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Livestock Weekly

March 8, 2012

High Court Rules That Landowner Rights Also Include Groundwater

By Colleen Schreiber

AUSTIN — Do landowners own the water beneath their land? For most Texas landowners that’s a “well, duh” kind of question. However, that very question has only recently been definitively answered.

Last week the Texas Supreme Court handed landowners one of the most significant wins in recent memory. In The Edwards Aquifer Authority and the State of Texas, Petitioners, v. Burrell Day and Joel McDaniel, Respondents, the court ruled that landowners have an ownership interest in groundwater in place, and that the water beneath the land cannot be taken for public use without adequate compensation as guaranteed by Article I, Section 17(a) of the Texas Constitution.

The unanimous opinion authored by Justice Nathan Hecht says that “Groundwater rights are property rights subject to constitutional protection, whatever difficulties may lie in determining adequate compensation for a taking.”

The case, involving Bexar County landowners Burrell Day and Joel McDaniel, in part, is about whether action by the Edwards Aquifer Authority to issue a permit limiting their pumping from the Edwards Aquifer to 14 acre-feet of water instead of the 700 acre-feet they asked for resulted in a “taking” of private property. The high court ruled that the trial court had incorrectly concluded that the landowners did not have a constitutionally protected property right in their groundwater, and remanded the case to the district court for further proceedings.

Austin-based attorney Paul Terrill, who represents Medina County pecan growers Glenn and JoLynn Bragg in another takings case, has been battling the EAA on this property rights ownership issue since 1998. Not surprisingly, he finds the ruling “very gratifying” and “absolutely fantastic.” Terrill, who has won the only takings judgment against the EAA for the Braggs (the case is now on appeal), said the Supreme Court’s ruling confirms that landowners whose pumping rights have been taken away or severely restricted have a potential remedy through a takings suit.

“My view has always been that groundwater is a property right and that the water belongs to the landowner. It can be regulated like other types of property, but if that regulation prevents a landowner from using their water, the government must compensate the landowner for taking their property,” remarks Terrill.

Russ Johnson, of McGinnis, Lochridge & Kilgore, LLP, the lead attorney who successfully argued the Guitar case before the Texas Supreme Court, also applauds the Day decision.

“It was the correct decision. I think the court got it right in virtually all respects,” Johnson says. “In my view this doesn’t change the law. It confirms what most of us have felt the law was anyway.”

One of the key points that the court made clear is that the ruling does not stop a district’s ability to regulate, and in fact the court explicitly recognized the need to regulate, pointing out that, “In many areas of the state, and certainly in the Edwards Aquifer, demand exceeds supply. Regulation is essential to its conservation and use.”

“The Supreme Court, I thought, went to great lengths to make it clear that the ruling did not prevent regulation and that reasonable regulation under the Penn Central Doctrine, even if it diminishes the value of the landowner’s property, is not necessarily compensable,” remarks Johnson.

There are some, however, who believe the ruling means that the EAA will have to change the way it does business and possibly even revamp its regulations. Greg Ellis, former general manager of the EAA and the former executive director of the Texas Alliance of Groundwater Districts, opines that the ruling could potentially make things much more complicated for all groundwater conservation districts. He bases that opinion, in part, on the fact that the court writes, “A landowner cannot be deprived of all beneficial use of the groundwater below his property merely because he did not use it during a historical period.”

“That is going to make life for the EAA pretty tough,” Ellis opines, “because that’s pretty much exactly what the legislature said.” Ellis was referring specifically to the Edwards Aquifer Authority Act, the legislation governing the EAA.

“The purpose of a district, in my opinion, is to prevent harm that the rule of capture would allow and to try to the best of their ability to create sustainable aquifer production. The goal as much as possible should be one of sustainability.”

Terrill says that Ellis’ view is too regulation-friendly and landowner-unfriendly.

“The EAA and other groundwater districts can regulate groundwater production, but if they go too far, they need to compensate landowners for the loss of their property. That is not only fair, the constitution requires it.”

Johnson accuses Ellis and others of using scare-mongering tactics, telling people that this ruling now means landowners have the right to pump aquifers to extinction.

“The groundwater district clique that thinks ownership means the end of the world because they’ll be flooded with litigation and driven out of business or that we’re back to the law of the biggest pump is such a misrepresentation of the decision,” Johnson insists.

“I believe the exact opposite is true. Until last Friday, when clients called me up, I would tell them to get a permit, drill a well and start using their water,” Johnson admitted. “Today I can confidently tell them that they are going to have a protectable right to their groundwater even if they don’t use it.”

Ellis counters, and not surprisingly, it comes back to water marketing.

“Well if you’re T. Boone Pickens and you’re 70-something years old, and you say in an open forum that the plan for water for 50 years doesn’t interest me because I’m not going to be around — then to me that means he wants to sell as much water as he possibly can today.”

Ellis contends that the state has finally put together a model and a mechanism that recognizes that there is a limited supply of groundwater in the state. Once a GCD establishes its limit, then according to Ellis it is the district’s job to figure out a way to stay below the limit, and he contends that there are only two ways to do that.

“Either stop issuing new permits or keep issuing new permits but make current permit holders cut back in order to make room for the new guy. I promise you, people are unhappy with both results.

“The question that every district is going to have to answer now,” he insists, “is which method creates the least likelihood of liability to the district if there is a taking.”

Johnson disagrees.

“The Supreme Court made it clear that they were not ruling that regulation was a taking per se,” he reiterates. “Instead, they really made it clear that by ruling landowners owned groundwater in place they were not undoing the authority of the government to regulate that right. What they were saying correctly was if the government took that right away altogether or severely restricted that right with no good justification, then they could be liable for a taking.”

