This two-day conference on Rethinking Texas Water Policy featured educational presentations on groundwater and surface water policy by government, industry, and academic experts representing a range of groundwater and surface water interests and expertise. The speakers included distinguished state government officials, jurists, hydrologists, and academics from Texas A&M University, Rice University, Texas Tech University, Texas State University, and Texas A&M University-Corpus Christi.
Before assessing substantive regulatory change, one must understand all the issues relating to water policy—the legal, scientific, economic, and political complexities. Therefore, the conference was organized around these four complexities, with day one focused on groundwater and day two focused on surface water and also on how groundwater and surface water can be better utilized conjunctively.
On the first day of the Rethinking Texas Water Policy conference, Dr. James Griffin, Senior Professor of Economics and Public Policy at the Bush School of Government and Public Service, welcomed participants and challenged them to think long-term and “big picture” about Texas water policy, well beyond the next legislative session and Texas Water Code tweaking. He further urged them not to throw out ideas they deemed politically unfeasible.
Day One: Understanding the Complexities of Groundwater
Understanding the Legal Complexities
Participants were first treated to a legal panel moderated by Austin water attorney Ed McCarthy, which included Texas Supreme Court Justice James Blacklock, former Texas Supreme Court Justice Craig Enoch, and former Texas Court of Appeals Justice Jan Patterson. The panelists discussed the lack of legal precedent as a challenge to ruling on water policy cases and the role of science and expert testimony in deciding water related disputes, before moving into a conversation about the similarities and differences between groundwater, oil, and natural gas law.Understanding the Science: Texas’ Major Aquifers & Hydrologic Characteristics
The second panel was moderated by John Tracy, Director of the Water Resources Institute at Texas A&M, and included Larry French of the Texas Water Development Board, hydrologist Bob Harden, and Greg Stanton of the Texas Water Science Center. The panel’s focus revolved chiefly around the issues of artesian pressure and reductions in aquifer storage, and the lack of correlation between the two. The panelists also discussed how artesian pressure could be substantially reduced, but storage only slightly depleted. Another point of emphasis was the challenge of making rules that provide fair and consistent regulation of aquifers, when each one is different.Texas Water History
During the lunch hour, Dr. Charles Porter, Professor of History at St. Edwards University spoke about the history of water policy in Texas, beginning with over 180 years of surface water precedents as the dominant concern of regulators before groundwater rose to greater prominence in the current era.Understanding the Economics
Carlos Rubenstein, former Chairman of the Texas Water Development Board and former Commissioner of the Texas Commission on Environmental Quality, moderated the economics panel consisting of economists, James Griffin of the Bush School and Ryan Williams of Texas Tech University. The topics of conversation centered on some common misconceptions about groundwater, including the idea that loss in artesian pressure is not the same as a loss in storage in an aquifer. Suggested solutions to groundwater scarcity issues included adoption of Correlative Rights to limit landowners to a reasonable share of a common source of groundwater, avoiding discrimination among users and beneficial uses of water, a mitigation fund to protect land owners impacted by increased pumping, and the idea of groundwater bank accounts.Limitations on Sharing the Resource
The next panel included Kathleen Jackson, Director of the Water Development Board, Sarah Schlessinger of the Texas Alliance of Groundwater Districts, John Durand representing Texas Alliance of Energy Producers, and public policy strategist John Hockenyos of TXP, Inc. Moderator Marc Rodriguez, government relations consultant, guided the panelists through a discussion of issues considered by the earlier panels and their implications for water policy. Using a case study of the City of San Antonio, the participants discussed the economic importance of water, and the nearly impossible balancing act that local Groundwater Conservation Districts must perform to responsibly serve both landowners and the environment.Understanding the Political Constraints
The final panel of the day convened Texas State Representatives Tracy King and Four Price, former State Senator Buster Brown, and moderator, Texas A&M University water law and management professor Ron Kaiser. The experts shared their insight into the political nuances of Texas water policy. As the legislators spoke, they described the division on water policy as often a result of conflict between urban and rural interests, and predicted that despite increasing disagreement over water policy, there would be more legislation on groundwater in the near future.
Day one of the conference concluded with a reception in the lobby of the Annenberg Presidential Conference Center, where attendees were able to discuss the content of the day’s panels and follow up with speakers about specific concerns and questions prompted by the presentations made during that day’s groundwater panels.
