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.
Former President and Texas native Lyndon B. Johnson once said: “Saving the water and the soil must start where the first raindrop falls.” In Texas, where about 95 percent of the land is privately owned, and 83 percent of that land is rural farms, ranches and forests, it is essential that all Texans understand the interconnection of land and water to ensure the healthy stewardship of both, according to natural resource professionals. Read more from TAMU.
The topic of land stewardship has gained a great deal of public attention during recent years. This is a good trend since it helps focus greater awareness to the importance of how the land is treated, and the people who carry out responsible land care. However, land stewardship to some extent, has become a catchphrase; feel-good words; frequently used but seldom clearly defined. In some ways, land stewardship is becoming an over-used slogan; thus the need to clarify its true meaning and character. Read more by Steve Nelle.
The legislative session is gearing up, and increasing groundwater production will be the objective of at least a couple of bills. Groundwater will be an important asset for Texas' future water portfolio, but should maximization be the goal? That's one of the questions Our Desired Future is meant to provoke. Read Sharlene Leurig’s recent op-ed in the Texas Tribune.
“Where have all the monarchs gone?” This is becoming an oft repeated query, and Texas Parks and Wildlife Department biologists are asking for citizen help in answering the question. Since monitoring of overwintering monarch butterfly populations 1993, the WWF has documented a significant decline that reached an all-time low in the winter of 2013. Biologists recently launched a project to explore Texas milkweed and determine where it is, how much is out there and are the monarchs using it. Read more.
A TCEQ Public Meeting will be held Monday night, December 15th at 7 pm at Star Hill Ranch to hear concerns about the wastewater treatment plant to service this large, dense proposed development. Community members encourage participation as this development will profoundly change the Hamilton Pool Road neighborhood. View the meeting notice here. You can learn more about this project and other issues affecting the Bee Cave and Hamilton Pool Road community at www.HPRmatters.com.
Water is not traditionally thought of as a crop, but Water As A Crop® and its partners are hoping to change that. This organization promotes the idea that water falling on private, rural land can be effectively conserved and marketed in a manner similar to crops. In exchange for implementing conservation practices, rural landowners receive financial incentives to reimburse their costs. These conservation practices benefit investors and landowners and preserve water for rural and urban communities alike. Read more from Texas Water Resource Institute.
You’ve been hearing about SWIFT for months; TWDB is now ready to implement this revolving loan program for water supply projects. The first round of applications are due February 3rd. Conservation is the least expensive and most efficient strategy of all which is why SWIFT legislation requires that not less than 20 percent of this program (hopefully more) is spent on conservation and reuse. Learn more
Los Angeles is a city that is notorious for its use of water- importing it from hundreds of miles away and delivering stormwater to the Pacific Ocean through the Los Angeles River, which largely has been converted to a concrete ditch. The story that is less often told is how this city of 3.8 million, and cities across the country, have begun implementing conservation practices that have shrunk their water footprint and changed the way we look at stormwater. Read more here.
Despite the fact that Texas counties have very little real control over how unincorporated land is developed, Travis County is giving it its best effort, as Commissioners approved a comprehensive Land Water and Transportation Plan on Tuesday. Read more from Austin Monitor.
Stanley Rabke’s family has lived and worked on their Hill Country ranch since 1889. Generations of Rabkes have struggled with the extremes of Texas weather, but one storm sticks out in Stanley’s memory: it came after the drought of the 1950s. Learn about the Bureau of Economic Geology research the Rabke’s are participating in. Read the full story from Mose Buchele at State Impact.
Comal commissioners are supporting proposed legislation to create the “Comal Trinity Groundwater Conservation District.” “The GCD is necessary because the Trinity, a major source of well water in the Hill Country area west of Interstate 35, already has dropped some 87 feet in the last 15 years” Read more from the New Braunfels Herald-Zeitung.
Storing and using the rainwater that falls on your roof can improve the quality of your drinking water and free you from the restricted use of water for your landscape in time of drought. The Cow Creek GCD has provided several video examples to show how it's done.
Residents are concerned that a sand quarry would destroy the tranquility of the rural community. Because mines typically operate 24 hours a day, 365 days a year, a quarry would bring noise and heavy truck traffic to the area…and because Pontotoc is emerging as a destination for wine tasting, local vintners fear that noise and dust from a mine would bring an end to a growing ecotourism business that has brought visitors to its tasting rooms. Read more from the San Antonio Express News.