Ellis and the EAA have always contended that this kind of ruling means the EAA will now be flooded with takings litigation, but again, Johnson wholeheartedly disagrees.

“They’re not going to be deluged with a tsunami of takings claims. The first thing is this decision doesn’t change the law; it clarifies the law — that landowners have a property right that’s protectable.”

He went on to explain that for purposes of “takings” or inverse condemnation, there are a series of “statutes of limitations” that can apply. He also notes that unlike every other groundwater district in Texas, the EAA has what he referred to as a “unique need for extraordinary restrictions” on the exercise of a landowner’s groundwater right. What he’s referring to is the fact that the Edwards Aquifer almost solely supplies the water needed for nearly two million people as well as the criminal provisions the EAA has to abide by because of the Endangered Species Act.

“Those are pretty compelling problems that justify extraordinary or extensive restrictions,” Johnson insists.

In fact, Johnson opines that the only two places in the state where extraordinary restrictions on private property rights are probably constitutionally sustainable are in Harris and Galveston counties (in the subsidence district) and in the Edwards Aquifer region.

“Everywhere else the goal of conserving the resource doesn’t justify preventing people from exercising their right. That’s the fundamental problem that groundwater districts have. They would prefer to be in the ‘let’s conserve this for the future’ camp when the law says they have to recognize the right of their regulated community to produce the resource,” states Johnson.

Johnson also points to the court’s thoughtful analysis of Penn Central, pointing out that to win a regulatory takings case, the balancing analysis — involving a physical invasion of property which doesn’t apply in Day, as well as a deprivation of all economically beneficial use of property and interference with investment-backed expectations — must be considered. In short, what Johnson and others have implied is that to win an actual takings case against the EAA will be extremely difficult.

He acknowledges that there will likely be takings cases that come forth from Chapter 36 districts. In fact, he was about a week away from filing one such case against a district when the Day opinion was rendered. He’s hoping the district will now reconsider its actions.

“There are two types of groundwater districts that unless they change their behavior are going to get sued — those that have gone to historic users and said ‘We’ve done our planning process and we’re using too much water and we need to cut your water by a certain percent,’ and those districts that decide they have a cap that then decide they’re going to award all of that water to a group of historic users and everyone else gets zero. Those kinds of districts will find themselves in lawsuits,” Johnson insists.

More broadly, a district that limits permits for pumping simply for political reasons and/or to stop transport of water out of a district, or to keep landowners from selling their water out of a district, or a district that limits pumping or permit amounts based on something other than sound science may also be facing a takings claim in court.

Johnson notes that in the last legislative session lawmakers revised substantially the desired future conditions process and specifically directed groundwater districts to consider aspects of impacts on property owners and to also consider the total recoverable resources of the aquifer in making their DFC decisions. He’s hopeful now, given the Supreme Court decision and this change in the legislation, that groundwater districts will stop trying to reverse engineer their DFCs to meet their local objectives or pumping demands and prevent folks from producing groundwater when that groundwater is available for production.

The Day opinion also acknowledged the differences between Chapter 36 districts and the EAA, noting specifically that the EAA’s powers and duties are governed by the EAAA, not by chapter 36 of the Water Code. The EAAA does not refer to chapter 36.

How Chapter 36 districts are allowed to regulate is completely different from the EAA. Chapter 36 districts, for example, use several factors including groundwater production capability of the aquifer, well spacing, consideration of historic use, and a district’s approved management plan, while the EAA’s main focus in issuing permits is historic use and timely application for initial regular permits.

In the opinion the court talked at some length about the historic use provision, noting that the Authority argued that historical use is a sound method for establishing permit limits because it recognizes the investment of the landowner in developing that groundwater resource. The court, however, pointed out that “had the permit limitation been anticipated before the EAAA was passed, landowners would have been perversely incentivized to pump as much water as possible, even if not put to best use, to preserve the right to do so going forward.”

The court went on to say, “Neither the Authority nor the State has suggested a reason why the EAAA must be more restrictive in permitting groundwater use than Chapter 36, nor does the Act suggest any justification. But even if there were one, a landowner cannot be deprived of all beneficial use of the groundwater below his property merely because he did not use it during a historical period and supply is limited.”

The East case, known more commonly as the rule of capture, has long been considered the defining case in Texas groundwater law, and many water attorneys fighting for landowners’ rights hang their hat on East. The court, however, wrote that “No issue of ownership of groundwater in place was presented in East, and our decision implies no view of that issue. Instead, riparian law, which East invoked, governs users who do not own the water. Under that law, the railroad would have been liable even if East did not own the water in place. The railroad escaped liability, certainly not because East did own the water in place, but irrespective of whether he did.”

The court instead turned to a quote from the New York Court of Appeals decision in the 1866 Pixley v. Clark case: “An owner of soil may divert percolating water, consume or cut it off, with impunity. It is the same as land, and cannot be distinguished in law from land. So the owner of land is the absolute owner of the soil and of percolating water, which is a part of, and not different from, the soil. No action lies against the owner for interfering with or destroying percolating or circulating water under the earth’s surface.”

The court in Day wrote: “Whatever the New York court may have intended by this statement, we could have meant only that a landowner is the absolute owner of groundwater flowing at the surface from its well, even if the water originated beneath the land of another.”

The court also relied heavily on oil and gas law, noting that while there are differences, it was decided long ago that oil and gas are owned in place, “and we find no reason to treat groundwater differently.”

The Authority argued that oil and gas and water are so fundamentally different “in nature, use, and value that ownership rights in oil and gas should have no bearing in determining those in groundwater.”

The court disagreed, writing that, “Again, the issue is not whether there are important differences between groundwater and hydrocarbons; there certainly are. But we see no basis in these differences to conclude that the common law allows ownership of oil and gas in place but not groundwater.”

