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Big Bend Regional Sierra Club
Regular Public Meeting
February 19, 2004

BBRSC President Don Dowdey said he wanted to bring some environmental good news -- that in the Otero Mesa area of New Mexico, Gov. Bill Richardson has led ranchers, property rights activists and others fighting against a plan to drill for natural gas. The Dept of Interior wants to open 90 percent of the area to gas drilling, but the group led by Richardson say they don't want drilling there. Richardson has been mentioned as a possible vice presidential candidate on the Democratic ticket.

Another bit of interesting news -- some students at Yale have modified robot puppies to protect environmentally damaging compounds and radioactive materials. These can be programmed for social activism and used on the east coast of the U.S. and in Belarus, Don said. Also, a condom factory in Brazil is fighting AIDS and deforestation by using natural rubber, a renewable resource, to make its condoms. It uses its profits to protect the environment.

Dowdey then introduced the speaker -- Tom Beard, who has served as chair of the Far West Texas Water Planning Group since 1998, and also heads the Brewster County Groundwater Conservation District, established in 2001. Beard has been a director of the Texas Wildlife Association, the Texas Bar Association; he is a rancher and a graduate of Yale and the University of Texas Law School.

Beard said he had told Fran Sage, who asked him to speak on water issues, that he wasnıt sure there was that much to talk about. "There are a lot of water issues on the table, but we donıt know where theyıre going." Then he added, "Thank God for Rio Nuevo, even goofballs have a role." The opposition to Rio Nuevo's plan, presented to the General Land Office for water mining in six counties in West Texas, actually "put issues on the table we've never had the guts to talk about before," he explained. "I think we owe Rio Nuevo a debt of gratitude. I think this goofy scheme is going to die of its own weight, but there will be others," he added.

Of Rio Nuevo, he said, "These guys are basically a bunch of speculators ­ they think like wildcatters did in the 30s," wanting to tie up the market before they even have anyone to market to.

Look at El Paso, he said, commenting that in the past 15 years the city has made efforts to ensure its water supply, "but one they own and completely control." Rio Nuevo would not be under their control, he said, adding that Rio Nuevo would have many imponderables -- a pipeline that would have to be built, and millions of dollars in research "to perhaps discover what we already know" -- that Kokernot Springs, Comanche Springs and other springs are dry, that Rio Nuevo can't produce 350,000 gallons of water a year. "We know weıre overdrafting this resource."

Ed Archulueta, general manager of the El Paso Utilities Board, "knows it's a stupid idea and El Paso is not interested," he said.

Rio Nuevo has united all of West Texas behind the water issue -- ranchers, environmentalists and everybody is against the water drilling. And six groundwater districts agreed they would never have talked about the "best guess" theory on which their rules are based had Rio Nuevo not come into the picture. "We wanted to talk about that as a major weakness -- If Rio Nuevo showed up and says to Jeff Davis, we attack your rule as 'arbitrary and capricious,' they can't prove it's reasonable. But if all the counties get together, we can show consensus, a less arbitrary plan for managing resources. Weıre clearly less arbitrary and capricious."

Beard said "it was a shock" to him, but all counties agreed to a common plan -- having like forms for applications for drilling, drilling registration, etc., "to encourage people to give us data"; also, with the districts isolated by distance and low numbers of population, the groups agreed to hire a part-time lobbyist, something the single districts would not have been able to do on their own.

The six districts are members of the Texas Groundwater Districts Alliance, he explained, but that organization represents all the areas of Texas, with diverse water problems and supplies and some with multimillion dollar budgets. The Texas Groundwater Districts Alliance represents the Panhandle and the High Plains Districts, with multimillion dollar budgets. He said the decision has been made, right or wrong, to deplete the Ogalalla Aquifer by 50 percent over 50 years. "If you take 3 percent or 5 percent from West Texas, youıll dry up all our springs," he said. If that happens, what will happen to wildlife, doves, quail? he asked.

