ATTENTION TEXAS LAND OWNERS! Water - Rule of Capture

[Dover]

Symposium will explore this issue and possible changes on June 15, 2004.

1
Vol. XIV, No.2 A quarterly publication of the Texas Water Development Board Spring 2004

Symposium on the ※Rule of Capture§
By: Ruben Ochoa

At the Texas Capitol on June 15, 2004, the
Texas Water Development Board (TWDB)
will hold an all-day symposium offering legal,
social, and historical commentary on the ※rule
of capture,§ a doctrine of private property
rights to groundwater first enunciated by the
Texas Supreme Court in the Houston & Texas
Central Railway Company v. East (East) case,
decided by the Court on June 13, 1904.
※We＊re holding the conference almost 100
years to the day after the rule of capture
became the law of Texas,§ says Bill Mullican,
Deputy Executive Administrator of TWDB＊s
Office of Planning. ※Intense competition for
our State＊s groundwater resources has greatly
amplified interest in the rule of capture and
the role it has and will play in Texas. An
important aspect of exploring the future of
the rule of capture is to explore its past. The
symposium will go in both directions〞one
hundred years into the past and one hundred
years into the future.§
In deciding the East case in 1904, the Texas
Supreme Court relied upon English common
law principles articulated in the 1843 case
of Acton v. Blundell (Acton). In Acton, it was
stated that, ※In the case of a well sunk by a
proprietor in his own land, the water which
feeds it from a neighboring soil does not
flow openly in the sight of the neighboring
proprietor, but through the hidden veins of
the earth beneath its surface; no man can tell
what changes these underground sources have
undergone in the progress of time.§ added]
In East, the Texas Supreme Court gave
particular weight to the following passage
from an 1861 Ohio Supreme Court decision
(Frazier v. Brown): ※＃The law recognizes no
correlative rights in respect to underground
water percolating, oozing, or filtrating
through the earth＃.Because the existence,
origin, movement, and course of such waters,
and the causes which govern and direct their
movements, are so secret, occult, and concealed
that an attempt to administer any set of legal
rules in respect to them would be involved in
hopeless uncertainty, and would, therefore,
be practically impossible.§
Dr. Robert Mace, director of the TWDB＊s
Groundwater Resources Division, will present
his thoughts on the level of understanding
of groundwater hydrogeology that has been
achieved since the Acton and East cases.
The Texas Supreme Court decision in the
East case basically gave Texas landowners
the right, absent malice, to pump as much
groundwater from their land without regard
to harming their neighbors. Harry Grant
Potter, III, former Texas Special Assistant
Attorney General, will present his views
on the history and evolution of the rule of
capture in Texas since the 1904 East decision.
What is no longer secret, occult, and
concealed today is what some may describe as
the practically impossible task of fashioning
water policy that reconciles the private
property interests associated with the rule of
capture with the rapidly increasing public
interest in limiting or modifying the rule
of capture to protect the state＊s increasingly
overburdened groundwater resources.
Scheduled to present their thoughts on how
to deal with this and other contemporary
issues related to the rule of capture are
University of Texas Professor Emeritus
Corwin Johnson and attorneys Michael J.
Booth and Doug Caroom.
The Texas Senate Select Committee on Water
Policy, established in 2003 by Lieutenant
Please see Rule of Capture - continued on page 2
2
SSSSSSSS
Governor David Dewhurst, was specifically charged to
study policy and management issues related to the rule of
capture; an effort that may help guide future policies. In
somewhat similar fashion, the symposium will provide
a forum to identify issues that may affect future policies
regarding the rule of capture with a panel discussion
entitled: ※The Next 100 Years.§ The panel will feature
recognized experts on issues related to groundwater
regulation, groundwater conservation districts, marketing,
and resource sustainability.
Presenters at the rule of capture symposium may help
provide answers to a number of questions regarding the
rule of capture and others related to groundwater pumping
in general such as those posed by Dr. Robert Glennon,
professor of law and public policy at the University of
Arizona, in his critically acclaimed book, Water Follies:
Groundwater Pumping and the Fate of America＊s Fresh
Waters. Dr. Glennon will be on hand to present highlights
from his new book. (See a review of Water Follies, this
issue).