Day Two: Understanding the Complexities of Surface Water
The second day of the Rethinking Texas Water Policy conference began with a welcome from Dr. Lori Taylor, Director of the Mosbacher Institute for Trade, Economics and Public Policy, who introduced the first speaker of the morning, former Texas State Senator and current Senior Advisor for Fiscal Matters at the Office of the Governor, Tommy Williams. Senator Williams observed that water resources are crucial for job growth, which he identified as the number one priority for the state. Senator Williams also praised the work of the Texas Water Development Board and SWIFT, before transitioning into the first panel of the morning.Understanding the Legal Complexities of Surface Water
Todd Votteler, Editor-in-Chief of the Texas Water Journal, moderated a legal panel consisting of Toby Baker, Commissioner of the Texas Commission on Environmental Quality; Austin water lawyer Doug Caroom; and Kevin Ward, General Manager of the Trinity River Authority of Texas. The panelists discussed the laws relating to ownership and use of surface water. All surface water in Texas is owned by the state, with use determined by junior and senior water rights, referred to as the prior appropriations system, which grants higher priority usage to whoever has owned a right to water for a longer period of time. Particularly during droughts, this system has proven inflexible, leading to both practical and legal challenges for water users statewide and for the Texas Commission on Environmental Quality, the state agency mandated by the Texas Legislature to implement state surface water policies.Understanding the Science
Next attendees gathered for another panel to illuminate some of the scientific issues surrounding surface water. Dr. Robert Brandes moderated the panel consisting of Dr. William Espey of LJA Engineering, Inc.; Dr. Larry McKinney of the Harte Research Institute for Gulf of Mexico Studies at Texas A&M-Corpus Christi; and Dr. Ralph Wurbs, senior professor at the Zachry Department of Civil Engineering at Texas A&M University, responsible for the water availability model used statewide to evaluate the surface water availability in the TCEQ water rights permitting process. Topics in this panel touched on water storage in reservoirs and estuaries, which contribute to environmental sustainability. The panelists also explained how water can be redirected to replenish wetlands and other coastal buffers, which protect against droughts, and the development of water availability models (WAMs) for preparing and evaluating water right permit applications.Legal Impediments to Conjunctive Water Use: Experience from Other States
Dr. Burke Griggs, law professor at Washburn University in Kansas and former state deputy attorney general, entertained conference attendees over lunch with a humorous but thoughtful exploration of the historical water conflicts between Kansas and Nebraska. The talk emphasized conjunctive use, but conceded that many assumptions about conjunctive use are unrealistic and some impediments can be good because they protect property rights.Understanding the Economics
Gabe Collins of the Baker Institute at Rice University moderated the afternoon economics panel, which included Sharlene Leurig of the Texas Environmental Flows Initiative; Carlos Rubenstein, former Chairman of the Texas Water Development Board and former Commissioner of the Texas Commission on Environmental Quality; and Maria Vaca, 2017 Bush School graduate and water capstone participant. The experts shared their thoughts on developing a more robust market place for Texas surface water rights, including converting water rights, keeping transportation costs low, and using fees to discourage consumption especially during periods of drought. Examples included the Rio Grande water market, sustainability practices in Austin, and the theoretical use of a water conservation fee.Understanding the Politics
In the final panel of the conference, Commissioner Toby Baker of the Texas Commission on Environmental Quality moderated a dialogue with Texas State Representatives Poncho Nevarez and Dade Phelan. The politicians discussed the tension in the legislature surrounding surface water, reiterating the urban/rural divide from the previous day and the challenges of balancing human use with environmental need, particularly regarding reservoir construction. As the panel concluded, one representative summed up his talk with one sentence, which was well-received by the audience: “Everything to do with water is maddeningly frustrating.”Closing Remarks
Concluding the summit, Texas State Comptroller Glenn Hegar summarized the highlights from the two days. Comptroller Hegar predicted that water would remain a prominent issue as Texas continues to grow. Echoing other speakers from the event, Comptroller Hegar emphasized how the complexity of water issues can make it hard to remove emotions and have a conversation about what is best for the most people. Ultimately, Hegar encouraged conference attendees to think about how to arrive at outcomes with winners on all sides, rather than winners and losers. The Bush School and Mosbacher Institute are grateful to all the speakers, sponsors, and participants for sharing their thoughts and ideas during two highly productive days spent Rethinking Texas Water Policy.