March 8, 2012
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.”
“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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A major bill on the top of Gov. Rick Perry's priority list that would authorize spending billions of dollars on state water projects faltered in the Texas House on Monday night after a contentious debate over where to pull the money from. Ritter’s bill, House Bill 11, would have taken $2 billion from the state’s Rainy Day Fund — a multibillion-dollar reserve of mostly oil and gas taxes — and spent it on water-supply projects, in an effort to help the state withstand future droughts. More from Texas Tribune.
Central Texas Water Coalition voices concerns with LCRA Water Management Plans
“The latest version of the LCRA Water Management Plan (WMP), which the TCEQ released for public comment on April 15, 2013, still raises serious concerns.” For example, recent years' data indicates the average inflows have significantly decreased but the plan still uses data from past assumptions. “Average inflows of 1,200,000 AF are assumed as compared to the recent five year average of 450,000 AF.” Read the full list of recommendations from CTWC.
SAWS turns off its Medina Lake tap
The San Antonio Water System has stopped drawing water from Medina Lake and shut down its treatment plant on the Medina River because of problems with the quality of the lake water. More from SA Express-News.
Limiting Environmental Regs Raises Fears of ‘Race to the Bottom’
Texas likes to be “business friendly” and as the state legislature considers bills to limit environmental regulation to keep it that way, some economists warn of the longer term consequences. Read more from State Impact.
Texas EcoLab: A Compelling Alternative to Ag Valuation
EcoLab is a partnership between landowners with ecologically valuable land and university researchers. Under this program, your land could transition into wildlife management use after just 2 years without needing an ag or timber valuation first. Click here to learn more.
A $13 million failure of imagination in Center Point
Explore how in Kerr County the "business as usual" model brings not only a $13 million price tag, but social and natural resource consequences as well. A veteran of over a quarter century of trying to move society toward sustainable water, providing planning and engineering as if water and environmental values matter. Read more from waterblogue.com
Malicious but Delicious
Restaurants are beginning to do their part to raise awareness of invasive animal invaders by putting them on the menu. Austin restaurant, Foreign and Domestic, recently staged a special feast, "Malicious but Delicious," in partnership with the Nature Conservancy with a dish featuring feral hog porchetta. Learn more from the New York Times.
As SAWS Pushes Native Plants, Texas Legislature Considers Native Plant Bills
Keeping Texas looking like Texas should get a bit easier if two bills introduced by State Rep. Mike Villarreal (D-San Antonio) pass the Texas Legislature this session. HB 1116 would create a Texas Native Seed Competitive Grant Program to fund and promote the development and cultivation of native seed. If HB 1135 passes, a Native Seed Committee composed of 12 individuals from around the state will be charged with crafting a master plan for encouraging native seed production and diversity. More from The Rivard Report.
National historic designation plaque to be unveiled at Herff Farm at the Cibolo, April 27
The Cibolo Nature Center & Farm will hold a public ceremony to unveil a bronze plaque at Herff Farm at the Cibolo in Boerne at 11 a.m. Saturday, April 27, to recognize the farm’s inclusion in the National Register of Historic Places. Details
Regional Lone Star Land Steward Awards Honor Texas Conservationists
At a time when punishing drought underscores the importance of managing our land and water to help Texas weather the worst, two land owners, two organizations and a mining company are being recognized by the Texas Parks and Wildlife Department’s Lone Star Land Steward program for their efforts in rejuvenating native habitat and wildlife across the state. Learn More
461 acres added to Government Canyon
Government Canyon now has 461 more acres and includes the second-highest point in Bexar County. The land is over the recharge zone of the Edwards Aquifer and protects endangered species and San Antonio's water supply. Read more from SA Express-News.
Huber: Don’t let short-term interests steal future prosperity
The recent federal court ruling, faulting the Texas Commission on Environmental Quality in the deaths of 23 endangered whooping cranes, directly relates to maintaining prosperity. The judge ruled that the agency has a statutory obligation to ensure enough fresh water flows downriver to the coast to provide viable habitat for critters like blue crabs, which sustain the whooping cranes – and ultimately us. Read more from Karen Huber at Statesman.com.