Contact/Registration:
Registration is $25.00 per person. Registration covers
conference materials including a paperback copy of Water
Follies: Groundwater Pumping and the Fate of America＊s
Fresh Waters, a book by University of Arizona law professor
Robert Glennon and a compilation of papers submitted
by participating presenters. Registration can be made via
the Texas Water Development Board website located at
www.twdb.state.tx.us. The registration deadline is
May 14, 2004.
For additional information regarding the symposium,
please contact Cindy Ridgeway, symposium coordinator, at
[phone]
[email protected] or
Ted Angle at [phone]
[email protected].
Rule of Capture - continued from page 1
Rural Water Assistance Fund
Continued Success
By: Lana Lutringer
Since the introduction of the Rural Water Assistance Fund
(RWAF) program in 2002, the Texas Water Development
Board (TWDB) has approved $35.16 million in lowinterest
loans to rural political subdivisions for water-related
infrastructure projects.
New Program Development
In 2003 the 78th Texas Legislature, through House
Bill 1875 (HB 1875), recognized the special wastewater
needs of rural Texas and expanded the uses of the RWAF
program originally for water only to include wastewater
projects. Program rules expanding the use will become
effective May 11, 2004. Those rural political subdivisions
that can access these funds include nonprofit water
supply corporations, districts, or municipalities serving a
population of up to 10,000, or that otherwise qualify for
federal financing, or counties in which no urban area has a
population exceeding 50,000.
Additional $25 Million Available
The TWDB continues to access the tax-exempt private
activity bonds made available through the State＊s Private
Activity Bond Program as the means of financing RWAF.
According to federal law, a state is allowed to make taxexempt
private activity bonds available for certain types of
privately-owned projects that benefit the public, such as
those financed through the RWAF. Federal law restricts
the available amount of these bonds each year, and in
Texas the bonds are awarded through a lottery system.
Reservations for a portion of the annual Private Activity
Bond cap are filed each October and allocations are granted
the following January 1. Once an allocation is granted, the
TWDB has 180 days to sell and close their Private Activity
Bond allocation. On March 30, 2004, the TWDB closed
its third $25 million in bonds to finance water-related and
wastewater projects through the RWAF. There is currently
approximately $58 million in RWAF funding available.
Using RWAF Loans
RWAF loans can be used to fund water-related capital
construction projects that may include line extensions,
overhead storage, the purchase of well fields, the purchase
or lease of rights to produce groundwater; water quality
enhancement projects such as wastewater collection and
treatment, and interim financing of construction projects.
A rural water utility may also use the fund to obtain
water or wastewater service supplied by a larger utility
or to finance the consolidation or regionalization of a
neighboring utility. RWAF lending rates have ranged from
5.61% to 4.91%, with borrowers benefiting from a 40-year
repayment term, as well as receiving sales tax exemptions for
projects financed by the fund.
For more information on the RWAF program, contact
Warren Rose at the Texas Water Development Board, 512-
463-7853 or by e-mail at [email protected].
3
TWDB Welcomes its Newest Board Member
By: Carla Daws
Governor Rick Perry appointed James Herring to the
TWDB in January 2004. Mr. Herring is President and
CEO of Friona Industries, L.P., the fifth largest cattle
feeding operation in the United States. He and his seven
partners own four feed yards in the Texas Panhandle,
feeding 425,000 head of cattle each year. The company＊s
feed manufacturing division services Texas, Oklahoma,
Colorado, and New Mexico through three state-ofthe-
art manufacturing plants. The company
averages $450 million in total annual
sales.
A native Texan, Mr. Herring grew
up in Amarillo, and earned a BBA
in Finance from the University
of Texas and an MBA from
Harvard. He decided to enter into
the cattle industry in 1969. ※The
cattle business started moving into
the Panhandle in the mid-60＊s,§ he
says. ※A lot of people were becoming
involved back then, so I decided to join
them. Now 30% of all fed cattle in the United States are
grown in the Panhandle.§ The entrepreneurial nature of the
business is what attracted him. ※I liked the independence of
it 每 you can get as big as you want, so long as you are willing
to take the risk.§
Mr. Herring is past President of the Texas Cattle Feeders
Association and has served as a Director of the National
Cattleman＊s Beef Association. He serves as a Director of Cal
Farley＊s Boys Ranch, Inc. He also serves on the Rabobank
North American Agribusiness Advisory Board, and the
University of Texas College of Business Administration
Advisory Council. Mr. Herring has recently been appointed
to the Don and Sybil Harrington Cancer Center Board of
Directors, and to the Board of Directors of the Amarillo
Area Foundation.
