You’ve got to be tough to live in Texas. Twenty years ago this year, after a long history of persistent drought and damaging floods, the Texas legislature passed Senate Bill 1, the first landmark water bill to create the regional and state water planning processes we know and use today. This 20th anniversary marks an opportunity to take a close look at what’s gone right, what’s gone wrong and how our water laws directly touch the lives of Texans.
SB 1 envisioned market-based, voluntary transactions as the key to allotting water resources to meet rising demand. With very few exceptions, such market transfers of water have not occurred.
Instead, regulatory impediments have stymied voluntary exchange of water, the backbone of water supply projects.
Water is our most precious natural resource. It is fundamental to all life, to our robust and continually growing economy, to human welfare, and to the environment.
Yet most don’t often pause to consider where water comes from, how it’s allocated, and the variation of its use in different places. It’s vastly more complex than rain caught falling from the sky.
In Texas, groundwater and surface water exist under two distinct legal systems.
Surface water, the water in bodies like springs and rivers, is owned by the state, but is purchased and sold by and between individuals as rights to use the water. The earlier a water right is originally obtained from the state, the more senior it is. In times of emergency or water shortage, water is allocated to water right holders in order of seniority. This is why senior water rights are more valuable than junior rights.
Groundwater, such as the water held underground within aquifers, is owned as a private property right by the landowner. Put simply, landowners in Texas own the water beneath their land.
Time has shown that buyers and sellers left to interact without the intervention of government regulations are the best avenue not only for exchanging valuable goods, but also for conserving scarce resources. Water, both valuable and scarce, is no exception. Buyers and sellers — be they individuals, enterprises, municipalities, or otherwise — are the best suited for crafting agreements; they are the only ones with a closely held knowledge of their communities and surrounding environments.
Texas groundwater is managed by groundwater conservation districts. Although the Legislature has passed and the Texas Supreme Court has ruled that landowners own groundwater, these districts can enforce limits on groundwater production on private land and have the power to deny permits for water projects.
Texas’ complex water regulatory structure has, in many instances, removed the choice to move water from where it is to where it is needed. In few places in the state can we find successful steps toward a water market, but one of them is in San Antonio.
The San Antonio Water System (SAWS) will soon begin the construction of the Vista Ridge pipeline, the public, private project to carry 16 billion gallons of water per year from Burleson County to San Antonio’s growing and thirsty population. The project represents a private capital effort and the market-based exportation of groundwater.
Other groundwater projects have faced their obstacles. SAWS had planned to treat brackish groundwater in the Evergreen Underground Water Conservation District, one of the many districts that regulates the Carrizo-Wilcox aquifer. Ultimately, the Evergreen district threatened to shut down pumping at any time, making reliable infrastructure operation an impossibility. Relocating the project became the only option. In 2014, SAWS faced similar impasses when it shelved three private projects due to largely fruitless efforts to work with restrictive groundwater conservation districts.
These are only a few in a long line of examples that exhibit how current water laws in Texas enshrine uncertainty and risk for both the private and public sectors, precluding opportunities to work together to build inventive project ideas and bring clean water to Texans.
Competitive markets for Texas water will foster the development of water supply to meet current and future demand while also protecting the environment and promoting conservation. The time is ripe for water policy reform uplifting the values that our home state is known for: competition, good science, and freedom to innovate.