It's time for a Texas bottle bill, but crusade meets with little enthusiasm in Austin
It's called simply "the bottle bill." And it would set up a 5-cent deposit-refund system that essentially would pay people to turn in plastic and glass beverage containers from things like water, sodas and energy drinks to redemption centers across the state to be recycled. Read more from the Houston Chronicle.
City of Buda maintains small-town appeal, wins award
What happens to a small town when it is bombarded with growth? In many cases, the town loses its identity, its quaintness. Ask residents of Buda what they want for the future, and most will say, "Preserve our small town atmosphere." Read more from Hays Free Press.
Whooping Cranes Are Important Sentinel of Texas Heritage
The recent federal court opinion holding the Texas Commission on Environmental Quality (TCEQ) accountable for the deaths of 23 whooping cranes because of inadequate freshwater inflows to San Antonio Bay has generated a lot of concern and discussion. Read More
Texas Watershed Steward program to address water quality, availability
A Texas Watershed Steward workshop on water quality and availability issues related to the Pedernales River will be held May 22 in Fredericksburg. The no-cost training is open to anyone interested in improving the land and watershed quality of the Pedernales River area. Details
Outlook Calls for Texas Drought to Continue Into Summer
Central Texas’ two largest reservoirs, Lake Travis and Lake Buchanan, are at 41 percent capacity, according to the Lower Colorado River Authority, LCRA, website. Those low levels aren’t likely to improve much in the coming months, as the NOAA outlook anticipates warmer and drier weather through June. Read more from State Impact.
Collaboration News on the Upper Llano River Watershed
The second newsletter of the Upper Llano River Watershed Protection Plan is a great summary of events and progress. The Llano is so important to entire Colorado River system; springs on private lands feed this resource that becomes the water supply Austin. Read more. Or download the newsletter here.
Statesman Editorial calls out Austin bashing bills
It isn’t just Austin that suffers though when land development rules are weakened. It’s not a coincidence that Austin is a great place to live. “People who oppose development rules that Austin has lived under for more than 20 years have every right to try to change them through traditional democratic means at City Hall,” state Sen. Kirk Watson said. More from Statesman.com.
Greater Edwards Aquifer Alliance releases Legislative Agenda for the 83rd Session
The Greater Edwards Aquifer Alliance has released their Legislative Agenda for the 83rd Session of the Texas Legislature. This agenda includes bills filed as of March 29th, 2013. The Agenda has been compiled by consensus and endorsed by all forty-seven of our member groups, spanning twenty-one counties in Central Texas. Collectively, our groups represent approximately 25,000 Texans. Read More
UGRA: River quality in better shape
Water quality in the local Guadalupe River watershed improved last year, according to a recent report by the Upper Guadalupe River Authority. Although 2012 was drier than ideal, a few rainfalls produced beneficial flooding, said Tara Bushnoe, UGRA natural resources coordinator. Read More
Pull off the interstate in Junction for kayaking, hiking, birding and barbecue
Junction’s famous for its spring-fed rivers, state park, roosting turkeys, paddling routes, bird watching and pecans. While white-tailed deer hunting still ranks as one of the most popular draws for visitors, things are changing. Eco tourism is on the rise. “Probably in 30 years we’ll have more people coming for butterflies, birding and night skies than we do for deer hunting." Read the full story from Statesman.com
Better Lights for Starry Nights!
Our Night sky educational tour last week was very successful. Monday in Kerrville we co-hosted a gathering with community leaders and friends from the Riverside Nature Center at Schreiner University. A new observatory is in the works on the Schreiner campus giving Kerrville a wonderful new incentive to protect the night sky. Monday evening we joined the Texas Master Naturalists, Hill Country chapter for their monthly meeting with close to 100 participants. Tuesday, we partnered with the Hill Country Land Trust for a program in Fredericksburg where the city council recently passed a supportive resolution. Communities throughout the Hill Country are learning about effective night sky lighting as Bill Wren of the McDonald Observatory travels with HCA to share this story. Events were hosted at the Llano Public Library Wednesday and Thursday evening at the LBJ Historical Park in Johnson City. Learn More
Texas Tribune launches “In the Flow”
Exciting to see The Texas Water Symposium, one of HCA’s partner programs is featured in Volume 1, Issue 1, Story 1. Click here to read the first issue of In the Flow and become a subscriber yourself.