The Greater Edwards Aquifer Alliance has published "Watershed Stewardship for the Edwards Aquifer Region, a Low Impact Development Manual." The manual was designed for developers, landscape architects, and all of those who live on, or are planning to build over our fragile aquifer recharge areas. Information about techniques that encourage infiltration of clean stormwater on site, and how plantings and landscaping can be used to mitigate stormwater pollution are outlined. Download the manual for free here.
Groundwater rights have been hotly debated in Texas for as long as there has been the ability to pump it. Unlike surface water, which is owned by the state and held in trust for the public, Texas courts have ruled that groundwater is the surface owner’s vested private property. This vested right can be regulated by Groundwater Conservation Districts. Read more from Texas Living Waters.
This 60 Minutes segment on Groundwater Depletion in California’s Central Valley explores California’s drought and the depletion of it’s Central Valley aquifer due to agricultural over-pumping. With dwindling reservoirs here in Central Texas and ever growing population projections, numerous proposals are under consideration to pump and pipe groundwater to the I-35 Corridor and beyond. What can the Hill Country learn from California’s “groundwater overdraft?”
HCA has been recognized as an "HONORARY MEMBER” in the Hays County Chapter of the Texas Master Naturalist for exemplary service and commitment to the community and natural resources of the State of Texas. Thank you Dixie Camp and the HCMN for many years of collaboration, we look forward to many more. Read more about the award and learn about the Master Naturalist program here.
The Hill Country Alliance, in partnership with the Texas Parks and Wildlife Department and The Nature Conservancy, will host a workshop on the nature and function of stream and riparian zones in the Hill Country. The workshop will feature presentations on riparian plants, basic hydrology, and techniques for ensuring healthy riparian function. The workshop will take place from 8am-4pm on Friday, December 5th. A variety of continuing education credits are available. Details
This amazing natural area is devoted to protecting the habitats of hundreds of species of native flora and fauna, grasslands, wooded hills and canyons, and vital watersheds. Thousands of school children visit and participate in hands-on learning experiences here. Learn more about this resource and how you can help protect it. Friends of Balcones Canyonlands
"The regulatory process, including groundwater districts' permitting process for huge commercial projects like this one, must afford the same due process to landowners who do not wish to sell their groundwater as it provides to private water marketers who derive their water rights from landowners who do choose to sell water." Read more
"Prince Charles has warned that the majority of people have 'lost any real connection with the land' as he outlined his concerns about the future of the countryside. He stressed the benefits to the wider economy of the countryside's 'ecosystem services' - with meadows and other grasslands storing millions of tonnes of carbon, providing homes for pollinating insects, supporting the agricultural economy and areas of beauty attracting visitors to boost local tourism." These issues translate here in the Texas Hill Country, read more from The Guardian.
“Groundwater is being pumped at far greater rates than it can be naturally replenished, so that many of the largest aquifers on most continents are being mined, their precious contents never to be returned.” Take a look at these maps that illustration how serious water shortages are in California, it’s essential to learn this lesson and protect healthy aquifers here in Texas, particularly here in the Hill Country.
"The take-away message from this study," Dr. Crompton says, "should be that the state park system is an important contributor to the Texas economy, particularly in rural areas and that the state’s net investment in parks is returned many times over as visitors travel to enjoy the outdoors and leave their dollars behind." Many of state’s most popular parks are right here in the Texas Hill Country. More from TPWD.
Ranchers and Landowners Association in collaboration with Texas A&M AgriLife Extension Service and Bandera County River Authority and Groundwater District will be hosting a rainwater catchment program November 15th in Bandera. Topics will include the state of Bandera County water, rainwater harvesting systems, and rainwater harvesting impact on appraisals. Details
Do you live in karst? About 25% of the US and the planet’s land surface is karst. Karst areas are the world’s most diverse, fascinating, resource-rich, yet problematic terrains. They contain the largest springs and most productive groundwater supplies on Earth. They provide unique subsurface habitat to rare animals, and their caves preserve fragile prehistoric material for millennia. They are also the landscapes most vulnerable to environmental impacts. Their groundwater is the most easily depleted and polluted. Learn more about the importance of Karsts during a free webinar from SNS, November 18. Details
Last week, the San Antonio City Council unanimously voted to move forward with the Vista Ridge Project that plans to bring 50,000 acre-feet of groundwater from Burleson County to the city. Because of our many concerns with this project, the vote was a disappointment, but last Thursday’s Council deliberation did stir some positives worth discussing. Read more from Texas Living Waters.
