Return to TFB Main Page
Return to Current Edition
Texas Agriculture Archive

March 7, 2003

Liquid Assets

A hard look at Texas water...

(First of three part series)

By Lana Robinson
Field Editor

"When the well's dry, we know the worth of water." Thankfully, those words, penned by Benjamin Franklin some 250 years ago, sank in before an irreversible water crisis set in here in Texas—a state where early water disputes brought bloodshed and more recent ones have dammed up courts. Faced with the realities of expanding populations and shrinking water supplies, Texas lawmakers, over the past five sessions, have navigated through legislation on a course towards the protection, management and development of the state's liquid assets.

Historic modernization of water law culminated with passage and implementation of SB 1 in 1997 and SB 2 in 2001. Although the first round of regional and statewide water planning was completed in 2002, stakeholders are not all in the same boat, and it hasn't been smooth sailing. Agriculture, in particular, sees some potentially rough waters upstream and is exploring additional protections.

Groundwater vs. Surface Water

Basically, water rights in Texas flow in two directions: groundwater and surface water. According to the Texas Water Foundation, groundwater law, which governs any water that is underground, is fairly limited. Groundwater is treated much like a mineral or oil and gas, as part of the surface rights. Early Texas lawmakers based the water law on the English common law "rule of capture," which allowed landowners to pump as much without regard of how that may impact a neighbor's water supply. Surface water, on the other hand, is generally owned by the state. All natural streams, rivers, lakes, watersheds and bays of the Gulf of Mexico are considered property of the state, with two exceptions: surface water can be used for 1) domestic purposes; and 2) for livestock. Texans who own property next to a body of water are free to make reasonable use of it.

Although groundwater and surface water are miles apart by legal definition, they are closely related in that laws governing one many times impact the other in unintended ways. For example, Senate Bill 1, the landmark water legislation for the Lone Star State passed in 1997, included 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 inter-basin transfers. Because of that, and the potential for water shortages facing parts of the state, former Sen. J.E. "Buster" Brown (author of SB 1), has had second thoughts about the junior water rights provision.

"As a result of that provision, the pressure has now moved to groundwater," Brown, who resigned from his Texas Senate seat last August, told Texas Farm Bureau leaders at their 2002 Leadership Conference, giving them food for thought regarding subsequent policy development. "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."

While protecting the basin of origin, Brown said he supported 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."

Junior water rights views differ

Rep. Robby Cook (D-Eagle Lake), who sat in with Brown as a panelist in the same forum, doesn't share Brown's views that the junior water rights provision is pressuring groundwater supplies. A rice farmer, Cook 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."

Cook further suggests the junior water rights provision has actually caused big cities like San Antonio to look at new, innovative ways to supply its water needs.

"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."

TFB policy seeks balance

In December, delegates at Texas Farm Bureau's 69th annual meeting carefully contemplated and crafted 2003 policy, based on the premise that inter-basin transfers will harm agricultural production within the basin of origin by increasing the cost of surface water. Because of regional water planning, the organization sought a policy that strikes a balance between surface water and groundwater to provide the greatest benefit to all the citizens of the state of Texas. Texas Farm Bureau believes prohibiting inter-basin transfers while allowing the exporting of groundwater will not provide that balance, and will harm those dependent on groundwater while benefitting those who use surface water. For that reason, Texas Farm Bureau opposes any inter-basin transfer that would leave the basin of origin with unmet future water needs. In fact, TFB policy opposes any inter-basin transfer that does not meet the following five-pronged test: 1) A surcharge should be required on the transfer to provide monies to assist agricultural producers with satisfying their demand for water; 2) The receiving basin has implemented a water conservation plan; 3) The receiving basin has exhausted all other reasonable means of providing their water needs; 4) The receiving basin will assist with conservation efforts in the basin of origin; and 5) A junior priority date for any inter-basin transfer that would harm existing water right holders or third party surface water users in the basin of origin.

Feeling the currents of water trends in Texas, delegates at the recent TFB annual meeting saw a need to move beyond the all-inclusive rule of capture, and proposed a number of additional changes in both ground water and surface water policy to address water marketing and potential water shortages. Those changes will be explored in Part II.