Ed McCarthy, of Jackson, Sjoberg, McCarthy & Townsend, LLP, a seasoned water attorney representing the interests of landowners, points out that the Day ruling is important because we now have a definitive statement of the landowners’ rights in Texas common law and a legislative finding of groundwater ownership in place in favor of landowners. In the opinion, the court pointed to the Groundwater Conservation District Act of 1949, which later became Section 36.002 of the Water Code. The court then pointed to the amendment made to 36.002 during the last legislative session, in which lawmakers attempted to more clearly define the ownership issue.

McCarthy also believes that the court did a good job of articulating a distinction between oil and gas law and groundwater law and how we should not look at the strict construction of oil and gas law in terms of permitting oil and gas development with respect to limiting groundwater permitting. For example, the Authority argued that groundwater cannot be treated like oil and gas because “landowners have no correlative rights, not because their rights are different.”

The court, however, said that argument fails.

The court also clearly recognized that groundwater is different from oil and gas in that it is a renewable natural resource but one that must be managed for current and future needs.

The court wrote: “Groundwater regulation must take into account not only historical usage but future needs, including the relative importance of various uses, as well as concerns unrelated to use, such as environmental impacts and subsidence.”

Johnson agrees that it makes sense that the court looked to oil and gas law guidance because the principle common law ownership rule applies to both minerals and water. However, not every water attorney agrees with that line of thinking.

“I personally think that’s a mistake,” Ellis said. “If everyone had the same goal for their groundwater like almost everyone has for their oil and gas, then that would be appropriate. We can measure an oil and gas field and calculate very closely how much can be produced from that field and then we can divide up how much everyone gets paid.

“If everyone wanted to sell their groundwater we might be able to do something like that for groundwater, though remember that the amount of groundwater changes, maybe on a daily basis. The problem is there are a lot of people who don’t want to sell their groundwater; they want to keep it and conserve it for the future. Now, under this ruling I’m afraid they’re not given that opportunity.”

Ellis went on to contend that because the court has ruled that the landowner owns the water in place, that somehow makes the powers of the groundwater districts null and void and we revert back to the old law of the biggest pump because once again “a neighbor can now pump your groundwater out from under your property and there is nothing you can do about it.”

However, it seems clear that groundwater should be regulated considering other factors, that the court is only tying groundwater to oil and gas in the actual ownership issue in that groundwater, like oil and gas, is a property right held in place. Nowhere in the opinion, as Johnson and McCarthy point out, did the court say that groundwater should be regulated like oil and gas. In fact, the court went out of its way to make clear that groundwater districts can still regulate and that local control is the preferred method for groundwater management.

Terrill, too, is of the opinion that the court was right to tie groundwater law to oil and gas, and he uses oil and gas case law to counter Ellis’ and the EAA’s insistence that because of Day there will now be a deluge of takings cases coming forth. He pointed to the fact that the ownership issue in place in oil and gas law for almost 100 years has not had a deluge of takings cases resulting from oil and gas regulation.

Ellis counters that the only reason there hasn’t been a pile of taking cases in oil and gas is because of the pooling rule.

“That (pooling) won’t work for groundwater. We can’t do the same kind of calculation for available water in the aquifer that we do for oil and gas. And, again, we have people who have no intention of selling; they don’t want to see the aquifer emptied out; they want it sustained or maintained as long as possible, so that regulation just doesn’t work for groundwater.”

Ellis also contends that had the court decided not to follow the oil and gas model, had they ruled that there is not a vested right until the groundwater is captured, there wouldn’t be this mountain of takings litigation, which Johnson, McCarthy and Terrill all stress is only a perceived threat at best. That perceived threat, however, was championed last week by the editorial board of the Austin American Statesman in their opinion piece, entitled “Groundwater Ruling Potentially Unleashes Geyser of Future Cases.”

Terrill calls the EAA’s “Chicken Little ‘the sky is falling’” argument and their talk about the horrible consequences that are likely to come from this ruling “nonsense.” He points out, as did the court in its opinion, that out of the 1100-something permits issued by the EAA, only three takings cases were filed – Day, Bragg and another that was settled by the EAA.

Terrill’s Bragg case will most likely be the first groundwater-related takings case to come before the Texas Supreme Court. In 2011 the Braggs received a trial court judgment for a taking against the Edwards Aquifer Authority for roughly $730,000. That case is now on appeal to the San Antonio Court of Appeals, and Terrill says he’s in the process of briefing it now.

However, Terrill points out just how difficult takings cases are to win. Not only that, but these kinds of cases typically carry on for years and years, which means to persevere takes deep pockets.

“Takings cases are hard to win. The deck is stacked in favor of the government, and few lawyers are willing to take on these difficult cases. That’s why you don’t see ads in the phone book or on late night TV from lawyers clamoring to take on the government on a contingency fee basis.”

The court wrote: “While the expense of such litigation cannot be denied, groundwater regulation need not result in takings liability. The Legislature’s general approach to such regulation has been to require that all relevant factors be taken into account. The Legislature can discharge its responsibility under the Conservation Amendment without triggering the Takings Clause. But the Takings Clause ensures that the problems of a limited public resource — the water supply — are shared by the public, not foisted onto a few. We cannot know, of course, the extent to which the Authority’s fears will yet materialize, but the burden of the Takings Clause on government is no reason to excuse its applicability.”

McCarthy points out that Day does not offer a roadmap per se as to how to win a takings case. He explains that in a federal takings case, to have an actual takings, the landowners have to prove a loss of the use of the property. Texas law, however, is unique in that the law allows a takings claim for that same provision but in addition there is a provision in Article 1, Section 17 that talks about injury to the property right. That provision, McCarthy explains, allows a landowner to claim damages for less than a whole taking.

