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Laws and Regulations Applicable to the Edwards Aquifer A Brief Legislative History A decades-long battle over who owns, controls, and uses Edwards Aquifer water has not been as pitched recently, but it is still not quite over. We got into the situation because historically there were several fundamental flaws in Texas water law which have only recently been partially remedied. One of the main flaws in Texas water law was that for most of Texas’ history, groundwater was treated as if it were completely separate and different from surface water. In the 1800s, the movement of groundwater was deemed by courts to be unknowable and in the realm of the "occult", so legislators refused to make any laws regarding it use. Today we know that surface and groundwater are interconnected and inseparable, but for over a century the "separation myth" was a major hurdle in the development of an integrated and conjunctive body of water law in Texas (Kaiser, 1987). The differences in how surface water and groundwater were regulated were profound. Surface water is the property of the State and its use is highly regulated, while until recently Edwards groundwater had always been the property of whoever's land it was under and there were very few regulations. To use surface water, one must apply for a permit and then rights are assigned based on a "first in time, first in right" method. With groundwater, however, the "right of capture" prevailed for many decades. This is also called the "law of the biggest pump", because anyone could pump as much water from under their land as they wanted as long as they put it to a beneficial use. So, just one person could use ALL of the Aquifer water if they could pump it out and put it to use. This was painfully pointed out to many users when Ronnie Pucek opened his fish farm in 1991 and began using as much water as one fourth of all the people in San Antonio. So for a long time, we had a situation in which everyone had infinite rights to a resource that was, in fact, finite. We had more "rights" than we have water. The fact that the law did not recognize any connection between surface water and groundwater only complicated matters. As use of groundwater from the Edwards became greater over time, water that used to come out of the ground at springs was now being pumped from wells and eventually placed back in the rivers by wastewater treatment plants, mainly those owned and operated by the San Antonio Water System. For decades the State had been busy assigning surface water rights to people whose water had decades ago originated as springflow, but now it originated as wastewater treatment plant discharges. Since this water originated as groundwater and is owned by the City, it has no obligation whatsoever to release any of it downstream, and this created a big potential problem for the State. People who had been assigned surface water rights might not have any water at all if the City decided to reuse its wastewater instead of discharging it downstream. And in recent years San Antonio has become very proactive in developing uses for its treated wastewater. Luckily for those downstream, San Antonio has said it is committed to being a good neighbor and intends to continue release of enough water to satisfy downstream water rights. After the region experienced a terrible drought in the 1950s, numerous water planning studies were undertaken but little progress was made toward management of the Edwards Aquifer or toward development of other water resources. As a response to the 50s drought, the Edwards Underground Water District was created in 1959 and it was charged with conserving and protecting water in the Aquifer. However, it had no authority to restrict groundwater pumping, and for over 40 years it was mainly a data collection agency. In 1961, the State released the Texas Water Plan that discouraged over-reliance on the Edwards and recommended several new reservoirs, of which only Calaveras Lake was ever constructed. An update to the 1961 plan was produced in 1966, with a final version in 1968, and it outlined an ambitious program of statewide reservoir construction with those around San Antonio being in Phase I. Reservoirs to meet San Antonio’s needs were the Cuero I, Cuero II, Goliad, Cibolo, and Cloptin Crossing. The most significant contribution of the 1968 Texas Water Plan was the determination that based on historical rates of recharge and discharge, withdrawals from the Edwards should not exceed 400,000 acre-feet per year. As we shall see, this number stood the test of time until 2008. In May 1991, the Lone Star Chapter of the Sierra Club filed a lawsuit against the U.S. Fish and Wildlife service claiming the Service was not adequately protecting endangered species that depend on the Aquifer. The Sierra Club argued that Comal and San Marcos Springs could dry up if unrestricted pumping continued and that would constitute a "taking" as defined by the Endangered Species Act. The Sierra Club asked that the Service be required to ensure minimum springflows to protect the endangered species. After a two year trial, in January 1993 Federal Judge Lucius Bunton of the U.S. District Court in Midland ruled in favor of the Sierra Club and others who had joined the suit along with the Club. The court found that if unrestricted withdrawals continued, endangered and threatened species would be "taken" as defined by the Act. The court also found the Fish and Wildlife Service had failed to implement a recovery plan for San Marcos and Comal Springs and had caused risk or jeopardy to the endangered species. Judge Bunton ordered that springflow must be maintained even during a drought like in the 1950s. He directed the Texas Water Commission to prepare and submit a plan to ensure springflows, and he directed the Service to determine springflow levels that would result in "take" or "jeopardy" of the species. The Service subsequently