Barnes: George Cofer works to save open spaces
Cofer (head of the Hill Country Conservancy) has led the charge to snap up conservation easements in the Hill Country, allowing some private projects, thereby securing legal protection for other open space in perpetuity. Soon, his group will help break ground on Phase 2 of a grand project — the 30-mile Violet Crown Trail that will link the parks and greenbelts in Austin’s urban core toward a spine of Hill Country that arcs across the Barton Springs recharge zone. More from Statesman.com.
Award given to South Llano Watershed Alliance
The Junction-based South Llano Watershed Alliance is a winner of the Texas Parks & Wildlife Department’s 2013 Lone Star Land Steward Award. Former First Lady Laura Bush will be the keynote speaker at an awards ceremony in Austin on May 21. Read More
Drought Response Sparks the Battle of St. Augustine
At some point, the realities of water in Texas will reach a point where it is impossible to lay all of the drought’s harm on someone else. Lawns — and whether to keep them in the face of a protracted water shortage — come into the argument. Read more from Texas Tribune.
Water cutbacks loom
If conditions continue unabated, the Edwards Aquifer Authority for the first time in its history, will declare Uvalde County to be in Stage 5, thus triggering a 44-percent cut in pumping.” Read full article from Uvalde-Leader News.
Winemiller: The real cost of the Texas drought
The 2011 drought was not as impactful as the “drought of record” during the 1950s. In the wake of that terrible decade, Texas embarked on a massive campaign of infrastructure construction to achieve water security. But the situation is different now, and this time we cannot simply build our way out of a water crisis. Read more from Statesman.com.
Water: For Thirsty Lawns or Thirsty People?
The Texas Water Development Board estimates that 40 percent of all municipal water use is outdoors. Of that, half is lost to runoff from the excessive watering of lawns. This is drinking water that is simply wasted. This is water that could easily be conserved. Read more from HCA's Milan J. Michalec and the Rivard Report.
Hill Country Alliance Calls for Entries in 7th Annual Photo Contest
For its 7th Annual Hill Country Photo Contest, HCA is looking for photography that captures the spectacular beauty of this region, images that illuminate the very things that are worth protecting, and the historical or cultural stories that need to be told. The Photo Contest Call for Entries is open through May 31, 2013. Learn More
HCA in action featured in the LCRA Aqua Vita newsletter
“Stewardship in Action” by Robin Berry, gives a wonderful recap of our recent Water Symposium and gathering at 700 Springs. “Rural land steward panelists David Langford, Tom Vandivier and Ruthie Russell described how their land management practices help maintain water levels in the beautiful spring-fed Llano River” Read the newsletter and don’t miss the wonderful slide show of pictures!
Texas Water Symposium – the precious springs of Texas
The latest Texas Water Symposium (TWS) was hosted by the Llano River Field Station at Texas Tech in Junction on March 8th. The TWS provides perspectives from policy makers, scientists, water experts, and regional leaders on dealing with the complexity and challenges in providing water for Texans in this century. The Junction symposium focused on the vast importance of springs and the connections between groundwater, surface water, science, and stewardship. Read full Junction Eagle article. Read more from TPR and listen to the rebroadcast.
“Kimble County - Where Our Stars Are Stars”
The Kimble County Chamber of Commerce & Junction Tourism has announced their new “Kimble County – Where Our Stars Are Stars!” Night Skies Friendly Business Recognition Program. Learn More
The Texas Water Plan - An 18 Year Old Perspective
Are we listening to the next generation? 18 year-old Justin Wolfe writes, "The state’s next step ought to be to legislate groundwater as a public resource, so as to manage and regulate it effectively. Only by managing this resource can we ensure the longevity of our water system for generations to come." Read Justin's full article here.
Major Water Funding Bill Moves One Step Forward, Prioritizes Conservation
Significant new funding for water projects in a dry, thirsty Texas moved one step closer to becoming a reality Thursday. The bill, HB 4, would take money from the state’s Rainy Day Fund to start a loan program for new water projects. Read more from State Impact Texas.
