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Whose Water Is It, Anyway?

Mostly, that's decided by appointees who aren't accountable to the voters.
by Published on
photo by Jen Reel
Bob Wynne waterskis on Lake Travis

Before the summer of 2009, Bob Wynne could stand on his expansive deck high above Lake Travis and look out over flat, shimmering water. It was the perfect surface for the thin, 68-year-old dentist to slalom behind his competition-level Ski Nautique. But last August, Central Texas was embroiled in one of the worst droughts on record. Lake Travis dropped 50 feet, and his view became acres of muddy lake bottom.

Wynne could no longer glide across the lake’s placid water on skis. But he could have donned waders and hiked across it instead.

Homeowners are among many groups that make demands for Lake Travis’ valuable water, and Wynne knows it. Heck, he’s from Houston, an epicenter of the staggering population growth straining Texas’ water supply. But he also knows that a single, unelected state agency—the Lower Colorado River Authority (LCRA)—controls the Colorado River and a string of reservoirs along its route to the Matagorda Bay.

Wynne had heard that rice farmers in Southeast Texas drained much of the water from Lake Travis. But over time, he learned that current and soon-to-be power plants downstream, like the proposed White Stallion energy center just off the Gulf Coast, were draining Lake Travis as well.

So Wynne decided to sue LCRA to keep Lake Travis full.

The state lawsuit, and the issue it addresses, gives a glimpse into the chaos surrounding how water is used and managed across the state. It also reveals the conflicts of interest among the unelected few who decide where our water goes and why.

Wynne didn’t have to go far for legal advice. His younger brother, Ken, a prominent commercial business attorney, lives a stone’s throw away. In the suit, the Wynnes argue that the LCRA, established to protect the Colorado River and the residents within its basin from ravaging floods, had illegally evolved into a for-profit water broker. The brothers paint the agency as out of control and unaccountable, a government entity intent on acquiring greater and greater power.

Among the many allegations, the Wynnes challenge the constitutional authority of the LCRA to own coal-fired power plants. In a section sure to rile environmentalists, the Wynnes cite the release of freshwater into the ecologically sensitive Matagorda Bay as a reason for lowering Lake Travis. The Wynnes are asking that the court order LCRA to maintain a water level on Lake Travis that can support recreation, at all times.

The LCRA says in a statement that it will “vigorously defend its right to manage the Highland Lakes for the benefit of the people of Texas.” The agency also says Wynne doesn’t have the right to file the suit.

Many water wonks dismiss the Wynne suit as frivolous, even comical. But while Wynne’s arguments may not hold up in court, experts concede his complaints are legitimate.

In 1967, the LCRA started using Colorado River- water to cool coal-fired plants downstream. The LCRA soon started building power plants. It now owns controlling stakes in two plants, both of which require significant amounts of water. Today, more than 90 percent of the agency’s income is generated from wholesaling electricity. In 2009, the organization employed 2,300 people and reaped $1.3 billion in revenue—more than the Whataburger hamburger chain.

To some, the Wynne brothers come off as petty and well-to-do rich folks trying to preserve their playground at others’ expense. Their grandiose lakeside homes sit within a gated community next to a private airstrip. But they say the suit is not a self-serving attempt to preserve Lake Travis for water skiing. To them, the suit is a campaign to benefit all Texans.

“We were given a rock-solid upbringing by two hardworking, church-going parents. Undoubtedly, we’ve been blessed in our lives. Now we are both in a position to undertake endeavors for a higher purpose,” says Ken Wynne. “There’s no money in this for Bob and me. Our satisfaction is in trying to right what we perceive as a wrong.”

 

Most anyone who talks about the future of water in Texas mentions the number 46 million. According to the Texas Water Development Board
an agency tasked with developing a statewide water plan—that’s how many Texans there will be in 2060, nearly double the state’s current population. Most elected state leaders see growth as a boon to economic development and a higher quality of life. But the rapid growth also presents a crisis for the state’s already stressed water supply.

In Texas, water is divided into two categories, groundwater and surface water, meaning all of the H2O found in our lakes, rivers, and streams. (See “The Rule”) No entity or individual actually owns surface water in Texas. According to the Texas Constitution, that water belongs to the state, and you and me. The right to use the state’s water is permitted by the Texas Commission on Environmental Quality.

“Currently, there have been more water rights allotted for many of our rivers than is actually in them,” says Andrew Sansom, director of the publicly funded Texas Rivers Institute and former director of the state Parks and Wildlife Department.