“What has not been developed, and what’s not clear to me, is whether the court is going to allow a takings claim to be brought forth if a groundwater district grants a landowner a permit for irrigation use but won’t do the same for municipal use.”

Johnson agrees that some uncertainty remains, in that the court did not really offer any guidance as to how much regulation is too much.

“Where that line falls for each individual district is uncertain at this point.”

McCarthy says that each takings case will have to be decided on its own merit.

“There is certainly a cleaner set of criteria in the Edwards Aquifer Authority Act because of the detailed provisions and the detailed legislation,” comments McCarthy. “What Chapter 36 districts don’t have is 70 pages of very detailed, very specific, focused legislation. They have a bunch of broad parameters and statements.”

“I want to be clear that I don’t think that GCDs are going to be sued because they are adopting unreasonable regulations. I think they’re going to be sued because someone is going to think that whatever regulation they adopt is unreasonable,” remarks Ellis. “We already have people arguing that we should pump aquifers to extinction, and not allowing that means some landowners will file a takings claim.”

He continues, “I think we’ll probably have to see five or six such cases reach the Supreme Court from different appellate courts before we come up with a better definition of how to work that Penn Central Balancing Test — in terms of what’s appropriate and what’s not. The Bragg case has already gone through that balancing test, and the court found the district liable for $700,000-plus in damages. If that is upheld by the Fourth Court of Appeals, I don’t know where that money comes from or how the EAA could continue to pay out damages like that.

“The Chapter 36 districts who are all defining their own regulatory schemes are almost certainly going to be tested,” Ellis continues. “I think it will take several districts across the state to determine what the limits are. There may be no path for not getting sued.”

McCarthy reminds that to win a takings case will by no means be a slam dunk.

“Even if you win, it doesn’t mean you’ll strike it rich. You have to prove devaluation and loss,” he reminds.

He also points out that there are other “perils” associated with a takings case, including the right of reimbursements of attorneys’ fees for the district if they win. That almost obscure point at the tail end of the opinion is one that Terrill has issues with as well.

“There remains a provision that makes it mandatory for a groundwater district to recover attorneys’ fees. Yet, if the landowner wins, the landowner doesn’t get the same rights to recover attorneys’ fees.”

McCarthy says he wishes the court had said more about the need for good science in groundwater management, though he’s pleased that the court recognized that there can’t be a one-size-fits-all kind of regulating scheme.

“There will be bumps in the road in a couple of places,” McCarthy admits. “There will be someone who files a crazy lawsuit, and some of the districts will go nuts and in a knee-jerk reaction those districts will want to change a bunch of things.”

He predicts that during the next legislative session groundwater districts will try to find a legislative fix around Day.

“They’ll be scrambling like hell to get legislation passed to give them powers they want to think they have. “Hopefully, the courts will dispose of the crazy lawsuits,” he continues, “and we will continue to have the good guidance that we need with property rights regulation like we’ve always had.

“I know there are a variety of feelings about that, but it’s like zoning ordinances — they’re there for a reason. The EAA has created a very good market; things are working very well. I don’t think that’s going to blow up.”

Johnson opines that the court ruling most likely will make it easier for water transactions to occur, and he views that as a positive for the state.

“Bottom line, the state needs to develop a massive amount of water to meet its future needs. I think we all know that surface water is going to be very hard to develop in the future, so what we have is an opportunity to put to beneficial use a resource that is underutilized in some areas — that’s not true in the Ogallala and the Edwards — but believe me, in the vast majority of the Carrizo Wilcox and the vast majority of the Gulf Coast Aquifer and a substantial portion of the Trinity, it’s underutilized. The reality is we need to manage the resource, but we can’t manage it in a way that puts it off limits for now in the hope that somehow it will be available in the future. What’s the point of that?”

Terrill says there will always be issues within the Day opinion that attorneys can and will argue about.

“What they can’t argue about anymore is this claim that there’s no property right in groundwater in place.”

“Ultimately, they came to the right conclusion,” remarks McCarthy. “The groundwater districts and the EAA and their attorneys may have won the battle on East, but we won the war.”

The EAA issued a press release with a statement from Luana Buckner, Chairman of the Edwards Aquifer Authority Board of Directors, saying that, “At this time, we are reviewing the Supreme Court’s opinion in detail to further ascertain the implications it may or may not have for the continued effective management and protection of the Edwards Aquifer and the economic interests of those who rely on it as their water source.”

The statement went on to point out that the opinion affirms that the EAA has carried out its responsibilities appropriately and that they are awaiting further legal review of the opinion before commenting further.

Now Day and McDaniel will go back to the trial court and put on their taking evidence and attempt to recover damages from the EAA, a process that will itself take years to complete.

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California has mandated a 25% cut in water use one month after an LA Times op-ed by NASA scientist Jay Famiglietti kicked off with: “California has about one year of water left.” But, what did that headline actually mean? “One of the key points of the op-ed was that, since we will be relying more heavily on groundwater this year (perhaps an unprecedented 85% to 90% statewide), that we need to be extremely mindful to use it sparingly — all the more important as we consider the great potential for an even drier future in California with even more prolonged drought.” Check out this Famigleitti interview posted on Mashable.com.

Judge rules in favor of Hill Country landowner threatened by developer

Landowners Pat and Terrell Graham have won a small victory in their fight to prevent a neighboring developer from being allowed to dump 350,000 gallons of wastewater onto their property. A judge recently ruled in favor of the Grahams, recommending TCEQ deny the developers its permit. Read more from The Examiner. Meanwhile, lawmakers are proposing changes that will make it more difficult for landowners, like the Terrells, to challenge wastewater parmitting. More from the Texas Observer.