Monarchs in trouble: Bad news for the butterfly species in Mexico and Texas
“The severe drought in Texas and much of the Southwest continues to wreak havoc with the number of monarchs. The conditions have been dry both here and in Mexico in recent years. It takes four generations of the insects to make it all of the way up to Canada, and because of lack of milkweed along the way, a lot of them just don’t make it.” Read full article from Texas Climate News.
In the Valley, not just farmers, but cities, may run out of water by spring
In the Lower Rio Grande Valley, water shortages are shaping up as a crisis not just for farmers but also for entire cities this year, said a Texas A&M AgriLife Extension Service expert. In 2009, the area experienced the worst drought in decades, as did much of the state, but this year is shaping up to be much worse for area residents, said Dr. Guy Fipps, AgriLife Extension irrigation engineer, College Station. Read More
Judge rules in favor of WVWA
Dwight Peschel, Senior Judge of the 25th Judicial District, has released a letter indicating he is ruling in favor of the Wimberley Valley Watershed Association in its lawsuit against the Hays-Trinity Groundwater Conservation District and Wimberley Springs Partners. Read Full Wimberley View article.
Water on the Home Front: New Report Highlights HOA Restrictions on Xeriscaping
“Texas faces an unprecedented water crisis, and most of the HOA landscaping rules that we found are barriers to the ability of ordinary homeowners to conserve,” said David Foster, State Director for Clean Water Fund and the report's author. He added: “Lawn watering can account for 60% or more of a typical homeowner's overall water usage.” Read More
Judge rules in favor of the Aransas Project in whooping crane case
The Court issued an order preventing the TCEQ from approving or granting new water permits affecting the Guadalupe or San Antonio Rivers “until the State of Texas provides reasonable assurances to the Court” that new permits would not result in harm to the whooping cranes. Learn More
Catching water from the sky
Water conservation has become a hot-button issue as water becomes more expensive and scarcer, especially during times of drought. Restrictions on landscape watering are common during the hotter months, and the (San Antonio) city council recently approved an 8.4 percent rate increase that SAWS requested. But customers who install catchment systems develop habits that reduce water usage, said Jim Champion of San Antonio-based Texas Rainfall Catchment. “Even with the smallest system, people gain new, better habits about using water,” he said. “They become more conscious of their water use.” Read more from SA Express-News
Texas' Water Future: What if it isn't there - or it's too costly?
Seeing our legislature taking a good, long and hopefully, logical look at our State Water Plan and its financing is hopeful. But going for the big, expensive and glamorous water projects will often cause more problems and not reduce our appetite for what is now more precious than gold, oil or gas—water. Read more from Mike Mecke in Ranch & Rural living here.
Billboards on Scenic Highways in Comal County
Billboards on Scenic Highways in Comal County will be the topic of the League of Women Voters - Comal Area public meeting March 21. Chris Cornwell, of Scenic Comal County, will describe the problem of proliferation of billboards along highways in the unincorporated areas of the county and Gus Cannon & Wendy Knox, from the Texas Department of Transportation, will explain the current regulations for billboards on state maintained highways in Comal County. Property owners have been invited to provide the point of view defending private property rights and financial considerations. Details
The Central Texas Water Coalition (CTWC) proposes buying out rice farmers
"What we have asked for is simple. That the LCRA take a close look at the concept before authorizing construction of the first reservoir. A committee of farmers and upstream interests should be brought together to see if the idea makes sense, just as the bitter enemies of ranchers and environmentalists eventually came together in the Texas Hill Country to find a middle ground, and to formulate a Win/Win solution to their problems." Read more from CTWC President Jo Karr Tedder.