Obviously, West Texas cannot treat water the same as East Texas or the Ogalalla. So the groundwater districts have agreed to hire a lobbyist, and are now trying to pick one. He said the group has a friend "who has been going to School Land Board meetings on our behalf." This will at least make Jerry Patterson of the General Land Office aware that someone is watching.

Beard said he originally thought the rule of capture had to be eliminated, but now he believes it should be modified by the Legislature, not eliminated. "This is a start, we need to start talking about it," he said, noting that Texas is the only western state that still follows the medieval English law of the rule of capture. He suggested that in the 21st century, applying the golden rule, which in legal terms is called correlative rights (you donıt want to hurt your neighbors because you donıt want them to hurt you), might be a solution. Why is that an impossible concept to apply to water? he asked. "Reasonable use" or prior appropriation are other possibilities used by other western states, he said.

The rule of capture is not a major property right, he said, itıs a rule of liability (I can pump as much as I want, I have no liability to my neighbor). A second restatement of torts would force people to recognize it's not a property right but you have rights to water relative to neighbors.

Beard said he wanted his proposal on modifying the rule of capture to be criticized, "if itıs not, weıll never build a consensus." He said he hopes the Legislature will consider modifying the rule of capture in 2005, or maybe in 2007. "I don't care what it looks like as long as we can come to consensus."

The rules for groundwater conservation districts is another thing put on the table by the Rio Nuevo plan. Groundwater conservation districts were set up in 1997 by the Legislature as an attempt to fix the water law, but "they didn't give us the tools to be able to manage the resource." Patterson of the GLO says that any lessee will be required to comply with the current rules of groundwater conservation districts. "I can recognize a wiggle word when I hear one," Beard said, adding that he considers 'current rules' to be a wiggle word.

Since it will take a lot of money to gather the data, then the groundwater districts will find their current rules are not based on hard data, and modify the rules. It will take lots of money to gather the data, Beard said, and the groundwater districts will find their current rules are not based on hard data. "So weıll modify our rules." The districts, he explained, canıt enforce much beyond pumping regulations and spacing rules, ³but we have to do that through district court or through fines. "You want to build cooperation...by and large, people don't want a confrontational attitude."

Another way Beard recommended to change the groundwater districts is to "give them the funding to defend themselves." The total budget for Brewster County's district is $11,300. He recommends that the state should make the attorney general fund groundwater districts, which might act as a deterrent to goofy ideas. "Thanks to Rio Nuevo," he said, "we are looking at it."

The regional water plan is another thing at which Beard recommends taking another look. "We spent thousands of hours crafting the original water plan," he said, and after fighting with El Paso, it was finally finished ³and we thought we accomplished something." But along comes Rio Nuevo, "itıs a hare-brained scheme that's not in our water plan, and you know what, it doesnıt matter." The only authority the water planning group has right now is implicit, not explicit. If a public entity is not in the regional water plan, it cannot get public funding. But Rio Nuevo is not a public entity, and they're not looking for public funding. "We spent thousands of hours crafting the plan, and it's irrelevant."

Beard said, "We have to give water planning groups authority, enforcement. If they don't fix that, Iım not going to be part of the process...the Legislature has to give it some teeth." This could be done by amending the water code, by saying that any water use strategy not in the regional water plan is not permissible. The Legislature did not want to create another bureaucracy, so they created an entity with the power to plan but without the power to enforce or contract, the power to sue or be sued.

The regional planning group does have bylaws, however, which allow it to appoint an administrative governmental entity to perform governmental functions, and the Rio Grande Council of Governments is that administrative entity. The Rio Grande COG contracts with a consultant, and with the water development board to develop the plan ­ the water planning group is off to the side, he explained. "If you want cooperation you have to have some authority -- I'm not a command and control advocate, but ... water planning groups have to have enough power and teeth to perform their duties."

"Give the planning groups entity status so they can do all that," Beard urged. "Give them the power to contract, to sue and be sued. ..Happily Rio Nuevo waked them up to that need for rethinking too."