“Stars-in-the-Park” Returns April 10

What's the difference between a Blue Moon and a Comanche Moon? When is the best time this summer to see the International Space Station pass over Blanco? Have you ever seen a galaxy or a nebula with your own two eyes? Do you know that two different comets will be visible to the naked eye this year, in June and in October? These and many other intriguing questions will be answered in an educational and fun-filled evening as Blanco State Park hosts its semi-annual Stars-in-the-Park event on Friday, April 10th. Learn more from Blanco County News.

Save Oak Hill: Actions and Solutions

Save Oak Hill will be holding their second public meeting, "Save Oak Hill: Actions and Solutions," Thursday, April 16 at the Hampton Branch of the Austin Public Library on Convict Hill From 6:30-8pm. Anyone with concerns about TxDOT's plan to build an elevated toll-road through Oak Hill is encouraged to attend. Details

Short-term water, long-term consequences for Hill Country

The Vista Ridge water project in San Antonio threatens to follow a dangerous precedent: draining water from one region to another in a way that will only increase exurban sprawl in the Hill Country. If this solution seems familiar it should: It’s the California model that has led to that state having one year of water left. Read HCA's Op-ed published in the Austin American Statesman.

Hays County Water Fight Tumbles Into Committee

A volley of legislation launched by state Rep. Jason Isaac to stop a controversial groundwater project in Hays County came under harsh scrutiny by his fellow lawmakers on Wednesday. The Republican of Dripping Springs wants to stop Houston-based Electro Purification from pumping up to 5 million gallons of water a day from wells in his district and selling it to Austin's fast-growing Hill Country suburbs. Read more from the Texas Tribune.

After the Fire Along the Llano

After the 2011 wildfires in the Llano Water Catchment, landowners have worked collaboratively to help restore the land. April 18th, the public has a unique opportunity to revisit and learn from these sites. Learn more about this event and discover more useful Llano River information from the South Llano Watershed Alliance. Help spread the word to Llano River landowners to subscribe for regular updates. Read the latest SLWA newsletter.

Rainwater Revival Calls for Grant Applications from Hill Country Schools

As Texas Hill Country residents and businesses look for ways to conserve water, the Hill Country Alliance’s Rainwater Revival grants lend a helping hand to schools throughout the 17-county region. The HCA is now taking applications through May 1 from schools that want to implement or enhance rainwater collection and water conservation programs on their campuses. Learn more

Census estimates hint at mega-region between San Antonio and Austin

The population boom along the Interstate 35 corridor shows San Antonio and Austin could eventually grow together into a mega, metro region, the state demographer said after studying new census data. Hays and Comal counties — both of which hug I-35 and are wedged between San Antonio and Austin — were the fifth and ninth fastest-growing counties in the U.S. from July 2013 to July 2014, according to census estimates released Thursday. Read more from the San Antonio Express-News.

International Children & Nature Conference Brings Thought Leaders to Austin

The Children & Nature Network 2015 Conference at the Hyatt Lost Pines Resort on April 7-9 has attracted more than 500 leaders from around the world representing the conservation, health, education, technology and built- environment communities. Attendees will explore innovative ways to encourage families, schools, churches, non-profits and businesses to support getting kids active and into nature. More from TPWD.

Buying Development Rights Preserves Watersheds

Protecting watersheds and aquifer recharge areas should be a priority for the House Natural Resources Committee, writes Andrew Sansom, executive director of the Meadows Center for Water and the Environment at Texas State University. Purchasing development rights from private landowners in critical watersheds, he says, is a proven way to protect rural and agricultural land for the benefit of the state's natural resources. Read more from Trib+Water.

Report: Smart Lawn Watering Could Save Big

Even Texans with the greenest of lawns water them too much, many landscape experts say. And if everyone would turn on the sprinklers only twice a week — still probably more than necessary — the water savings would be significant, according to a report from the Sierra Club released Tuesday. Read more from the Texas Tribune.

TESPA files suit to stop Electro Purification in Hays County District Court

This case could lead to the review and potentially overturn the 'rule of capture'. “We hope to bring the common law of Texas into accord with the laws promoting groundwater conservation as passed by the Legislature and as mandated by the Texas Constitution." Read more from TESPA and get involved.

Will new pipeline spur Hill Country boom?

What is being sold to San Antonio as water security for the future could temporarily fuel Hill Country growth and once that supply is needed in San Antonio, then what? “The Hill Country is a beautiful area with limited surface water, limited groundwater and no big city to spread rates across,” Puente said. “We would answer the desperate call.” Read the full story in the Austin American Statesman.

It’s time to revisit Amy Hardberger’s critical eye on the SA pipeline

“The Post Oak Savannah Groundwater Conservation District, which has regulatory authority over the Vista Ridge water, determined that about 50,000 acre-feet of water could be safely permitted. Given that the groundwater district has already granted permits for more than 100,000 acre-feet, it is uncertain how the city can rely on this water for 30 years…San Antonio needs to develop new water resources, but the projects must be affordable and dependable, come rain or shine.” And if this supply is not dependable for San Antonio, how can we consider spurring a Hill Country boom with an unreliable resource? Learn more

A new effort has been launched in Oak Hill

“Save Oak Hill is a coalition of neighbors seeking to establish public greenspaces in Oak Hill to honor and preserve the rich history and unique natural features of the place we call home.” With a major TxDot project on the horizon, this Oak Hill community organization hopes protect their sense of place and environmental significance. Learn more and get involved www.saveoakhill.org.

Despite Central Texas growth, less water drawn from Colorado by cities

Despite Central Texas growth, less water drawn from Colorado by cities. “More people are moving to Central Texas daily, but the region has used less and less precious river water in each of the last several years.” The more we save, the less we need to import. Read the story in the Austin American Statesman.

