, if you want to manage your groundwater, TNRCC shouldn't do anything more than simply check and make sure you've got enough names on the petition," Howe said. "Then, they ought to certify it and let your temporary officers take the oath of office, educate your folks about a district and then have your confirmation election."

S.B. 2 allows TNRCC 120 days to hold a hearing once a petition to form a groundwater conservation district is presented. And after that hearing, they have 120 days to make a decision.

The arguments for using TNRCC as the decision-maker center around fears that a district may be formed, for example, to stop a hazardous waste site from going in, or to "build a wall" around a county, so water can't be exported.

Howe said those fears are unfounded.

"In S.B. 1, the legislature recognized that we had some districts formed for those very reasons," he said. "And we wanted to make sure that if you formed a district, you were actually going to do a good job of managing your groundwater. These things are in the law right now... We don't feel that really is a legitimate fear."

• Groundwater exports.

Howe said it's unfortunate that S.B. 2, as drafted, says "you cannot discriminate against an exporter. Period." The bill says someone who wants to export water from a district should be treated the same as water users in the district.

"His (Brown's) argument is, the aquifer doesn't care where you're using that water," Howe explained. "The aquifer only cares about how much water is being pumped out."

He said Texas Farm Bureau looks to surface water law protecting basin of origin as a precedent.

"Why shouldn't a groundwater conservation district be allowed to protect existing users in that district when water is going to be pumped out of there?" he asked. "That's the tact we're taking...that people that live there should be protected first. And then if there's surplus water, take the surplus water."

Also, concerning exports, the bill allows a district to assess a fee on exporters for water leaving a district.

"However, they're requiring 50 percent of the fee revenue be sent to the State of Texas," he said. "Right now we're opposing that. The purpose of the export fee is to help the area where the water's leaving. So we don't need to be sending 50 percent of it to the state."

Third, concerning exports, the bill proposes to strike the junior rights provision on interbasin transfers of water.

"My understanding, however, is the senator is willing to compromise on that...." Howe said. "Right now, our position is we want junior water rights in there."

So what are the prospects of Sen. Bill 2 passing without major changes? Get ready for a wild ride.

"S.B. 2 is about 143 pages," Howe said. "I had a House member tell me the other day he would like to reduce it down to three pages. There's going to be a lot of difference between the House and Senate on this bill. We'll see what happens in the conference committee."

Rep. Ron Lewis (D-Mauriceville) is carrying the legislation in the House.