determined that level was 150 cubic feet per second at Comal Springs; however, a study commissioned by the Service and released in May 2000 predicted that even at flows as low as 30 cfs, 60% of the fountain darter's habitat would be maintained. This could eventually have far-reaching impacts and give regional officials more options than simply cutting back use when flows at Comal Springs decline. In the 1993 ruling, Judge Bunton also announced the Texas Legislature had to enact a regulatory plan to limit withdrawals from the Aquifer or he would implement his own plan, which would mean the federal government would be in charge of the Aquifer. Even so, the federal government is usually reluctant to exert control when matters can be handled effectively by local governments. So the State was given a chance to act and in May 1993 the Texas Legislature passed Senate Bill 1477 which replaced the Edwards Underground Water District with the Edwards Aquifer Authority. The Bill authorized the new agency to issue permits and regulate groundwater withdrawals from the Edwards. It essentially ended the right of free capture in the Edwards region and it laid out the legal framework for assigning ownership of water to people who had been using it for many years. The bill also created means to market groundwater rights by making permits transferable (with some restrictions), and it set a cap on permits at 450,000 acre-feet annually, to be reduced to 400,000 acre-feet in 2008, the number identified in the 1968 Texas Water Plan. It also provided for short term permits for additional use when rainfall and recharge are high, required the Authority to adopt a Critical Period Management Plan to reduce pumping during droughts, and addressed the question of preserving endangered species habitats by requiring the Authority to provide continuous minimum springflows. In August 1993, before the
new agency could be seated, the U.S. Department of Justice put the
legislation on hold because it wanted to determine if the new law violated
the Votin The new Authority set about the process of establishing rules by which the goals of SB 1477 will be met and pumping demands on the Edwards reduced. Initial regular permits were to be issued by the Authority based on historic use from the Aquifer from 1972 to 1993. Over 1,000 applications were filed, and the total amount of water applied for was much more than the 450,000 acre-feet cap. The Authority had the difficult job of deciding who got how much. Meanwhile, several challenges to the new rules were issued, and the Authority’s rules ended up being invalidated twice. In one case, the Living Waters Artesian Springs (the catfish farm) sought an injunction against processing of the applications. It claimed the rules were adopted in violation of the Texas Administrative Procedures Act, which requires reasoned justification in writing before rules can be adopted. In December 1998 all the Authority’s rules that had been adopted up to that time were held to be invalid. In another challenge, a pecan farmer from Medina county filed a suit under the Texas Private Real Property Rights Preservation Act, claiming the Act required the Authority to perform a Takings Impact Assessment (TIA) before adopting rules and issuing permits. Basically, the argument was the Authority had not adequately assessed the impact of what it was doing. Judge Mickey Pennington ruled in favor of the plaintiffs and again invalidated the Authority’s rules. After having all it's rules invalidated twice, the Authority began working very hard to do whatever necessary to come up with a "bulletproof" set of rules that could survive all legal challenges. The Authority spent almost a year following the process outlined in the Texas Administrative Procedures Act which includes assessment of the impact of rules on small businesses, government entities, and the public. In January 2000 the Authority got a boost when an appeals court ruled that Judge Pennington erred in deciding the rules were invalid because they violated the Property Rights Preservation Act. Final Rules were adopted by the Authority in late 2000. On January 9, 2001 the first permanent Edwards Aquifer pumping permits were issued. It was a major milestone development for management of the Edwards Aquifer. Members of the Stein family, who drilled one of the first irrigation wells in Medina county, were handed the first permit to pump 224 acre-feet from the Aquifer each year. Overall, 308 permits were issued granting rights to 133,186 acre-feet, about a third of the volume the Authority is authorized to allocate. More final permits were issued in February 2001, leaving about 250 contested permits to be sorted out in court. In February 2002 the Texas Supreme Court issued a landmark decision that decided once and for all the Authority's powers to regulate pumping. In an appeal of the pecan farmer case, the court ruled the Property Rights Preservation Act has an exception for regulating groundwater, and the EAA need not prepare a Takings Impact Assessment before adopting rules. The 1994 legislation that established the Edwards Aquifer Authority included conflicting provisions regarding total pumping and issuance of rights that were not resolved until 2007. The agency was required to limit pumping to 450,000 acre-feet per year by 2004, and to reduce pumping to 400,000 acre-feet by 2008, but it was also required to issue minimum annual pumping rights to users who could prove their use during the prior 21 years. Those rights turned out to be far in excess of 450,000 acre-feet. After failed attempts in two legislative sessions to address the problem, the EAA attempted to resolve the issue on its own in December of 2003 by creating a class of interruptible rights. The Authority designated about 10% of most pumping permits as "junior rights" which could not be used if Aquifer levels dropped below certain triggers. In January of 2007 this scheme was dealt a serious blow