Edwards Aquifer News

For over thirty years artist Arlyn Ende has created textiles for architecture. His work is noted for rich color, the use of intriguing materials, and a certain response to compelling sites. His approach is to research a location and consider how his work can create a meaningful effect on people who will live with it. A retired physician and his wife commissioned Mr. Ende to create a large artwork for their new home in San Antonio and gave him the freedom to choose subject, materials, design concept, and colors.

He began with a virtual tour of San Antonio from his laptop in his Tennessee studio. Since he loves the urban waterway/walkway known as the River Walk that runs through the heart of the city, he was drawn to look deeper into the source of the water. Everything he read, and all the illustrations he viewed, showed a concern for this vital resource and its endangered denizens. That squared with his own environmental views, and he felt at that point he had found his subject matter. His San Antonio patrons were thrilled with the choice, and he even imagined that everyone who saw the finished piece would be encouraged to think about this irreplaceable treasure and be moved to work toward protecting it.

"It may seem a bit odd to portray water by using paper", said Ende, "yet I felt the need for a sculptural surface, and handmade paper offered the flexibility to achieve that dimension in a unique way." Soft, torn edges created an undulating effect for the water, and sharp cut edges of stiffer papers allowed for pinching, pleating and perforating to suggest earth and rock. For the overall design concept he settled on a section of earth with the Aquifer flowing through it. The upper part of the artwork may be seen as the Earth's crust; the lower areas the Earth's stony mantle. Between the two flows the Edwards Aquifer.

To symbolize the endangered aquatic species, he suggests salamanders, darters and beetles as simple elliptical shapes, and the Texas wild rice as a leafy area within the water.

The finished piece is currently on exhibit in a gallery in Sewanee, Tennessee; sometime this fall, it will be installed in the San Antonio home of the owners.

In 2007, the Texas legislature directed the EAA and other state and municipal water agencies to participate in a collaborative, consensus-based stakeholder process to develop a plan to protect the federally-listed species dependent on the Edwards Aquifer. This is known as the Edwards Aquifer Recovery Implementation Program (EARIP). The group was given a 2012 deadline for preparing an approved Habitat Conservation Plan for managing the Aquifer to preserve the listed species at Comal and San Marcos Springs. The Legislature also directed that the Plan must include recommendations regarding withdrawal adjustments during critical periods that ensure the federally-listed species associated with the Edwards will be protected.

In May, the group appeared ready to disintegrate, with members walking out of meetings and leaders suggesting the process might not be able to continue. But by June, the process appeared to be back on track. The group asked Dr. Thom Hardy of Texas State University to help determine what flows are needed at the springs to protect the endangered species, and it also asked HDR Engineering to evaluate several options for mitigating the flows at the springs.

At this time, the EARIP group is considering a potential package of options that range from recreation management to large scale engineered solutions like Aquifer Storage and Recovery and Recharge/Recirculation schemes.

The concept of a hydrologic divide between the San Antonio and Barton Springs segments of the Edwards Aquifer Earlier has long been accepted - that's why they are thought of as two separate segments. But in April 2010 a study commissioned by the Guadalupe-Blanco River Authority found that groundwater level data indicates the groundwater divide dissipates and no longer hydrologically separates the two segments during major droughts and current levels of pumping. As a result, there is potential for some groundwater to bypass San Marcos Springs and flow toward Barton Springs during major droughts. The groundwater divide appears to be influenced by recharge along Onion Creek and the Blanco River and is vulnerable to extended periods of little or no recharge and extensive pumping. See the complete study.

On March 11, The Aransas Project (TAP) followed through on its December 2009 notification to the State that it intended to file a federal lawsuit over management of the Guadalupe and San Antonio Rivers (see previous Newsflash). The TAP will ask the federal government to establish a habitat conservation plan that would supersede the state’s water management.