While many private industries and agricultural interests hold water rights, the majority of the state’s surface water is controlled by state agencies such as river authorities like the LCRA. These agencies have a duty to manage the water responsibly. Water authorities across the state are positioning themselves for the continuing population boom, and feuds are erupting among them. The intergovernmental turmoil straddles city, county and state lines.

According to the website texaswatermatters.org, North Texas includes 12 of the 20 fastest-growing communities in the state. The region also uses more water per resident than most other parts of the state. To get more water, one of the area’s largest water suppliers, the Tarrant Regional Water Board, recently joined Texas Attorney General Greg Abbott to sue the state of Oklahoma to get at its supply.

Though Texas owns partial rights to pump from the Red River, that water’s too salty for use. So the board applied for an Oklahoma permit to draw from the Red River’s northern tributaries. The Oklahoma Legislature responded by slapping a moratorium on exporting water across state lines. In the brief, Attorney General Abbott challenges Oklahoma’s moratorium, claiming the board’s water rights to the Red River extends to the streams flowing down from the north. A U.S. district court judge sided with Oklahoma, but the decision is being appealed. Some experts see the case going to the U.S. Supreme Court.

In East Texas, where water’s abundant and development sparse, the management of surface water is no less contentious. In 2007, the Lower Neches Valley Authority feared the construction of the Columbia Reservoir, slated for management by the Angelina-Neches River Authority upstream. The Lower Neches Valley Authority thought the reservoir would hamper its own water sales to massive petrochemical plants along the Neches River. Robert Stroder, the authority’s general manager, said FBI agents “showed up on my doorstep” and were concerned about the potential national security repercussions if the flow of water were curtailed, and petrochemical production cut along with it. Maintaining a robust domestic production capacity is considered a national security priority. Stroder used that reasoning to invoke a Homeland Security clause and submitted an amendment to the authority’s water rights to TCEQ to make sure the plants down stream get the water they need.

The Angelina-Neches River Authority, on the other hand, saw the maneuver as an attempt to steal its water and pursued the battle into arbitration. The authorities recently worked out a settlement, which has yet to be disclosed.

“These water battles are the result of a system that’s utterly broken,” says one of Texas’ top environmental lawyers, Rick Lowerre. He’s currently fighting the Brazos River Authority’s attempt to secure all future water rights within its basin.

The Wynnes are just two among many users fighting to protect their water rights. While Lowerre calls the Wynne suit “nothing but a PR stunt,” it exemplifies how much power average Texan’s have over their water. Residents on Lake Granbury and Lake Corpus Christi share the Wynnes concern about how excessive lake drainage destroys recreation, property values and local economies.

Judy McHugh, the president of the Lake Granbury Waterfront Owners Association, says that when her group challenged the Brazos River Authority over its management practices, the authority’s general manager, Phil Ford, responded that the water belonged to the authority and that it would do what it wanted.

Community associations ring Lake Travis and provide the LCRA with feedback at stakeholder meetings. But should any river authority operate against the wishes of local residents, little recourse exists come election time. Except for the San Antonio River Authority, members of the state’s 13 river boards are appointed by the governor.

 

Over the past year, El Niño has delivered a deluge of rain, about 50 percent more than average. Lake Travis is sitting at capacity, and the Wynne brothers are back on the water. It’s just after 6:30 a.m. in late May, Bob’s preferred time to ski. Ken looks back and shouts, “Ready?” Floating in the water behind the boat, Bob raises his hand, gloved to better grip the ski rope. He gives Ken thumbs up.

Ken hits the throttle, ramping the boat out of the water and up to 40 mph. Bob pops up on a carbon-composite slalom ski. Feet situated heel-to-toe, he arcs outside the boat’s wake. As he reaches the apex of the turn, Bob drops his outside arm from the rope, allowing him to lean over just a bit further before slicing back across the wake in the opposite direction. With the grace and skill of a person a third his age, Bob skims across the calm surface, a focused smile spread across his face. An orange sun beams from behind a veil of intermittent gray clouds that soon bring more rain.

The brothers retreat to their boat slip. There the Wynnes philosophize on the importance of water in their lives. Bob’s love of water is lifelong. “He’s always operated more naturally on the water than on land,” recalls Ken. After starting a dentistry practice, one of the first items Bob bought was a boat. In 1993, he semi-retired and now lives on Lake Travis four days a week. Despite creaky knees, Bob skis almost every morning when he’s at the lake.

Pointing to the shoreline, Bob says, “See that strip of brown between the grass and the water? The lake’s dropped 11 inches in the past week.”
In his voice I sense just how disheartened he feels when it disappears.