Rainwater Revival Garners ‘Texas Rain Catcher’ Award for Public Education Excellence
“We’re honored to receive this recognition from the Texas Water Development Board,” said Karen Ford, HCA Board Member and chair of the event. “Our goal is to offer a useful, entertaining event that inspires anyone interested in conserving our water resources to learn how rainwater harvesting can become a reality for their home or business. With hundreds of people attending each of our three annual events to date, we help make rainwater catchment an easy priority for everyone.” Read More
Leurig: Conservation is conservative approach to solving Texas water problems
Testimony to the drought of 2011 is still all around us — dried-up reservoirs in West Texas, purposeless docks on the parched Pedernales River. On the heels of the drought, the idea of seeding a fund to meet the next 50 years of Texas’ water supply needs is a hard idea to pass up. But before we pluck that money from the state’s rainy day fund, let’s take a second look at what the state’s water needs really are, and how we ensure that state funds aren’t squandered in speculative water development. Read more from Statesman.com
Texas Springs Symposium March 8th
The 6th Annual Texas Water Symposium series continues this month at Junction with a personal conversation between Hill Country landowners and water experts about springs - the connection between groundwater and surface water. Details
Bill filed to recognize ecologically significant Hill Country rivers
A bill has been filed in the Texas Legislature to help preserve the unique ecological condition of the headwaters of the Nueces, Frio and Sabinal rivers in Uvalde County and the Comal and San Marcos rivers in Comal and Hays counties. Learn More
Blanco Post Office Installs Night Sky-Friendly Lights
Sometimes its what you don’t see that is really impressive. Such was the case recently when the Blanco Post Office installed new LED bulbs in the recently replaced carriage lights on the front of the Post Office building. The bulbs that originally had been installed in the new fixtures shined straight out onto the street and caused an irritating white glare for motorists and pedestrians alike. Additionally, because the lights shined above the horizon, they contributed to Blanco’s sky glow. Read more from Blanco County News.
Asleep at the Wheel to perform at event benefiting Texas Dance Hall Preservation
TDHP was founded in 2007 to help save the dance halls of Texas. Join TDHP for a benefit, March 30 at the historic Anhalt Hall, with a performance by nine-time Grammy award winning western swing band, Asleep at the Wheel, and a silent auction featuring rare music memorabilia. Details
Judge hears arguments in Jacob's Well groundwater dispute
The clear water that flows out of Jacob's Well has brought people to the Wimberley Valley for thousands of years, but in recent years the spring has stopped flowing, something which didn't happen even in the drought of record during the 1950s. "The reason it's gone dry is because of the heavy pumping from wells that are in the area," attorney Malcolm Harris said. More from YNN.
Burnet County officials to hold meeting on water issues, February 27
Water levels at lakes Travis and Buchanan remain low, and with slim chances for respite from the drought anytime soon, Burnet County officials have called a meeting Wednesday to brief residents and businesses on water issues. More from Statesman.com
A look at green infrastructure
Much of the focus about funding the State Water Plan is centered around significant public investments for traditional infrastructure such as treatment plants, pipes and dams; an expensive and sort-term strategy. Green Infrastructure provides much more cost-effective, long-term healthy natural systems for providing plentiful, clean water supply. Learn about Green Infrastructure from American Rivers here. Another great read about Green Infrastructure from the EPA here.
Spring Ag Irrigation Could Move San Antonio Toward Stage III Water Restrictions
As Texas enters a third year of drought, San Antonio Water System is bracing for the possibility that Stage III water restrictions may be activated for the first time in the city’s history as early as March. More from Rivard Report
Water experts from around the country gather in Austin to discuss improving water conservation
Our continued drought conditions here in Central Texas are a reminder of how important successful water conservation can be to a community. The drought also serves as a backdrop for this year’s 3rd Annual Water Conservation Symposium that focuses on Success Through Innovation: Strategies To Effectively Save Water, February 26th. Details
New study shows positive economic impact through a Texas beverage container deposit recycling program
Implementing a refundable deposit on beverage containers in Texas would provide a significant, positive impact to the state through increased economic activity, job creation, and reduced litter, according to a study released today by the Texas League of Conservation Voters. Learn More
Dome on the Range
Kenrick and Laurie Kattner have shared a love of stargazing and a dream of building their own observatory. They spent months driving around at night looking a spot away from the nighttime glow of Hill Country cities and towns. In 2007 they found the perfect piece of property in Llano County. “The Big Bend area near McDonald Observatory is one of the darkest areas in the nation, and it’s not that different out at our place,” Ken says of their Hill Country land. Read their story from Landscapes Magazine.