District Targeted in Water Conflict

As outrage has mounted this year over the Electro Purification well field being built in Hays County, officials from Buda and the planned Anthem subdivision — two customers of the project — have dutifully showed up to town halls and round tables, subjecting themselves to the jeers of their neighbors. But missing from every public meeting has been the most critical player in making the project a reality: the Goforth Special Utility District, a Niederwald-area water provider that has the largest contract with Houston-based Electro Purification’s venture in Hays County. Read full article by the Austin American Statesman.

Here's What's Really Ruining Austin (and It's Not SXSW)

These days, Austin is trouble year-round. What's ruining Old Waterloo for the people who live there and love it are the people who live there and love it. There's just too many of them—and no plan for handling them all. Read more from Citylab.com.

Austin Water reports on water-related legislation

As Central Texas continues to face its worst drought on record, state legislators are considering several bills this session that could affect water supplies in Austin and throughout the state. Read more from Austin Monitor.

Hill Country Land Trust Conserves Sandy Ranch in Blanco County

The Hill Country Land Trust (HCLT), a non-profit land conservation group headquartered in Fredericksburg, Texas, recently worked with a landowner to conserve a 201 acre ranch in Blanco County, bringing the total of HCLT conserved acres in the Hill Country to just over 5,900 by the end of 2014. The property, located near the historic community of Sandy north of Johnson City, has been used for grazing and farming since the 1800s. The owners’ intent is to maintain the property as native rangeland for wildlife and livestock. Learn more

TESPA Announces Water Defense Plans at March 21 Meeting

The latest developments in the fight to protect our groundwater in Hays County go public at the TESPA Water Meeting on March 21 in Wimberley. "I am excited about this public meeting," said TESPA co-founder and local resident Jim Blackburn. "We on the TESPA team will present the surprising results of our legal research and discuss moving forward to stop the Electro Purification water development plan. I hope everyone who cares about the future health and prosperity of our area will join us." Details

Texas suburbs are growing faster than cities

Counties are growing at extremely high rates, in part because of the lack of land use planning ability outside of our cities. This trend has tremendous costs to tax-payers for basic infrastructure needs such as roads, water and schools. “Hays County, just south of Austin, is projected to be the fastest-growing county, by percentage, in all of Texas by 2050” Read more from the Austin Business Journal. Learn more about County Planning authority here.

The Southwest Water Wars

An old-fashioned, Western-style water war has erupted. Across Texas and the Southwest, the scene is repeated in the face of a triple threat: booming population, looming drought and the worsening effects of climate change. Read more from the New York Times.

Isaac Jumping Into Hays County Water Fight

With a high-profile groundwater fight raging in his district, state Rep. Jason Isaac is launching a volley of legislation to stop plans to pump huge amounts of water from underneath Hays County. Read more from the Texas Tribune. Representative Isaac issued his own media release yesterday. Read “Rep. Isaac and Sen. Campbell File Water Legislation Aiming to Protect Trinity Aquifer.” here.

Creating Vibrant Green Cities: Lessons from Seoul South Korea and San Marcos

Join us for a panel discussion with Thomas Hardy, Ph.D., and Matthew Lewis, the City of Austin’s Assistant Director of Planning and Development Review, on the lessons learned from two great green infrastructure projects located an ocean apart. This next event in the Imagine Austin Speaker Series will take place April 1 at the Dougherty Arts Center here.

Victory in Comal County

The Greater Edwards Aquifer Alliance (GEAA) praised the Comal County Commissioners court this week and announced the denial of the Meyers Ranch “Water Quality Improvement District” would have translated to 1,500 homes on 700 acres over the Edwards Recharge Zone. Read more from GEAA.

Hunt School builds Rainwater Harvesting model with funds from Rainwater Revival Grant

6th and 7th grade students from Hunt School are learning all about water conservation and rainwater harvesting thanks to a grant from HCA's Rainwater Revival and the generous help of the Hunt Garden Club. Read more from the West Kerr Current.

Utility agency pursues water rights

"With the Feb. 24 approval of Bee Cave City Council and Hays County Commissioners Court, West Travis County Public Utility Agency lobbyists are working to find a sponsor in the Texas Legislature for a bill that would define the specific water and wastewater powers the agency has." Read more from Community Impact.

HCA's 2015 Photo Contest has begun!

What is your vision of the Hill Country that future generations will inherit? The Hill Country Alliance (HCA) asks this question as it calls for photographs for its 2016 calendar. The annual HCA photo contest opens on March 1 and runs through May 31. Winners receive cash prizes and their photos will appear in the popular HCA calendar and in the organization’s various educational products. Entering the contest is easy through the HCA website. Learn more

"Food, Health and the Environment: Why Eating Right Can Save You and the Earth"

Join HCA at this first of many educational programs at the Hill Country Science Mill: Ecologist G. David Tilman presents, "Food, Health and the Environment: Why Eating Right Can Save You and the Earth." Dr. Tilman's research focuses on how to provide secure, sufficient and equitable food to all people of all nations while preserving biodiversity and minimizing agricultural impacts on water quality and climate change. March 29th at 4:30 pm at the Hill Country Science Mill in Johnson City. Details

Central Texas Drought Is Worst on Record

Competition for water prompts a quest for new sources. “The rule of capture is coming to the forefront again,” Venessa Puig-Williams explained. “People in Hays County are seeing that, though the rule purports to uphold property rights, it doesn’t really protect them. Large-scale pumping could dry up nearby groundwater sources.” Read more from Circle of Blue.

