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By Lana Robinson
Field Editor
Water and how best to protect and regulate its use to ensure its availability for current and future generations of Texans was explored in a panel discussion entitled "Water: More Precious Than Gold" at the Texas Farm Bureau Legislative Seminar last month in Austin. Texas Sen. Kip Averitt (R-Waco) and Rep. Robert Puente (D-San Antonio) shared compelling thoughts and concerns on the issue and steps the 79th Legislature is likely to take in light of recent developments in the ongoing water saga.
Sen. Averitt said testimony in water hearings around the state suggests there are a number of "rogue" underground water districts in Texas that are not following Chapter 36 of the water code and need more oversight.
"Quite frankly, there are very interesting stories about districts and how folks are being regulated by their local district," he said. "The Legislature is always going to defer to local districts, but the issue is complicated when the district has control over part of an aquifer or there is more than one aquifer in the same district."
Averitt cited Brownsville testimony that questioned the manner in which a local water board held its elections.
"I think the Legislature can have guidelines to decide how boards are elected, to make sure governance is fair," he said.
Puente agreed.
"I think we can have some uniform rules all districts must abide by, with room to tailor specific issues back home," he said. "Not every groundwater district can serve all of Texas. Parts of Texas are dry. Other parts are wet. There are distinct differences."
Puente said the biggest threat fledgling water districts face are lawsuits, which often occur when they are first implementing rules.
"When people object during the infancy of a district, the district must be able to sustain itself. At that point, they have barely started taxing or collecting fees. Any new district is just one lawsuit away from being bankrupt. We should provide some assistance to them when a lawsuit occurs, either through the Attorney General or by providing legal services," he said.
Averitt said S.B. 1, the statewide water plan legislation, has also placed additional expenses on water districts.
"Mapping and aquifer studies cost money that districts do not have. The State must provide resources to collect data. The Water Development Board has excellent ability to map areas of the state. It is incumbent upon the Legislature to provide resources to get that part of the job done in a way that helps us achieve our plan," he said.
Both lawmakers said basin of origin and junior water rights provisions passed in the earlier legislation have the potential to create problems. Bills have been filed in the House and Senate to repeal the junior water rights.
"Interbasin transfers do not just affect surface water, but also groundwater," said Puente. "The issue of doing away with junior water rights in a regional planning group has already been looked at. There is some thought that people should be allowed to sell water, but not sell the right. The basin of origin would retain ownership and can lease it. Collectively, the House and Senate can put surface water back into the mix, with these emerging groundwater markets."
Averitt would like to see the junior water right provision repealed altogether, but doubts that will occur.
"In my opinion, the junior water right is one of the most dangerous provisions in water policy today," Averitt said. "Because we can't move water around the state, groundwater is the target. Anyone can get a pump in the ground, if they are out of a conservation district. Some find unregulated aquifers and market that water. The people in West Texas depend on it, and are easy targets. The problem is we've handcuffed ourselves in planning because we can't transfer from one basin to another. There are surface concerns, but those with groundwater wells should be equally concerned. I believe it will eventually affect your industry—agriculture."
The Waco senator noted that approximately 26 other statutes to prevent water from being raided are currently on the books.
"Junior water rights was put on at the last hour without debate, or it would not have passed," Averitt said. "It should be debated. It helps some and hurts others. It probably won't be repealed, but it will be made more flexible. In my opinion, that's a band aid. We will have a water crisis by the 2007 Legislature if we don't address it this time."
There is some speculation that the State may try to regulate areas without groundwater districts where the century-old rule of capture in Chapter 36 of the groundwater code applies. The vulnerability of communities dependent upon these aquifers outside a water district have come to the fore recently when a private water marketing company approached the General Land Office with a proposal to purchase water from state-owned lands.
Sen. Averitt commented on a bill he sponsored in a previous session that would codify the rule of capture.
"It was dumb. It created a hailstorm, a horrible experience, but at least we are talking about it now. We must protect a resource that is currently unprotected. Water is too valuable not to be. Texas is the only western state that still has rule of capture. It has lived past its usefulness in many regards. Perhaps it should not be completely changed, but it needs some limitations. I think we should see how the historical use has changed. How we used it 100 years ago and how we use it now and 50 years from now are different," he said.