Mr. Herring likes to hire young people so that they have a
chance to grow and develop professionally. ※I believe that
young people must obtain the building blocks that will lead
toward success. It takes time to accomplish these building
blocks, such as education and experience, but you cannot
grow successfully without them,§ he says.
When not at work, Mr. Herring and his wife
Margaret enjoy spending time with their
family. In March, they welcomed
their fourth grandchild 每 and first
granddaughter. In addition to
being a full-time Grandpa, Mr.
Herring is also an avid golfer
with a two handicap. He is an
accomplished fly fisherman who
never keeps them 每 ※I throw them
all back.§ He has fished all around
the world including Canada, Alaska,
Venezuela, the Bahamas, Christmas
Island, Florida, Texas, Maine, Georgia
and South Carolina.
Mr. Herring is pleased to join the TWDB where he can ※ be
of service to the great State of Texas, where I was born and
raised.§ His experience with agriculture makes him keenly
interested in water. ※The Ogallala Aquifer is directly tied to
the cattle feeding business and is very important to the cattle
industry and the people of the Panhandle,§ he notes. He
has been impressed with the people and the work done by
the TWDB. ※I am fascinated with the complexity of water
issues in Texas. We are at an important time in our history.
Water is an important subject at an important juncture in an
important State. People are going to have to be well versed in
water issues and be wise in their approach to managing these
issues. I hope to try to be a reasoned voice.§
Water Conservation Implementation Task Force Activities
By: Stacy Pandey
The Water Conservation Implementation Task Force (Task Force) members were appointed by the Texas Water Development
Board (TWDB) in September 2003 to fulfill the mandate of Senate Bill 1094, 78th Legislature, to review, evaluate, and
recommend optimum levels of water use and conservation for the State. The Task Force is developing a best management
practices (BMP) guide and creating a draft legislative report by its November 1, 2004 deadline. The Task Force has developed
thirty-one draft BMPs that are available for public comment due no later than June 1, 2004. All BMPs should be available for
review by April 2004. The Regional Water Planning Groups and political subdivisions responsible for water delivery will use this
guidebook to plan water conservation efforts.
The Task Force has drafted a plan to establish a statewide public awareness program for water conservation, recommended a
gallon per capita per day (GPCD) methodology, and has adopted recommendations regarding the task of establishing per capita
water use targets and goals. It has also recommended that the Texas Legislature establish aWater Conservation Advisory Council
to provide ongoing support of statewide conservation activities and updates to the BMP Guide. For more details on these
recommendations, visit TWDB＊s website at http://www.twdb.state.tx.us/assistance/conservation/taskforce.asp
4
Texas Water Monitoring
Congress 每 2004
By: Robert Bradley
During September 15-17, 2004, the Texas Water
Monitoring Council will sponsor the fifth Texas Water
Monitoring Congress in Austin. This meeting offers those
interested in water monitoring an opportunity to discuss
issues, network with colleagues, share successes, and return
to their own programs with new ideas.
The conference agenda will include plenary presentations
and focus group discussions. This working conference will
provide a forum for effective communication, cooperation,
and collaboration among individuals and organizations
involved in Texas water monitoring. Exhibitors will be
sharing the latest water monitoring technology and services
at the Congress.
The plenary session will include presentations of
solicited papers selected by the Council. Presentations
will include ground- and surface water monitoring, data
management, education, volunteer programs, and other
topics. The core of the Congress will be five focus groups
that will convene in breakout sessions to discuss Quality
Assurance/Quality Control, Public Outreach, Technology
and Technological Solutions, Groundwater Issues, and
Geographic Information Systems (GIS) Applications and
Solutions. Each focus group will review recommendations
made by the 2002 Congress, assess progress, and develop
recommendations for current and future goals and actions.