CAMPO Public Input Opportunities

The CAMPO Transportation Policy Board (TPB) is taking public comment on the draft 2040 Regional Transportation Plan, amendments to the 2035 Regional Transportation Plan and the FY's 2015-2018 Transportation Improvement Program. The TPB will hold a public hearing on March 9, and CAMPO will host a series of public meetings before the comment period ends on April 2, 2015. These meetings provide opportunities for the public to comment on the draft 2040 Plan, and on the proposed amendments. Learn more

Texas Wildlife Association to host three-day Women of the Land workshop

This workshop will cover basic skills from chainsaw operation to prescribed fire basics, geared towards female land managers. Interested in building your understanding of some of these important ranch management skills? This could be the workshop for you. Signup deadline is March 13th and space is limited. Details and Registration

Partnership created to establish the Center for Private Land Stewardship

The Texas A&M Institute of Renewable Natural Resources (IRNR) recently joined with the Samuel Roberts Noble Foundation and the East Foundation to form the Center for Private Land Stewardship. The center will be the hub of education for private landowners and the public, according to a Noble Foundation news release. Learn more from Texas Water Resources Institute here.

On the Road: A Symposium on Water

The Texas Tribune and Texas State University will be hosting a day long symposium on water, March 10 from 8:00 am to 2:45 pm. Topics include life after Proposition 6, the battle over groundwater, strategies for conservation and the poor quality of water along the Texas-Mexico border. Learn more and register for free.

Joe Beal, politically connected engineer, back in the water game

Former LCRA General Manager and groundwater developer, Joe Beal is back in the news with plans to transport water from Bastrop and Lee counties to Travis and Williamson Counties. "It was Beal’s empire-building effort at the river authority in the early 2000s that sent water pipelines shooting into the Hill Country, accelerating suburbia in areas around Dripping Springs" Read more from Statesman.com

Pollinator PowWow Draws Hundreds from Texas and Beyond

Icy roads and freezing rain couldn’t stop more than 200 people from making their way to the second annual Pollinator PowWow in Austin last weekend. The all-day gathering of pollinator advocates and native plant evangelists gathered at the Lady Bird Johnson Wildflower Center on Saturday for a full day of education, enlightenment and wisdom sharing. Read more from Texas Butterfly Ranch here.

Springs: The Canary in a Coal Mine for Groundwater

"Over the past 15 years, I have studied more than 1,000 springs, closely examining the relationship between springs and the health of the aquifer. I have discovered that springs are of inestimable value to plants and wildlife in landscapes where they occur and have also learned that springs continue to be as important to populations today as they were thousands of years ago. We have also found that in many ways, springs are the canary in the coal mine for groundwater sources." Read more from the National Geographic.

Group Formed to Protect Trinity, Edwards Aquifers and Springs

The Trinity Edwards Springs Protection Association (TESPA) today announced its formation as a Texas non-­‐profit corporation created to protect these aquifers and their associated springs. In the process, TESPA seeks to bring clarity to the groundwater property rights associated with owning land over the Trinity and Edwards Aquifers and associated springs. Learn more

Texas Wildlife Association to host three-day Women of the Land workshop

This workshop will cover basic skills from chainsaw operation to prescribed fire basics, geared towards female land managers. Interested in building your understanding of some of these important ranch management skills? This could be the workshop for you. Signup deadline is March 13th and space is limited. Details and Registration

Bennett Trust Land Stewardship Conference, April 23 in Kerrville

The second Bennett Trust educational program will take place April 23-24, 2015 at the Inn of the Hills Resort and Conference Center, Kerrville. This first-of-its-kind conference, “Protecting the Legacy of the Edwards Plateau,” will bring the best and wisest, accomplished stewards, visionaries, and legacy-leavers together as educators. Details

The Changing Science of Brush Control for Water Yield

While it was once widely assumed that heavy brush like cedar was keeping rainwater from recharging our streams and groundwater systems, science seems to indicate that it's not quite that simple. When done with care and an eye toward restoration, brush control can be beneficial to ecosystem health. Just be realistic about the likelihood that it will fill your stream or stock pond. Read more from Texas Wildlife Magazine.

Pioneers Youth Leadership Students Receive $24,000 in Scholarships and Cash Awards

Ten high school students in Pioneers Youth Leadership were awarded $24,000 in scholarships and cash awards last week at the Capital Farm Credit Rural Youth Entrepreneurship Competition at the San Antonio Stock Show and Rodeo. “Participating in this competition has given me confidence that I can successfully start and run a business in my hometown,” said Steeley Smith. “I was able to learn so much about the positive impacts of rainwater collection through my research,” said Jessica Dong of Knippa. Learn more

TPWD profiles state's least wanted water-hungry invasive species

A recent article in the Texas Parks and Wildlife Magazine profiles some of the biggest problem species invading Texas lakes and waterways, and finds that the damage they are inflicting could cost Texans billions of dollars - and millions of gallons of water - each year. "It's a war, and you are involved." Read more from TPW Magazine.

Get Your Birding On

Learn the basics of birding at the Cibolo Nature Center & Farm. “Birding is good for you physically, mentally and spiritually. You get outside, you use your brain, and it’s about something bigger than you,” says Patsy Inglet of San Antonio. The veteran birder and certified Master Naturalist teaches Introduction to Birding workshops with her birdster husband Tom Inglet. Their next class at the center is 9 a.m. to noon March 28. Learn more

Environment Texas looks at the best and worst project in the State Water Plan

Environment Texas Research and Policy Center has launched a new website - www.OurTexasWater.org highlighting some of the best and worst projects in the State Water Plan. The website features an interactive map where Texans can find projects in their communities that get either a Thumbs Up or Thumbs Down for their impact to our rivers, aquifers and natural resources. The website currently gives a thumbs down to the proposed Marvin Nichols Reservoir in northeast Texas, pumping of the Carrizo Wilcox Aquifer in Bastrop County and a Val Verde County water project which could threaten the Devils River.