During the 2009 drought, 23 whooping cranes died on the Texas coast, and TAP attorney Jim Blackburn said “The harm that the whooping cranes have experienced is a direct result of TCEQ’s failed oversight of its water rights permit program in the Guadalupe River Basin where too much water is being take out of the Guadalupe and San Antonio rivers, especially during low flow conditions.” Others, including the TCEQ, argue there are a number of factors that affect whooping crane mortality, and many of the deaths could have been due to poor conditions at the crane’s summer home in Canada which caused them to arrive in Texas in a weakened state.

Water managers at the Guadalupe-Blanco River Authority, the San Antonio River Authority, and the San Antonio Water System are concerned the lawsuit could disrupt their own environmental protection efforts as well as two state planning processes that are currently underway to evaluate the environmental needs of the rivers and the coastal bays and estuaries. In 2001 the Texas legislature established the Texas Instream Flow Program (TIFP), and in 2007 it created the Environmental Flows Advisory Group (EFAG) and required the TCEQ to adopt by rule appropriate environmental flow standards for each river basin and bay system in the state. For the Guadalupe/San Antonio basin, the Advisory Group’s deadline to make recommendations to TCEQ is the fall of 2011. Studies underway under the TIFP process will take several more years, but the legislation includes a mechanism to revise flow standards when better information becomes available under an adaptive management scheme. Both the TIFP and the EFAG processes focus on future surface water permits – neither process includes a mechanism to curtail or impact existing surface water rights. TAP argues that is exactly what is needed. If successful, the TAP lawsuit could force a major redistribution of water rights in the Guadalupe/San Antonio basin.

The San Antonio Water System, City Public Service Energy, and the Guadalupe-Blanco River Authority all petitioned the court to intervene in the lawsuit on the side of TCEQ. SAWS and CPSE were denied, while GBRA was granted intervener status.

On February 17 the Texas Supreme Court heard arguments in a case that could dramatically affect ownership and control of all Edwards Aquifer water.

For over 100 years, unlimited pumping from the Edwards was legal under the "rule of capture", which gave every landowner unrestricted rights to pump as much as they could put to a beneficial use. Today, the fundamental premise of Edwards regulation is that landowners in the Edwards region no longer have the right to capture unlimited amounts of groundwater. Since 2001, the Edwards Aquifer Authority has been issuing pumping permits that are essentially an allocation of groundwater rights. In February 2002 the Texas Supreme Court issued a landmark decision that many believed had confirmed once and for all the Authority's powers to regulate pumping (see details on Laws & Regs page).

But now, it appears the issue may not be so settled after all. In 2008, Justice Steve Hilbig of the 4th Court of Appeals ruled that landowners involved in a lawsuit with the EAA have some vested ownership rights of groundwater beneath their land and their "vested right in the groundwater beneath their property is entitled to constitutional protection." The ruling, along with a similar ruling in a case in Del Rio, set up a Supreme Court showdown over the rule of capture in Texas.

The case involves landowners Burrell Day and Joel McDaniel, who purchased land over the Aquifer and filed a permit application for 700 acre-feet, but were awarded a permit for only 14 acre-feet. They were unable to show historical use for the larger amount. They appealed, and also added constitutional claims they were entitled to 1,834.8 acre-feet, or two-acre feet for each of the 917.4 acres they own. They claim that under the common-law rule of capture, they have a vested right to water, even though they never produced it or put it to a beneficial use, and the EAA committed a “taking” when it issued them a permit for less than they could pump in absence of regulation.

In other states and in England where the common-law rule of capture originated, courts have uniformly concluded that landowners do not own groundwater prior to its production and capture. In Texas, the courts encouraged the Legislature to take action to provide for meaningful management and regulation of Edwards water, and it did so by creating the EAA and assigning rights that gave preference to historical use. As early as 1955, justices noted the rule of capture was outmoded, since the movement of groundwater, which was previously thought to be mysterious and unknowable, was no longer so. The court has modified and limited the rule several times to restrict malicious pumping and protect nearby landowners from subsidence. The court has also indicated on several occasions that it would abandon the rule of capture if Legislative solutions were unsuccessful at creating fair, effective, and comprehensive management of groundwater.