While much of the plan is dedicated to the preservation of farmland, watersheds and nature preserves, other parts focus on encouraging building more dense, urban-like centers in the county’s unincorporated and undeveloped areas. Read more from Community Impact.
On November 6, 2014, the Texas Water Development Board (TWDB) adopted a set of rules needed for fully implementing SWIFT in the lone star state. These rules will determine how projects eligible for SWIFT will be prioritized for funding. Now that the rules are official, public water providers are encouraged to submit an abridged application as the first step to receiving funding. More from TWDB.
HCA is interested in learning how you feel about the challenges facing the Texas Hill Country. Please take two minutes to fill out a brief public opinion survey by Monday, November 10th and you may win a two night stay at the Cool River Cabin along the beautiful Llano River. Take the survey here.
CNU Texas Chapter is bringing Chuck back to Texas for a three hour workshop on sensible transportation and infrastructure planning. “We advocate for a model of growth that allows America's places to grow financially strong and resilient,” Strong Towns. Chuck was a huge hit at HCA’s Summit, catch him November 20th in Austin. Learn more
Yes! Rainwater harvesting is a doable, practical, affordable and great tasting way to provide water for homes, gardens and businesses. That was the message heard by the more than 750 people who came out to Dripping Springs to celebrate and learn at HCA's day long edu-fest. Attendees enjoyed 63 booths filled with helpful information and demonstrations, live music, great food and 13 speakers who discussed a range of rainwater harvesting and water conservation related topics. Thanks to all who participated and we'll see you next year! See photos from this year's event here.
Blayne Stansberry has been announced as the unofficial winner of of the Precinct 2 Directorship for The Barton Springs Edwards Aquifer Conservation District. She and Director Craig Smith (Precinct 5, uncontested this election) will serve 4 year terms and join current directors Mary Stone (Precinct 1), Blake Dorsett (Precinct 3) and Robert (Bob) Larsen (Precinct 4) on the Board. More from BSEACD.
Balancing Rural and Urban Water Needs: How Local and Regional Planning Activities Ensure Long-Term Supplies. Join State Representative-Elect Andrew Murr as he moderates a discussion with SARA General Manager Suzanne Scott; Hydro-geologist, Region J consultant, John Ashworth and GBRA director/former CCGCD president, Tommy Mathews. Difficult decisions lie ahead as urban areas demand more water, rural areas experience loss of spring flow and our region faces increased challenges brought by population growth and drought. Are Central Texas’ water planning processes on track to balance the needs of its rural and urban users and protect the natural water resources that sustain our ecologic and economic health? Learn more
On October 31 the LCRA formally submitted an application with the Public Utility Commission of Texas (PUC) for the construction of a 138-kV transmission line project in Blanco, Gillespie and Kendall counties. Potentially impacted landowners should receive notice in the mail in the coming days. That information is also posted on the LCRA website. Potentially impacted landowners are encouraged to review the application documents, including the updated map, and participate in the PUC process. Landowners have until December 15 to become formal interveners in the PUC review process. More information and instructions on accessing LCRA TSC’s complete CCN application are available here.
Last week, the San Antonio City Council “unanimously voted in front of a packed chamber to approve a controversial pipeline that would bring in groundwater from 142 miles away. The $3.4 billion project would pipe in 16 billion gallons of water each year from Central Texas' Burleson County.” Read the full story as well as related stories leading up to this vote in the Texas Tribune.
The Community Gardens Program recently announced that the Bamberger Foundation will be funding a new urban garden in San Antonio. The garden will emulate many of the practices set forth by J. David Bamberger at the award winning Bamberger Ranch Preserve in Johnson City. Learn more
Driving through western portions of Austin, maybe you’ve noticed scenic, tree-covered hills spreading across the landscape and wondered when they will become a new shopping area or residential development. While growth is inevitable, it is also important to preserve land for the environmental benefits it provides. Learn more
Water is a hot topic in Texas – and it’s getting hotter. Register for Trib + Water to stay informed. This bi-weekly newsletter is brought to you at no cost by The Meadows Center for the Environment and The Texas Tribune.