We need to design water sustainability into the very fabric of development
“So clearly there is ample reason to question if a State Water Plan that is predicated on extending and perpetuating the prevailing 19th century infrastructure model would cost more than it needs to, if we were to instead pursue a smarter infrastructure model, a model that recognizes and responds to the water realities here in the 21st century. An infrastructure model that yields deep conservation.” More from waterblogue.com.
Native landscapes, saving natural resources, edible gardens to be March workshop topics at Cibolo Nature Center & Farm
Using energy-efficient technology at home, designing native landscapes and creating edible gardens will be workshop topics at the Cibolo Nature Center & Farm during March. Details
Hill Country Land Trust Earns National Recognition
The Hill Country Land Trust has achieved land trust accreditation from the Land Trust Accreditation Commission, an independent program of the Land Trust Alliance. The Hill Country Land Trust’s accredited status demonstrates our commitment to permanent land conservation that benefits the entire community,” says John Huecksteadt, Hill Country Land Trust President. Learn More
Statesman Article examines who benefits from the “Fund the Water Plan” campaign
H2O4Texas PAC included “oil and gas companies, realtors, home builders, water suppliers and engineers — industries that stand to benefit from massive projects to move water around the state.” But as Andy Sansom explains, “It’s hard to grasp that the easiest, cheapest water to get is the water we already have. Should I spend $100 million to build a new reservoir, or spend money fixing the leaking water mains all over town?” Read the full article here.
Scenic City Certification Program accepting applications, through March 31
Scenic Texas has identified a direct correlation between the success of a city’s economic development efforts and the visual appearance of its public spaces. In recognition of this link, Scenic Texas has developed the Scenic City Certification Program to support and recognize municipalities that implement high-quality scenic standards for public roadways and public spaces. To learn more and download the application visit www.sceniccitycertification.org. For a detailed review of the program be sure to attend the hour-long webinar, March 6 at 10:30am.
Enjoy beautiful images of the Hill Country Night Landscape
HCA Photo Contest winner Chase A. Fountain is featured in a wonderful TPWD photo story about the Texas night landscape and starry sky above. Learn more about Hill Country efforts to protect the night sky. Keep tabs on the HCA Website and Newsletter, the 2014 Photo Contest is about to begin!
Certified Interpretive Guide Training Workshop
Do you want to create meaningful experiences that last a lifetime? HCA is offering an Interpretation class that will help you connect the minds and hearts of your audience to the beauty of nature and the mysteries of history. Workshop held the first two weekends in April. Register now, only a few spots remain. Details
Drought Plans on Edwards Aquifer is OK'd
A plan to manage the competing uses of the Edwards Aquifer in a drought was approved Thursday and couldn't be more timely, as the region faces what may be one for the record books. More from SA Express-News
Andy Sansom: “Action on Texas Water needed Now”
“Because the landscape of Texas is more than 95 percent owned by private citizens, virtually all our watersheds, all our recharge zones and all the countryside where the raindrops fall are on private property. The implications for our water supply are that in Texas we lose rural and agricultural land faster than any other state. We must find a way to keep our landowner stewards on the land and doing the right thing to ensure continued water for the rest of us.” Read the full opinion piece published in the Austin American Statesman here.
Bee Cave seeks control over development
"The Bee Cave City Council, concerned about a lack of control over new development near the city, hopes to hold an election in May that would give the council authority to annex nearby land and better regulate what is built there." Pay attention though a little further down the road, development could be pushed where the County currently has no land-use authority and needs it. Read more from Austin American Statesman.
We Love Hill Country State Parks and Natural Areas
State Park funding is once again a challenge this legislative session. To be part of a growing voice to “Keep Texas Parks Open” visit and like this Facebook movement.Check out the most recent issue of TPWD’s wonderful “Life’s Better Outside” newsletter that includes great information about conservation, water, kids outdoors and wildlife.
