RIO NUEVO, WATER LEASING, AND THE GLO
BY
FRAN SAGE


Although Rio Nuevo's application to explore and produce water from the General Land Office's public school lands has been on hold, the School Land Board has now passed a set of rules and Land Commissioner Patterson has signed off on another set of rules concerning policy and lease procedures. Once the rules are posted in the Texas Register and 20 days have passed from that posting, negotiations may proceed between Rio Nuevo and the General Land Office (GLO). The public can register to speak before the Board when the lease is brought before it. The process for viewing the lease has not yet been worked out. It will be at least several months and may be more before the lease negotiations are completed.

Rio Nuevo will seek a contract to explore lands located in Jeff Davis, Presidio, Culberson, and Hudspeth counties and later, if the exploration is successful, produce and export water to a customer not yet found. The rules just passed set the framework for the negotiations. The lease itself will be reviewed by the Public School Land Board, but that will just be a review, as the final decision will reside only with the commissioner.

Last January, the Texas Register carried the proposed rules and invited comment. The National Wildlife Federation, Environmental Defense, and the Lone Star Chapter of the Sierra Club submitted comments jointly. The rules have been approved, however, with very little change and the recommendations of the environmental groups have been rejected as regulatory. The position of the General Land Office is that it is not a regulatory agency. The environmental organizations believe that water resource issues can be regulated by the GLO. They believe that rules that protect the natural resources on public school lands should be part of the framework for any lease. What constitutes regulation is not clear by looking at some of the rules and suggested changes. For example, part of Section 13.30, (d) requires that authorization to develop the groundwater resources "will not significantly affect current uses of adjoining users of water from the same source in an adverse manner." While the environmental groups proposed more extensive changes to it, it is hard to see why the consideration of future needs would have made the rules any more regulatory than the ones adopted. While the view that the GLO does not regulate is controversial, the environmental groups appreciate the forward step that the rules do represent. Under current law the Commissioner has extensive power to decide what will become part of its rules.

In addition, comments were also received from several water districts including the Jeff Davis and Presidio groundwater districts and the Bluebonnet district in Navasota asking that all the rules of the water district be mandated for any lessee and not just administrative rules. The commissioner changed "administrative' to 'applicable.' In addition, Janet Adams, general manager of the Jeff Davis and Presidio water conservation districts says, "The districts' main concern would be for local control to preserve the aquifer for future use." She said that she would have been comfortable with future water use being considered in the policy and leasing procedures of the GLO's since local control is assured. Tom Beard of the Brewster County representing the Brewster County Groundwater district had written comments indicating his satisfaction with the local control aspect of the rules but concerns about the poor oversight of the State Land Board and the extensive power of the commissioner. Beard believes that "the state government should help protect and conserve our limited public and private resources." He views the rules as allowing exploitation of the resources.

The rules provide that a lessee must apply to the local water conservation districts for permits to explore and to produce. Those rules must be adhered to. The Commissioner also put in a requirement that in lands in which there is no water conservation district, the lessee must follow the rules of the nearest district using the same aquifer. This provision is crucial as 70% of the lands in the Rio Nuevo application do not have water districts regulating them. Since there would be no one to enforce the rules, that role will be taken by the Commissioner. The addition of this requirement to the final rules is appreciated and meets some of the concerns of the environmental groups and others.

Trace Finley at the GLO believes that money for the Public School Fund is the major goal for the GLO, which he says the Commissioner tries to balance with the public good. He said requiring Rio Nuevo to follow the nearby groundwater district rules exemplify rules considering the public good To see the rules, check the Texas Register soon: http://www.sos.state.tx.us/texreg/ , and for the environmental comments go to: http://texas.sierraclub.org/bigbend/waterdocs.html