“The project is much too important and costly for San Antonio not to have a full and complete understanding about the reliability of the groundwater supply.” Read more from this open-letter by Dr. Curtis Chubb, rancher and groundwater expert, published in the Rivard Report. Citizens have the opportunity to address the San Antonio City Council each Wednesday at 6:00 pm. The Alamo Group of the Sierra Club has created a clearinghouse of articles and reports to keep you informed. SA City Council is likely to vote on the project Thursday, October 30th.
“This historic decision puts us within reach of purchasing the entire tract of land and protecting the habitat Bracken’s bats have used for thousands of years.” Read more from Bat Conservation International. “San Antonio is one of the fastest growing cities in the county, in part because of the vast natural resources of the region. It’s our responsibility to ensure we protect and conserve what makes this region incredibly special.” Councilman Ron Nirenburg, quoted in the Rivard Report.
There's a lot of evidence that millennials don't drive as much — or care as much for cars in general — as previous generations their own age did. They're less likely to get driver's licenses. They tend to take fewer car trips, and when they do, those trips are shorter. They're also more likely than older generations to get around by alternative means: by foot, by bike, or by transit. There's still a lot of dispute, however, over exactly what these trends mean. Read more from the Washington Post.
"Everything from urban development to dance hall preservation was on the agenda at the Hill Country Alliance 2014 Leadership Summit, held Thursday at the Nimitz Hotel Ballroom." Read the full article from the Fredericksburg Standard.
“We are reaching a point in Texas where simply standing on common ground is not enough. The lives of urban and rural Texans are irreversibly intertwined, so we must all join forces to create and define initiatives and policies that conserve the common good, while protecting the heritage of private landowners.” Read more of David K. Langford's guest blog for the Cynthia and George Mitchell Foundation.
Most food growers rely on tap water to keep their plants alive during dry weather, but gardeners are discovering that chemicals in tap water harm the soil organisms that plants depend upon to absorb nutrients. As a result, more and more gardeners are storing rainwater. Read more from Sustainable Food Center.
For the past year, San Antonio City officials, Bat Conservation International, The Nature Conservancy and many other organizations and community leaders have been searching for a solution to avert a 3,500-home development over the Edwards Aquifer and adjacent to Bracken Cave Preserve. Next week, San Antonio's city council will meet to vote on whether to invest $5 million from their Edwards Aquifer Protection Program toward the purchase of the property and a conservation easement to protect aquifer recharge. Learn more from BCI.
City Council chambers filled Wednesday evening with more than 100 people who signed up to speak for or against the proposed SAWS-Vista Ridge Consortium water agreement. Individuals were given two minutes to express their views, while group representatives were allotted five minutes. Read more from the Rivard Report.
“I have never understood why in Texas zoning laws are good for city mice but not for country mice, especially as we lose more and more of the open land that is necessary to our survival as a species every year, but that is the way it is and there seems to be no way to change it until Texans get tired of seeing our state gobbled up by strip malls and truck stops and march on the state capitol armed with shotguns and pruning hooks.” Read this personal story about the Hill Country, by Lonn Taylor, featured in The Big Bend Sentinel. Learn more about County Authority in Texas here.
The public is invited to learn more about the process to develop a Roadway Character Plan for FM 150 from near Arroyo Ranch Road northwest through the Driftwood to RR 12 in Dripping Springs at an October 16 meeting. Hays County Commissioners Will Conley and Ray Whisenant are hosting the meeting to share information about the roadway and gather ideas from the public about what this important cross-county road needs to look like as changes are phased in to improve mobility and safety. Details
“..the effects of human endeavors all around the planet can be gauged by listening to the sounds of different habitats. Wild, urban, rural — they all can be interpreted.” Read more from Bernie Krause in “Call of the Wild,” featured in Sun Magazine. Find out what neighbors are doing through the Noise Pollution Clearning House.
