Last week, the San
Antonio Water System (SAWS) staff announced their recommendation that SAWS no
longer pursue any of the three projects that had been proposed for importing
large amounts of ground water from rural Texas to San Antonio. Instead, they recommended that SAWS pursue
expanded brackish ground water desalination, in partnership with the City
Public Service, San Antonio’s electric utility.
Kudos are due to SAWS President and CEO Robert Puente for choosing a
closer-to-home strategy that, along with continued efficiency improvements,
will help the City meet its water needs far into the future. Here is hoping that the SAWS board and the
Mayor give full support to this sensible approach.
But, in the press release
announcing the decision, SAWS expressed concern about the role of groundwater
districts, saying:“The highest ranked proposal was unwilling to assume the risk of water being cut off by the groundwater district that regulates the supply,” said Puente of the project proposed by Abengoa Water LLC. “We are also unwilling to ask our ratepayers to absorb the cost of a project with potentially no water.”
The private proposals would have required annual payments of up to $85 million for thirty years, and a rate increase of approximately 9% to 12% in 2019, not including infrastructure integration costs. Groundwater conservation districts have the authority to regulate withdrawals of water from aquifers, often with little notice or process for appeal. SAWS has experienced the curtailment decisions of groundwater districts in the past.
Groundwater law in Texas leaves too much uncertainty and risk for the private and public sectors,” added Puente. “I hope that the proposers and cities across the state will join SAWS in calling for the legislature to change the law so Texans can build projects to meet growing future demand.”
While the predictability of ground water regulation by districts
can always be improved, the root of the problem is the Texas Supreme Court’s
2012 opinion in Edwards Aquifer Authority v. Day. As discussed in this TCPS
report, the holding in Day pushes
groundwater districts into granting pumping permits to all-comers or risk being
dragged into expensive “takings” litigation.
At the same time, however, the districts must also implement ground
water management plans that protect aquifer levels. In cases where ground water is connected with
surface streams, districts also legitimately strive to maintain spring flows to
the rivers and streams, flows that support surface water uses and fish and
wildlife. As an added complication, many
districts enter this decision process without sufficient funding to gather the
science necessary to understand how much pumping the aquifer can really sustain
over the next several decades.
The only way districts can manage in this
rock-and-a-hard place situation is to maintain an option to cut back all
pumpers if ground water use begins to cause the aquifer to drop below
management goals. Some districts do that
via shorter-term permits that must be periodically renewed. Others do it through permit conditions that
allow the district to cut back pumping to protect aquifer levels and/or spring
flows to achieve management goals. Understandably,
that kind of flexibility presents difficulties for a municipality needing
long-term secure supplies or for those looking to finance (and profit from) large
ground water export projects.
Mr. Puente is right when he calls for legislative action, but
it’s not really about ground water districts. The more central problem is the
state’s long-standing failure to come to grips with balancing private property
rights and public interest in the management of groundwater. The central question that will need to be
addressed by the Legislature is: does
the Day case leave the state any
options for striking a balance that increases regulatory certainty while
providing for effective ground water conservation and management?
Mary E. Kelly, for the Texas Center for Policy Studies