In addition, volunteers will be recruited to fulfill or followup
on the recommendations of the 2004 Congress. The five
focus groups will present and discuss the results from each
focus group.
The Congress begins at 12:30 p.m. on Wednesday,
September 15, 2004, at the J.J. Pickle Research Campus
- Commons Bldg. and concludes at noon on Friday,
September 17, 2004. The registration fees for the Congress
are $70 if registered before July 1, 2004, $80 if registering
between July 1 and August 31, 2004, and $95 thereafter.
Registration information and forms are available on the
TWMC web site listed below.
For additional information please contact Robert Bradley at
512-936-0870 or email [email protected].
Information on the Texas Water Monitoring Council and
past Congress sessions is available on the TWMC home
page at www.txwmc.org/
Why Plan for Future Water
Needs?
By: Sherry Cordry
In less than 50 years, if no action is taken, water supplies in
Texas are expected to decrease by 19 percent from current
levels. Under current conditions, the State Water Plan,
Water for Texas-2002, predicts water supplies will drop due
to an aging conveyance system, reservoir sedimentation,
the depletion of aquifers, and contract expirations. To
compound this dilemma, a growing Texas economy and
population are expected to elevate the demand for water to
slightly more than 20 million acre feet per year (AFY) by
2050, creating a deficit of 7.5 million AFY. This is enough
water to satisfy the needs of 21 cities the current size of
Houston for one year.
Meeting future water needs is the primary goal of water
planning and the purpose of the State Water Plan 每 Water
for Texas 每 2002. The plan incorporates approximately
1,600 water management strategies (WMS), which if
implemented will augment current supplies and ensure that
almost all of the currently identified future water needs
over the 50-year planning horizon are met. As shown
in the following chart, implementation of the proposed
WMS will increase supplies by more than 7 million AFY
to almost 22 million AFY by 2050, effectively meeting and
also providing a cushion to the projected 20 million AFY
demand.
Water for Texas - 2002 is available on the TWDB web
site at www.twdb.state.tx.us/publications/reports/State_
Water_Plan/2002/FinalWaterPlan2002.asp
Water 2000 2050
Demand 16,925,765 20,031,902
Supplies 17,615,756 14,332,787
WMS Supplies 1,837,475 7,359,848
Data Source - TWDB Water Planning Database
軋
5
Water Works
Water Follies: Groundwater Pumping
and the Fate of America＊s Fresh
Waters
by Robert Glennon, University of
Arizona
For each of the short stories included in Water
Follies, author Robert Glennon chronicles the
events and explores the dynamic interplay between
competing interests that, as he puts it, ※sheds light
on the impact of groundwater pumping on the
environment in the United States.§
The settings for Glennon＊s stories of water folly
include Arizona, where groundwater pumping
has caused the Santa Cruz River to run dry, and
Maine, where pumping for blueberry cultivation
threatens the survival of wild Atlantic salmon.
A few of the other impacted water systems and
ecosystems covered by Glennon＊s stories include
the Massachusett＊s Ipswich River, California＊s
Consumnes River, Minnesota＊s Straight River, sacred
springs on the Hopi Reservation in Arizona, and
Florida＊s Apalachicola Bay.
In a stab at the lighter side, Glennon offers a rich
selection of quotes, picture-like phrases worth a
thousand words. These quotes include: ※We forget
that the water cycle and the life cycle are one.§
(Jacques Cousteau); In the immortal words of L.A.