“Through Texas Land Trends, we have been able to raise awareness that ‘Yes, we have a lot of land in Texas,’ but we are losing it at a faster rate than most other states in the country, and that loss is having profound impacts on our agricultural base, our water resources and our native wildlife habitat,” Fitzsimons said. Read more about Land Trends.
A community workshop will be held October 9th from 6–8 pm as part of a “Context Sensitive Solutions (CSS) process,” a planning approach that invites the surrounding communities and neighborhoods to influence the design, so that it reflects their cultural and historic values and aesthetic preferences. Learn more about the event hosted by the CTRMA and TxDot. Explore http://Fix290.org for more information.
HCA has released their 9th Texas Hill Country Calendar. Once again, this calendar delivers stunning photography while remaining an informative resource on Hill Country conservation. The stunning photographs featured throughout the 2015 calendar were chosen from nearly 400 submissions to HCA’s 2014 Photo Contest. Learn more
San Antonio is one step closer to buying some of the most expensive water ever sold in Texas, just as the deal is drawing more critics. Read more from Texas Tribune.
at Cibolo Nature Center & Farm on Oct. 6-11 Volunteers interested in learning about Hill Country wildlife and contributing to its scientific study are encouraged to become citizen scientists during the Wildlife Field Research “bio-blitz” taking place Oct. 6-11 at the Cibolo Nature Center & Farm. Wildlife Field Research is open to participants of all ages and skill levels. Learn more
The Highway Beautification Act will be 50 years old next year. As envisioned by Lyndon and Lady Bird Johnson, it was supposed to protect the natural landscape from billboards. Ever since its passage, scenic activists and billboard companies have been at war over the views along American highways. More from NPR.
The San Antonio Water System Board will vote Monday on a $3.40-billion landmark water deal that would pipe in 50,000 acre-feet of water to San Antonio annually as soon as 2019, enough to meet 20% of the growing city’s future water needs. Read more from the Rivard Report.
Monday’s vote by SAWS is step one, San Antonio City Council will ultimately consider and vote on the Vista Ridge Pipeline Project. Who is this water for? Where will it ultimately go? Who will ultimately pay and what are the long-term financial implications? Show up at UTSA Monday night for a balanced panel discussion. Get educated and get involved. Event details
“The 522 page draft contract for this $3.4 billion deal was posted on-line on September 23rd, giving the SAWS Board and the public less than a week to review a deal that will have far reaching implications for our community, including an estimated 16% rate hike for SAWS customers.” Read more from GEAA. As Margaret Day of the Alamo Sierra Club points out “to be sustainable, aquifer drawdown should be no greater than recharge.” Read this opinion piece from the Alamo Sierran Word.
Travis County is seeking public comments by Wednesday, Oct 1st on their Land, Water and Transportation plan. Read the plan, take the survey and/or send your comments via email. Meanwhile, CAMPO is taking comments until Oct 6th on a variety of projects including a study to construct a major tollway across sensitive preserve lands. “Traffic solution costly, harmful to environment” Read “City to oppose proposed tollroad” in the Austin American Statesmen.
The League of Women Voters of Comal Area invites the public to attend “The Trinity Aquifer: A Shared Resource/ A Shared Responsibility,” to be held October 7 in Canyon Lake. “If you drink water in Comal County, you are likely to be drinking Trinity water, or you soon will be. It is up to all of us to learn more about this resource, no matter where in Comal County we live.” Learn more
It's no secret that drought has been a major factor in the declining water levels of our lakes and reservoirs here in Texas. But there is another factor that has has received very little attention - evaporation. Read more from Texas Living Waters.
The stars may seem a little brighter over Kerrville next year. The Kerrville Public Utility Board last week set aside about $734,000 to upgrade 2,000 city street lights to “full cut-off,” high-efficiency LED lamps that won’t shine light upward. Read More from the Kerrville Daily Times.
Last week’s “Water Crisis” event hosted by The Hays County Citizens Alliance for Responsible Development (CARD) drew a huge crowd and continues to create a lot of meaningful conversations about how rural lands west of I-35 will be developed. Learn more
Even as Cibolo Nature Center staffers celebrate a major milestone with the completed restoration of the historic Herff farmhouse, they're setting ambitious new goals. Read more from SA Express-News.