when Texas Attorney General Greg Abbott issued an opinion that concluded the Edwards Aquifer Authority did not have the statutory authority to reduce the withdrawal rights of permit holders or issue interruptible "junior" withdrawal rights. EAA officials said they didn't consider themselves bound by the Attorney General's opinion and would seek to have the legislature ratify the junior/senior permitting scheme by statute. Later in 2007, the Legislature did indeed finally address the issue, but not by ratifying the EAA scheme. Over the objections of environmentalists and regional entities like the Guadalupe-Blanco River Authority, the legislature raised the pumping cap to 572,000 acre-feet. ** More Info ** For more on the history and factors that led up to the allocation of Edwards groundwater rights, see Dr. Todd Votteler's article entitled "The Little Fish That Roared: The Endangered Species Act, State Groundwater Law, and Private Property Rights Collide Over the Edwards Aquifer". The article was originally published in the Winter 1998 edition of Environmental Law and is available for downloading in .pdf format on the Votteler Archives page. Laws and Regulations Applicable to the Edwards Aquifer A thorough understanding of the laws and regulations applicable to the Edwards Aquifer is essential to get a grasp on the complex legal issues involved. They are also important for understanding how we are planning on managing the resource in the future. Reading them is about the most boring endeavor you'll ever undertake but it is an extremely important one! The Endangered Species Act Much of the 1990s litigation involving the Edwards Aquifer centered around the federal Endangered Species Act and its provisions. Everyone who reads it (including federal judges) will end up with a different interpretation and different conclusions about what it is supposed to do and how far it is supposed to go. Proponents say it is an absolutely critical piece of environmental legislation that ensures protection for many endangered plants and animals. Others say the Act has been used simply to assert control over natural resources, not to protect species, and they argue that only cute, fuzzy animals have been protected. If you count bacteria and microbes, then there are probably endangered species living under virtually every rock! So then, is there room for people in the United States or does the ESA essentially make the entire country a big museum? Does the ESA say that every species has to be preserved forever in its natural habitat without any regard for cost or impact on humans? Read it and decide for yourself! THE FEDERAL ENDANGERED SPECIES ACT Senate Bill 1477 and House Bill 3189Texas Senate Bill 1477 is also a very important piece of legislation regarding the Edwards Aquifer. This was the Bill that ended the right of free capture in the Edwards region...landowners no longer have the right to pump as much water from under their land as they can put to a beneficial use. In support of the Bill, many argued that something had to be done because the right of free capture meant water management was a complete free-for-all and we had more "rights" than we have water. Others insist the Bill constitutes a taking of vested property without any compensation. Initial court challenges resulted in a finding that 1477 was unconstitutional because it replaced the elected board of the Edwards Underground Water District with a new appointed board of the Edwards Aquifer Authority. House Bill 3189 remedied this situation and provides for an elected board. JUDGE'S COMMENTS ON TEXAS SENATE BILL 1477 TCEQ AND EAA Rules Rules set forth by the state of Texas and the Edwards Aquifer Authority are also very important for managing the resource. Rules are NOT laws, but in reality there is little functional difference and rules essentially carry the weight of law. The idea behind rulemaking is that lawmakers cannot possibly address every single issue, so rulemaking authority is delegated to the staff of appropriate agencies and committees composed of interested people from around the state. Even a single individual can initiate rulemaking if you can get the proper agency in motion. Back in '95 when the web was new I used to post rules here because they weren't online anywhere else, but now the TCEQ (formerly the TNRCC) and EAA both do a pretty good job of posting their rules on their own web sites, so here are links to their Rules pages: SOLE SOURCE AQUIFER DESIGNATION An aquifer can be named a Sole Source Aquifer by the Administrator of the Environmental Protection Agency under Section 1424(e) of the Safe Drinking Water Act if the aquifer supplies 50% or more of the drinking water for an area and there are no reasonably available alternative sources should the aquifer become contaminated. The intention of the program is to prevent federal funding of projects which might contaminate an aquifer which is the sole or principal source of drinking water for an area. The Edwards Aquifer was the first to be designated a Sole Source Aquifer in 1975. After designation, EPA may review projects with federal financial assistance which are located in the project review area named in the designation. The project review area includes the surface recharge area of the aquifer and the area overlying the subsurface portions of the aquifer which are connected with the recharge area. It may also include the watershed area which contributes to the surface water flowing across the aquifer. The purpose of the project review process is to identify federally assisted projects which might contaminate the aquifer and then to work with the applicants to modify those projects so as to prevent contamination of the aquifer. As a final step, federal funding can be denied if the project is not modified to remove the hazard to the aquifer. For more about Sole Source Aquifers, check
out the page on the subject by
EPA
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