Provide Water Supply Tools to Counties

“With supplies depleted by drought, the population growing daily and few large water projects in our immediate future, new development must minimize their water demands to protect the lakes, aquifers, and rivers. The counties surrounding the rapidly growing major cities will play a huge role in how we wisely use or diminish our water supplies and in the end determine the State’s economic attractiveness to the nation.” Read more from Tom Hegemier, chair of the Central Texas Land Water Sustainability Forum.

PEC Board votes in support of groundwater legislation

“Well drillers are locating these gaps in water district jurisdictions and exploiting them for pure profit,” said PEC District 6 Director Larry Landaker, who sponsored the resolution. “What is happening in Hays County through the misuse of the rule of capture is tantamount to the theft of water by one community to serve another. … That volume of water could … create a serious economic impact to the Hill Country communities we serve. Economic impact to the Hill Country is economic impact to PEC.” Read more from PEC.

Stay informed about EP Wells in the Hill Country Trinity Aquifer

As the story of unregulated groundwater in Hays County unfolds, there are two websites worth paying attention to for current information about citizen involvement. Citizen’s Alliance for Responsible Development (CARD) and Save Our Wells.

A Tribute to what has been lost to the Pilot Truck Stop in Junction

Many hill country people have been following the Flying J story in Junction; a poster child for ongoing threats to Hill Country rivers due to a lack of rules and oversight. View this video, read final testimony to the City of Junction here.

Friends of Enchanted Rock to host star festival this Saturday, Feb 21

Come on out to Enchanted Rock this weekend to celebrate the stars! The first Enchanted Rock Star Festival will be February 21 at the Enchanted Rock State Natural Area in Fredericksburg. According to Melissa Mial, event spokesperson, the purpose of the inaugural event is to celebrate Enchanted Rock’s designation as an International Dark Sky Park and Wildlife’s Dark Sky Initiative and increase awareness of the benefits of dark sky friendly lighting. Learn more

We need smart growth

Op-ed by Ron Walton: “I am not against growth but know the importance of being able to provide the infrastructure to support it. Unfortunately, I see a growing tendency however for growth in the area at all cost which, especially in the Hill Country (my specialty as a Hydro-geologist with background in water wells, septics, and geomorphology) I think does a disservice to all current residents like myself who came here recently.” Read more

Drought conditions worsen along Highland Lakes

Preliminary 2014 data shows the drought gripping the Highland Lakes is now the most severe drought the region has experienced since construction of the lakes began in the 1930s. As a direct result of the prolonged record-dry conditions and record-low inflows from the streams and tributaries feeding the Highland Lakes, the “firm yield,” or inventory of water LCRA can provide reliably every year, has been decreased by about 100,000 acre-feet, to 500,000 acre-feet per year. (An acre-foot of water is 325,851 gallons.) Further reductions in firm yield are possible as the drought continues. Read more

Book explores Central Texas County Courthouses

“As built artifacts, the county courthouses of central Texas tell a compelling story of a particular part of the country over a specific period of time. But more than a mere index of a building type, this project seeks to describe how county courthouses and the squares in which they sit relate to the larger communities that surround them.” Read more from TPR. HCA likes to imagine Hill Country courthouses with native landscaping and rainwater harvesting.

Net Blue Initiative Will Help Communities Pursue Water-Neutral Growth

“Communities need to reevaluate traditional planning approaches if they are to support increasing population and economic expansion in the coming years – particularly in areas with high growth and stressed water supplies,” said Mary Ann Dickinson, President and CEO of the Alliance for Water Efficiency. Read more from the Alliance for Water Efficiency report, "Water Demand Offset Programs Offer a Path to Sustainable Community Development" here.

New Commitment to Bring Back the Monarch

This week the US Fish and Wildlife Service (USFWS) announced what many have noticed for the past 20 years- monarch butterfly numbers are on a precipitous decline. Over the past 25 years an estimated 970 million monarchs have disappeared, largely due to loss of habitat. The Texas Hill Country is an important part of the monarch migration route, and USFWS has prioritized the entire I-35 corridor for reestablishing butterfly habitat. That means planting native milkweed and other pollinator-friendly plants. Read more about the efforts to bring monarchs back from the Washington Post

Dripping Springs residents strategize how to stop proposed concrete plant

A plan to build a concrete batch plant northwest of Dripping Springs has created an uproar among some residents. The plant, which would be operated as Dripping Wet Concrete

Upcoming Events


April 30 in Johnson City - TCEQ informal public meeting on the Chanas Aggregates Rock Crushing Operation Details


May 5 in San Marcos - Ed Cape Water Seminar Series: The Role of Texas Water Development Board and Drought in Shaping Texas Water Law - Details

May 5 in Bandera - Learn about the Southern Edwards Plateau Habitat Conservation Plan (SEP HCP) - Details

May 9 in Bandera - Bandera Water Workshop Series: "Aquaponic Potential" Details

May 12 in Bandera - Bandera Water Workshop Series: "Residential H2O Conservation" Details

May 29 in San Marcos - Addressing Conflict with deer in our communities, hosted by TPWD, TWA and TSU - Details


June 3 in Bandera - Bandera Water Workshop Series: "Agricultural H2O Conservation" Details

June 6 in San Antonio - Retrofitting Suburbia: 21st Century Challenges - Details

See more upcoming events

2015 Photo Contest

Runs March 1 - May 31
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Imagine a place where vibrant communities draw strength from their natural assets to sustain their quality of life. A place where citizens care about protecting the special qualities of a region – their region. A place where people and partners band together to envision a better economic future, tackle shared challenges and care for the natural, scenic, and recreational resources that define the place they call home.
~This is a Conservation Landscape

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HCA Dynamic Mapping Tool - Interactive online GIS mapping tool

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