Central Texas is having a pretty decent year, rain-wise. Were sitting just below normal. But these big rain events all have something in common: They really haven’t fallen where we need them most. “The watershed that helps our water supplies isn’t here in Austin; it’s way up into the counties to the north of us." Read more from State Impact.
Land fragmentation has been a growing problem for Texas, and by all appearances it isn’t going to slow any time soon. The state’s population continues to grow rapidly, and those residents have an insatiable appetite for land. Read more from Livestock Weekly.
As the current drought reminds us, water continues to impact the sustainability and growth of Texas' economy. Unfortunately, land is disappearing faster than in any other state, threatening the water resources on which our economy depends. Land conservation is a cost-effective water resource protection strategy. Join TALT October 1st in Austin.
With cool weather around the corner, the Texas Outdoor Family program has scheduled outdoor recreational workshops statewide though the beginning of December. The workshops offer a low-cost weekend trip where families can un-plug, reconnect with nature, and learn the basics of camping. Read more from Texas Parks and Wildlife.
Water marketers who want to sell to cities say there’s plenty of groundwater, however landowners and conservationists warn that this precious resource could drain in a few decades. Whats the long-term impact on the Colorado River as the groundwater table declines? Who exactly is this water for and what are they willing to pay? Read this excellent article by Neena Satija, Texas Tribune.
ACC Professor Don Jonsson takes an interesting look at various degrees of consensus about what geography is included in the “Hill Country.” His data shows Luckenbach as generally the mean center of the region and the Pedernales River Basin 100% Texas Hill Country. View his project findings, map and summary. HCA has a plethora of helpful Hill Country map resources available online and as well as an interactive map viewer.
Landowner groups and Wildlife Coops – Here’s something worth passing along to your member lists. Wild Pigs are an issue throughout the Hill Country region. Here’s an opportunity to learn from the comfort of your own ranch/home computer. Dial in September 18th to from noon to 1:00. Find out how to access this webinar made possible by the Texas Wildlife Association.
“The effects of population growth on traffic are easy to understand. More people equal more cars on the road. More cars on the road equal more congestion. Duh! The real culprit is the rate at which new people are moving here.” Read one bold Austinite's views (who happens to also be a Real Estate Developer) about the real issue facing Austin (and the Hill Country) population. Ed Wendler, Special to the Austin American Statesman.
to host a free community meeting this Thursday to discuss why water is an increasingly critical issue, and how we can all be part of improving the outlook. Speakers include Andy Sansom, Executive Director of the Meadows Center for Water and the Environment, Steve Clouse, Chief Operating Officer of San Antonio Water Systems, Ray Whisenant, Hays County Commissioner, Peter Newell, Water Resources Engineer at HDR Engineering, and Bech Bruun of the TWDB. Details
The Fix 290 Coalition, a group of over 40 organizations and businesses and 2,800 petition signers, have been advocating for a “parkway" concept to move traffic through Oak Hill and protect the original character and unique natural environment of the area for more than a decade. The City of Austin is now asking for a study of this community driven “parkway” alternative to TxDot’s traditional elevated/frontage road model. Read more from Fix290.
On Saturday, September 6th the Hill Country Alliance hosted a landowner workshop for those landowners potentially impacted by the LCRA's proposed Blumenthal substation and transmission line project. The workshop featured an update from the LCRA on the status of their application to the Public Utility Commission, and a panel discussion of landowner rights during the transmission line routing and construction process. To read a more detailed summary of the event and access speaker presentations, click here.
A decade ago, prospective water marketers easily secured the rights to pump more than 20 billion gallons of water annually from the Carrizo-Wilcox aquifer in Central Texas’ Burleson County. The company now holding those rights, BlueWater, is negotiating a $3 billion deal to send much of that water to San Antonio. Read more from The Texas Tribune.
December 15 in Boerne - GMA 9 Joint Planning Meeting - Details
December 17 in San Antonio - Public Hearing on Edwards Aquifer Protection Program - Details
January 24 in Bastrop - "The Rural-Urban Coalition for Local Control," first annual meeting hosted by the League of Independent Voters of Texas - Details
February 5 in Junction - Save the date: Stakeholder meeting for the Upper Llano River Watershed Protection - Details
February 13-15 in Austin - Urban Riparian Symposium - Details
One sale now!- Purchase Online
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