In court briefings, the EAA outlined several reasons why the court should affirm there is no vested interest in groundwater prior to production and use. First of all, in the 1904 case that established the rule of capture as the law in Texas, the landowner lost. A Mr. East had sued the Houston & T. C. railway company because the railroad had drilled a large and deep well to supply locomotives and a machine shop, which caused Mr. East’s well to go dry. The only party that had any ownership rights was the railroad. So it is sort of a conundrum to argue in favor of vested water rights based on a case in which one party had none. Secondly, the right to exclude others is one of the most fundamental elements of a property right, and under the rule of capture, no one has the right to do so, therefore the rule of capture does not afford any vested rights. The EAA also pointed out that Day & McDaniel’s claim, if successful, would unfairly advantage landowners who had never used water over those who had invested money and sweat to make the water productive, since both would end up with rights of equal value. In any case, there is simply not enough water to assign two-acre feet to the landowner of every acre, and doing so would cause major disruption to cities and industries that are vital to the region and its population.

If the suit is successful, which does seem unlikely, it would have large impacts for the Edwards and also for the State's preferred method of groundwater management, local Groundwater Conservation Districts. In 2001 the Legislature made it easy to form such districts by local petition and gave them the authority to regulate spacing and production from wells. At present, almost 100 such districts have been formed, and all are participating in a process in which local residents determine the "Desired Future Conditions" (DFCs) for their aquifer. In most cases, what residents desire for their aquifer will involve pumping limits, so the entire concept of GCDs is in direct conflict with the rule of capture. Texas is struggling to find a balance between private property rights and protection of common natural resources.

In 2008, your webmaster Gregg Eckhardt was asked to write a chapter for a new college-level textbook on the engineering solutions that have been applied to keep Edwards Aquifer springs flowing. I wrote about two SAWS projects, and also the regional Recharge and Recirculation strategies being considered. Both of the SAWS projects, the Recycled Water System and the Aquifer Storage and Recovery project, have reduced Edwards pumping during critical times and have become important Aquifer management tools that help to maintain springflows and protect endangered species. In the future, Recharge and Recirculation strategies may provide new tools to add enhanced recharge to the Edwards and hold it in storage until needed for water supply and for protection of springflows and downstream flows in critical times.

The book, called "Groundwater Hydrology of Springs" rolled off the presses in December and is being distributed worldwide by Butterworth-Heinemann.

On February 9 the board of the EAA directed the staff to draw up new rules that would limit impervious cover in the Aquifer recharge zone to 20%, with up to 30% allowed in some cases. A wide body of scientific literature indicates that allowing impervious cover to exceed a threshold of 10 to 20 percent can degrade water quality.

The EAA has several times delayed development of water quality rules because it was concerned such action would result in a private property rights backlash and legislative retaliation. Although the enabling legislation of the EAA seems to authorize that agency to implement water quality rules, the legislation's author has said it does not. At present, there is no institutional or regulatory framework that can effectively protect Edwards water quality. For a complete discussion of the water quality protection issue, see the Aquifer Protection section on the Hydrogeology page.

In 2001, plans to construct a PGA resort over the Edwards recharge zone in northern Bexar county sparked the most bitter and divisive debate in San Antonio's history. Over the next six years, there were angry late night council meetings, hectic negotiations with PGA officials, a petition drive and a narrowly averted public vote, a lawsuit, legislative wranglings, a revised deal with a different PGA organization, and fake "residents" brought in to live on the property to vote in favor of creating a special taxing district. The new resort finally opened in January of 2010 as the JW Marriott San Antonio Hill Country Resort and Spa and the Tournament Players Club golf courses. The resort has far more rooms and meeting space than any other in town, and two new 18-hole golf courses are expected to draw both tourists and new businesses. Aquifer advocates remain concerned about dramatic new growth in the area that may pose risks to the Aquifer. EAA board member Enrique Valdivia said "The big development decisions get made for the interest of the develoment community. It's understandable, but I wish there was more balance in San Antonio than there is."