GLO says it will require lessees to be consistent with the state water plan. The state water plan is a compilation, amalgamation of all 16 regions; by implication, that means it should be consistent with the regional water plan. But the state water plan was adopted in December 2001; Rio Nuevo is not in that plan, how could it be consistent with a plan that's already done? They wonıt wait if they want to produce now. "It's a sham ­ I thought maybe itıs sloppy graphics, but it's not...itıs a designed effort to sound good and do bad." Groundwater conservation districts are just as stupid as the rule of capture "unless we fix them," he said.

The Select Committee on Water Policy and the Subcommittee have had five meetings ­ fact is theyıve held four meetings that have had bearing on what we worry about. He believes all four meetings have been extremely positive. "Leaving the El Paso meeting I was a little depressed. It didnıt seem like the senators were engaged. (except for Senators Shapleigh and Madla). But the Subcommittee was extremely engaged. Each had great questions ­ I was worried about Sen. Lucio from the Valley. I recommended they abolish the General Land Office, and he was in favor of it. The senators have shown theyıre very much aware of the problems and committed to finding solutions."

It generally takes a long time before the political will develops to get something done. This will be the first session in history of Texas where the rule of capture is talked about. He doubts there will be an immediate solution. In the meantime, "we have to protect ourselves out here."

Some of the bigger districts don't think they have a problem, Beard said, but he considers that "a bunch of hooey." Even in the Panhandle, "where theyıve measured the Ogalalla for 70 years and they have a world of data, they donıt know enough to set production limits at different sites." C.E. Williams, one of the principal groundwater experts, reports that they don't know enough to prevent neighbor A from being drained by neighbor B.

"Out here it's more obvious," said Beard. Jeff Davis County groundwater district rules are that two acre feet of water can be produced for every acre owned per year, meaning 40,000 acre feet of water could be produced per year if a person own 20,000 acres (thatıs the size of Antelope Valley which is owned by El Paso). El Paso has not proposed taking 40,000 acre feet but they could do it.

The rule of capture, he explained, is not fixed in a groundwater district ­ 92 percent of groundwater is used in Texas and this comes from the groundwater districts. (Beard disputes that figure) The General Land Office, he said, doesnıt tend to recognize data unless it is produced by the Water Development Board. Among the state's 254 counties, there are some 80 groundwater districts, and more than 100 counties are not in groundwater districts at all (does it make sense that only 8 percent is not used?)

Beard said he thinks the three major problems he discussed need to be integrated -- the rule of capture, groundwater districts and the regional water plan. ³We need to look at some of the problems that Rio Nuevo has revealed.²

Beard called a Farm Bureau editorial that appeared in the Desert Mountain Times defending the rule of capture as 'nuts,' saying the Farm Bureau doesnıt understand that the rule of capture is not a property right. Landowners have defended it in the past because they'll say 'someday I may want to sell my water.' But San Antonio or El Paso will buy the land to control the resource. He said Boone Pickens is buying land for self-protection, so that his water will not be drained. Pickens, he added, has been sending an employe to water planning meetings and that Pickens also thinks the rule of capture needs to be modified. Pickens' employe says Pickens doesn't really want to market water; he just wants protection.

How to deal with areas that do not have groundwater districts? Beard responded that 70 percent of land Rio Nuevo plans to lease is outside water districts in Hudspeth and Culberson. He doesn't think thatıs a coincidence. But he said Kathleen White, head of TCEQ, is a conservative businesswoman who agrees with protecting resources. TCEQ people, he said, have gone into Hudspeth and Culberson Counties to prepare groundwork so TCEQ can declare them a priority groundwater management area. If TCEQ determines there is a threat to the resource, there's no solution without a priority groundwater management area. Adjacent landowners can petition the district to be included. If they're over the aquifer they share a common interest. Arguably there's significant communication of aquifers. The right of petition is broader than itıs usually considered, he believes, and because of the Rio Nuevo situation, he suggests that those rights should be considered more expansively. "If our whole purpose of having groundwater districts is to allow people to protect the resource... why do we want to exclude them," he asked. He said the right of petition is the second choice, the priority groundwater management area is first.