Come on Texas Hill Country – Let’s take the 40 Gallon Challenge together
Help turn the Hill Country region on this map to dark blue as we take the 40 Gallon Pledge together. We can do more to conserve water inside and outside our homes and businesses. Start by taking the pledge yourself. Then spread the word! Remember to forward to teachers too, this is a great educational tool for our kids. Take the Pledge
Deep Conservation, the Surest Path to Sustainable Water
A new water dialog has been launched www.waterblogue.com. “The stock in trade of water conservation programs practiced by cities and other water supply entities only tinkers around the margins of the basic water management infrastructure system; they do not attempt to fundamentally alter that system...what we need, if we are to approach sustainable water, are dependable, enduring long-term savings that are inherent in our water management processes. To get there, we need to get more deeply into how we manage water, and to fundamentally reform those processes." Read More
16th Annual Great Backyard Bird Count, February 15-18
The Great Backyard Bird Count is an annual 4-day event that engages bird watchers of all ages in counting birds to create a real-time snapshot of where the birds are. Everyone is welcome--from beginning bird watchers to experts. Learn More
How Hill Country Grazing Led to Cedar Fever in Texas
Grazing practices introduced to the Hill Country region in the late 19th century may be the cause of your cedar allergies. Read how from State Impact Texas.
U.S. Fish and Wildlife Service Approves EARIP Habitat Conservation Plan
"Approval of the EARIP's HCP marks a significant conservation achievement for the Edwards Aquifer Region," stated Southwest Regional Director Benjamin Tuggle. "The organizations and individuals involved in the development of the HCP clearly demonstrated that it is possible to come together and develop a consensus based solution to a very complex water issue in Texas." Read More
Texas Lawmaker Seeks Overhaul of Water Board
In addition to the intensifying discussions of water infrastructure funding at the Capitol, an even more basic conversation is also getting under way: whether to restructure the Texas Water Development Board. More from Texas Tribune
Why is Texas out of water during severe droughts?
Bringing science to policy is one of HCA’s core goals. As HCA Technical Advisor Raymond Slade explains, “Three major schemes are needed: (1) increased conservation of water to minimize waste, (2) funding for at least some of the most-promising Water Management Strategies, and (3) consistent water-use regulation for both groundwater and surface water.” Read the whole story here.
Liquid History - A Water Poem all Must Read
Sky Lewey describes this as the "most beautifully accurate description of rivers" she's ever read. HCA loves poetry -we open all board meetings with inspirational words to help us become grounded in our work. Imagine all policy decisions guided by wisdom like this. Liquid History by Dan Caudle, Upper Trinity GCD Director and distinguished Range Conservationist. Liquid History
Read more Hill Country news
May 14 in Uvalde - Night Skies over Uvalde - Learn how to save money, preserve our night skies and help bring back the Milky Way - Details
May 16 in San Antonio - Inspired by Nature: Artists on Mitchell Lake - An Evening with Ansen Seale - 6:00pm to 8:30 pm at the Mitchel Lake Audubon Center - Details
May 18 in Blanco - The Bicycle Sports Shop Real Ale Ride - For all levels - Details
May 22 in San Antonio - Join GEAA at City Hall in San Antonio on May 22nd - GEAA invites you to engage the Mayor and City Council of San Antonio in a dialogue about development on the Edwards Aquifer Recharge Zone, and whether or not to expand SAWS service into Comal County - Details.
May 22 in Fredericksburg - Texas Watershed Steward Workshop on water quality and availability issues related to the Pedernales River - Details
May 23 in Austin - Westcave Preserve presents: “Welcome to the Wild Country,” an introduction to the unique assemblage of wildlife and plants of the Texas Hill Country - Details
May 28 in San Antonio - Native Plant Society of Texas, San Antonio meeting - Topic: Gardening for butterflies using native and adapted plants - Free and open to the public - Details
May 28-30 in San Antonio - Southwest Stream Restoration Conference - Details
May 29 in Wimberley - Screening of the new film by Robert Redford, "Watershed" - Details
May 30 near Hunt - Range and Wildlife Management Field Day - For landowners, land managers and brush control contractors operating in possible endangered species habitats - Details
June 1 in Junction - "Well Trained" - A one day training for people who rely on household wells - Details
June 7 in Hunt - Streamside Landowner Workshop: Understanding Riparian Areas - Details
Call for entries through May 31st
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
Helpful Mapping Resources - Beautiful and informative maps of the region to print and share.
HCA Dynamic Mapping Tool - Interactive online GIS mapping tool