Power & Water＊s William Mullholland, speaking
about L.A.＊s plundering of the Owen＊s Valley, ※if
we don＊t take the water, we won＊t need it;§ ※The
frog does not drink up the pond in which he lives,§
(American Indian proverb); and ※And it never failed
that during the dry years the people forgot about
the rich years, and during the wet years they lost all
memory of the dry years. It was always that way.§
(John Steinbeck, East of Eden) LLatest Research & Planning Fund Grants
Management Reports
Contract Description Date
2000483356 Regional Drainage Plan & Environmental
Investigation for Major Tributaries in the
Cypress Creek Watershed
November 2003
2001483369 Temple/Belton Regional Sewerage System
Expansion to the Town of Salado Feasibility
Study
December 2003
2002483443 Trinity River Vision - Evaluation of the Trinity
River Floodway Channel Realignment
December 2003
2003483474 Database of historically documented springs
and spring flow measurements in Texas
December 2003
LLLoan/Grant Commitments
January through March 2004
Organization County Program Amount
January
The Rensselaerville
Institute
Hidalgo County WLAF $25,195
City of Nacogdoches Nacogdoches County CWSRF $10,365,000
Travis County WCID
No. 17
Travis County TWDF $1,165,000
February
The Rensselaerville Institute
(Residents of Mike Cruz
Colonia)
Hidalgo County CSHA $16,840
The Rensselaerville Institute
(Residents of Taylor Road
Colonia)
Hidalgo County CSHA $25,277
The Rensselaerville Institute
(Residents of Sammy
Martinez Colonia)
Hidalgo County CSHA $81,846
City of Bonham Fannin County CSHA $7,715,000
City of Diboll Angelina County DWSRF $1,060,000
City of Diboll Angelina County TWDF $145,000
City of Alvord Wise County CWSRF $420,000
Sandyland UWCD Yoakum County AWCLP $2,000,000
Bell County WCID No. 1 Bell County TWDF $10,000,000
March
No Board Meeting was held in March
Total $33,019,158
AWCLP: Agricultural Water Conservation Loan Program
CSHA: Colonia Self-Help Account
CWSRF: Clean Water State Revolving Fund
DWSRF: Drinking Water State Revolving Fund
TWDF: Texas Water Development Fund II
WLAF: Water Loan Assistance Fund
軋
Water for Texas is published quarterly by the Texas Water Development Board, P.O. Box 13231, Austin, Texas 78711-3231; Carla Daws, Editor; Mike Parcher, Design and Layout;
Editorial Board: Steve Bell, Sherry Cordry, Hari Krishna, Ruben Ochoa, Charles Palmer, Stacy Pandey, Larry Plagens, and Jeff Walker. For more information, please call 512/463-7847. 4/14/04
Our Mission
To provide leadership, planning, financial assistance, information and education for the conservation and responsible development of Water for Texas.
Equal Opportunity Employer
The Texas Water Development Board does not discriminate on the basis of race, color, national origin, sex, religion, age or disability in employment or the provision of services, programs or activities.
1-800-RELAY TX (for the hearing-impaired)
6
Members of the Board
E.G. Rod Pittman
Chairman, Lufkin
Jack Hunt
Vice Chairman, Houston
James E. Herring
Member, Amarillo
William W. Meadows
Member, Fort Worth
Thomas Weir Labatt III
Member, San Antonio
Dario Vidal Guerra, Jr.
Member, Edinburg
J. Kevin Ward
Executive Administrator
PRSRT.STD
U.S. Postage
PAID
Austin, Texas
Permit No. 1321
New Financial Assistance for
Disadvantaged Communities
By: Bruce Crawford
Disadvantaged Communities Funding is a new source
of assistance administered under the Clean Water State
Revolving Fund (CWSRF). Disadvantaged Communities
Funding is designed to address the lack of capital that has
prevented many small disadvantaged communities from
obtaining assistance from other state and federal loan
programs administered by the Texas Water Development
Board. These funds offer up to $30 million in loans for
wastewater projects, at an interest rate of 0% or 1%, to
political subdivisions that qualify as disadvantaged.
To qualify as disadvantaged, a political subdivision must
meet specific income and affordability criteria. Also,
Disadvantaged Communities Funding is limited to
political subdivisions with a population equal to or less
than 25,000.
For more information, contact Bruce Crawford at
512-463-8033 or [email protected]
Major Rivers Program Update
Now is the time to bring Major Rivers to your school! Orders
for the Major Rivers Texas water education program must
be finalized by May 15. The cost is approximately $40 per
classroom packet, which includes a teacher＊s guide, video,
30 full-color student workbooks and home leaflets, and a
printed storage box. For more information on the program,
go to http://www.twdb.state.tx.us/assistance/conservation/
ConservationPublications/majorrivers.asp or contact
Stacy Pandey at [email protected] or
[phone].

[The Backlash Cometh]

1. It's a rough clip to read, but it's pretty earth-shattering information.

I sense a paradigm shift in regards to property rights. And it's about time.