Ten percent of landowners within an area can petition TCEQ to create a groundwater district or to join the area into another district. If TCEQ wants to, it can be done. ³We don't have to wait to expand those districts. If science doesnıt support a PGMA, or the adjacent landowners don't want to petition to be included, or to expand or create a news one, we can go to the Legislature...Thanks to Rio Nuevo, I think most people in the counties will." That would allow protection for areas in Hudspeth and Culberson that are not in the districts fast enough.

Should water conservation be mandated? Water conservation has to be the first tool and the first choice everywhere in the state, he said. "If you do it, youıre creating new supplies." Five years ago El Paso was consuming 210 gallons per person per day, now consuming 149 gallons per person per day, and the goal is to reach 140 gallons. Dallas, he said, uses 255 gallons per day -- "talk about wasteful! If they would conserve, water would be freed up."

Mentioning the Trans-Texas Corridor that Gov. Perry has proposed, Beard said he considers it a visionary plan that would put all the utility infrastructure -- including pipelines for water transport -- in one place. Eventually, he suggested, an intrinsic value will be put on water and it will have value as a raw commodity. He said the Trans-Texas Corridor could be developed within 50 years; then thereıs an infrastructure through which water could be moved from place to place.

You have to have water conservation but should water conservation be mandated? I'm an opponent of command and control. Whoıs going to pay for it? He thinks people would try to find ways around it. "I donıt agree with mandating conservation; I think thatıs counterproductive."

What about historic rights in determining the amount of water to be produced? In Hudspeth County, rules are based on historic use. Whatever has been done for 10 years is allowable 'historic use'; but some had bought land and never produced, so there was no historic use. Thereby, large numbers of landowners were alienated. They created an unconstitutional set of rules. Rules were drafted by an engineer, not a lawyer. Government canıt take property without compensation; if farmer had land but hadnıt produced, based on historic use, Beard said it should not be sole determinant. It would be an arbitrary rule that affects his livelihood.

Explaining the subsequent reasoning after his idea for Texas to get rid of the General Land Office, Beard said that the General Land Office was established to get rid of properties that could be used for oil and gas, and that has been accomplished. Any duties of the GLO relating to oil and gas could be given to the Railroad Commission; any duties of the GLO relating to water could be given to the Water Development Board; any duties concerning bays and estuaries would more properly be handled by Texas Parks and Wildlife; any obligations concerning the Veterans Land Board should be turned over to the Veterans Commission, and control of the Public School Fund, currently under the GLO, should be given to the Comptroller or to the Board of Education. Dispensing all the duties of the GLO would mean there was no further reason for its existence. "I started facetiously, but then I convinced myself," he said.

Beard said he did not expect the GLO to be abolished unless Patterson continues his present course. He termed it ³bad politics² for Pattersonıs plans to be criticized in every major media. He added that Pattersonıs plans to cooperate with a California company to purchase water would mean that the GLO and Patterson would own the water resource, the distribution system and the customer base. He said that would mean a public agency, which doesnıt pay tax, would be competing with a private corporation. "I donıt think thatıs an appropriate use of state government," he added.

Beard added that he has it from a reliable source that Patterson will probably sign the lease with Rio Nuevo, without providing the science or justifying the environmental and economic stresses. In laying out the water plan of 2001, the Legislature never considered a private project, he said, and Rio Nuevo has not talked about public funding.

"Weıre the region with the biggest unmet water needs," Beard said, "and yet this Rio Nuevo wants to take it away."

Beard said he believes the opponents to Rio Nuevo have a good chance to change one section of the water code -- 51.121A -- which allows GLO to sign leases, by bringing it up during Gov. Perryıs special session on schools. He said Senator Duncan had mentioned in this regard that "what the Legislature gives, the Legislature can take away."


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