Texas Water Development Board earns “Atta Boy”

Preserve Our Water commends the Texas Water Development Board (TWDB) for its decision regarding the protest of the Groundwater Management Area 9 Desired Future Condition (DFC) for the Edwards/Trinity aquifer component. Acting on their statutory obligation to rule on the “reasonableness” of a DFC submitted by a Groundwater Management Area (GMA), the TWDB upheld the principle objection in the protest filed by the Kerr County Commissioners Court, Plateau Water Planning Group and the Upper Guadalupe River Authority. In that decision it ruled that the DFC calling for that aquifer component was “unreasonable.”

To understand the ruling, and why it is a desirable ruling for those who seek to manage our groundwater resources based on best available science, requires some understanding of the Rube Goldberg apparatus that passes for water law in Texas. Chapter 36 of the Texas Water Code is the law that governs management of groundwater through Groundwater Conservations Districts (GCD). That law establishes the concept of an exempt well:

“(1) a well used solely for domestic use or for providing water for livestock or poultry on a tract of land larger than 10 acres that is either drilled, completed, or equipped so that it is incapable of producing more than 25,000 gallons of groundwater a day; “

That section goes on to specify that a GCD may not restrict pumping from an exempt well. It turns out that in many jurisdictions within GMA 9, and the state, half, or more, of all wells are classified as exempt and, as a result, are beyond the ability of a GCD to regulate.

The rules regulating the pumping of water by a GCD are established in its “Management Plan,” a document mandated by law. The revision to this law that created the Desired Future Condition planning process requires that, September, 2010 a GCD Management Plan must be based on the approved DFC for its aquifer(s). The GMA (collection of Groundwater Conservation Districts) defines the DFC. The Texas Water Development Board staff use computer models to determine the volume of water that may be pumped (called Managed Available Groundwater) and still meet the DFC. The law further requires that once all of this is done, each GCD must “to the extent possible” permit all of the water specified by the Managed Available Groundwater value.

GMA 9 submitted a DFC for the Edwards/Trinity aquifer component that called for a “zero draw down” of the aquifer. That means, no more water could be pumped than could be “recharged” by rainfall in a normal cycle. The TWDB ruling declared this to be “unreasonable.” Some have concluded, understandably, that in this ruling TWDB is hostile to the intent of the Cow Creek and Headwaters GCD that have banned the issuance of permits to non-exempt wells for water in the Edwards/Trinity. However, a close reading of the decision, in the light of the maze of legal requirements, will reveal that the TWDB is simply taking note of a reality – undesirable as it is – that exempt wells cannot be limited or regulated by a GCD. Conducting computer modeling and using best available guesses as to population growth in the area, the TWDB found that somewhere around 2014 – 46 years shy of the end of the 50 year planning period – the pumping by exempt wells would result in a lowering of the aquifer, rendering the DFC unachievable and, hence, “unreasonable.”

The TWDB calculated the degree of “draw down” that is likely to occur strictly from pumping by the increasing number of exempt wells and suggested to GMA 9 that the level – 9 ft – be established as the DFC. On the surface this appears to fly in the face of the reasonable desire to protect spring flow and the base flow that feeds the Guadalupe River and avoid negative consequences to other aquifers as is reflected in those current Edwards/Trinity pumping prohibitions. It actually provides a solid foundation for GCD management plans limiting those negative effects to the greatest extent possible under current state law.

A GCD management plan built on a fundamentally unsound – unreasonable – DFC that attempts to prohibit pumping by the non-exempt well owner suddenly becomes a ripe target for a lawsuit which, at minimum, will drain the already meager budgets of those Groundwater Conservation Districts. In any case, if the number of exempt wells grow at even half the expected rate, some negative consequences will be unavoidable – again, under current state law. So, for the GCD, this ruling actually points the way to the most robust measures possible. The GCD is entirely free to conclude that the entire volume of the Managed Available Groundwater must be reserved for anticipated exempt well pumping and therefore, no water is available for permitting of non-exempt wells, preserving the current ban. With the senior state agency and best available science both supporting that policy, it would seem to be far more legally sustainable.

The other reason to commend the TWDB for this decision is that it may – may – constitute a sufficiently clear cut case of the problems posed by exempt wells that it will lead to legislative action that at least begins acknowledging the exempt-well elephant in the room.

The legislature made numerous errors in establishing the DFC process. These and other experiences growing out of the process may allow for correction prior to the next planning cycle. The most critical flaw to be corrected is the complete lack of funds allocated to complete this complex, labor intensive and time consuming process. Funding would allow a GMA to hire an independent facilitator not bound to any GCD within that planning group. It would allow for the retention of technical experts as needed and would allow for proper public participation; one in which the GMA would – like many other agencies – be required to not only allow comments and suggestions but to actually consider and respond to the citizen with an explanation as to why the recommendation was or was not acted on. For those who have participated in the GMA 9 process, that defect in the current process is quite evident. Correcting the defect would go far in building trust and confidence in the process among citizens.

We can all hope for – and should work for – the many, needed, substantive improvements based on lessons learned in this first joint planning process by Groundwater Conservation Districts. In this case the TWDB seems to have done the best job possible under far less than ideal conditions.

Dave Collins President, Preserve Our Water, Inc.