Ken interjects with sermon-like repose. “How long could you live without water? There is no more precious resource. Without it, life does not exist.” he says. “Water is a gift from God. It falls from the sky. We pay nothing for it.”

“We are at a point in history where demand is beginning to outstrip supply,” Ken continues. “Now, money is entering the scene. With money comes greed and power.”

 

Water rights are granted in perpetuity, but the state of Texas can reclaim all or part of a permit if it deems the holder isn’t using the full allotment. Such cases are remarkably rare. Those who hold water rights view them as private property, something to be bought and sold. Ironically, state river authorities often pay to reclaim the water rights the state allocated.

The LCRA is in a precarious and powerful position as both river steward and water marketer. The same agency endowed with protecting the Colorado River, also funds itself by selling its water. Similar conflicts exist at nearly every river authority, statewide.

“Ever since this area was founded … the population’s doubled every 25 years,” says Robert Cullick, the LCRA’s spokesman. “How do you double how much water a river will yield?” The state’s answer: Build dams.

In the 1940s, six dams were constructed in the Colorado River’s lower basin, creating the five Highland Lakes. Two, Buchanan and Travis, were designed to accommodate fluctuating water levels.

The state gave the LCRA rights to the water in the reservoirs—up to 1.5 million acre-feet, depending on rainfall, and a guaranteed 400,000 acre-feet regardless of drought conditions. (An acre-foot of water is one acre a foot deep, or 325,851 gallons.)To meet growing demand over the last 70 years, the LCRA has bought an additional 600,000 acre-feet of water rights.The LCRA now owns almost all of the water rights within the Lower Colorado River basin.

Just as the amount of water LCRA deals in has changed, so has its customers. In 2009, the LCRA sold 217,800 acre-feet of the water it controls to cities. Another 105,800 acre-feet went to industrial uses, including the LCRA’s coal plants and the South Texas Nuclear Project. But the largest consumers are agricultural users, primarily rice farmers. They bought 509,800 acre-feet.

During last year’s drought, only 32,600-acre feet of water from the LCRA reservoirs flowed through to Matagorda Bay. By comparison, about 154,000 acre-feet of lake water evaporated into air.

The LCRA deals with this duality to the best of its abilities. “I don’t want to defend any of these river authorities, but using the LCRA as a poster child is a bit unfair. They do a better job managing the water than most,” admits water activist Rick Lowerre.

“I’m generally a fan of the LCRA, especially under new general manager Tom Mason [see “Full Stream Ahead,” Feb 7, 2008], says Andrew Sansom of Texas Water Matters. “Their size allows them to invest in some of the state’s top scientists and they’ve done fairly progressive work.” The LCRA claims its coal-fired plants, which account for 50 percent of its total energy production, are among the world’s most efficient in terms of both water consumed and emissions released.

The primary problem, says Lowerre, is a lack of leadership from within the capital. In 1997, the Legislature divided the state into 16 water-planning regions, which submit regional water plans to the Texas Water Development Board. The regional process resulted in the creation of what Lowerre calls “little fiefdoms.”

Each region clamored to maximize the water it controls to support more growth and reap more profits. River authorities support themselves through the sale of water and electricity created using water. For them, a growing population means more water and electricity customers, and therefore these authorities profit from the strain placed on the water resource they’re supposed to protect. The current system gives river authorities little incentive to push for more sustainable growth, or to call for greater water conservation.

“The governor and TCEQ decided the state should get out of the water management business and handed the power over to the river authorities,” says Lowerre. The river authorities—beholden to governor-appointed board members who often have business interests—claim the state directs them to sell water to anyone in need.

“We don’t pick winners and losers in a game of who gets water,” says Cullick, the LCRA spokesperson. “We meet growth as it occurs.” If that includes sprawling developments, impractical agriculture, and water-hungry power plants, so be it.

 

San Antonio is where water regulation bega
in Texas (See “Water Shares”). Tourists walk past the Alamo and down to the wide riverwalk, over arching stone bridges to quaint shops and Mexican restaurants. The agency that manages the water source, the San Antonio River Authority, holds a reputation as one of the most astute river stewards in the state.

In the 1980s, the authority sued the city for dumping barely treated effluent into the San Antonio River. “Our board members would show up to meetings with jars of sludge,” says General Manager Suzanne Scott. In 2007, the authority helped pass groundbreaking environmental legislation. The bill, Senate Bill 3, identifies the flows required in rivers and streams to maintain a healthy ecology, as well as the amount of freshwater needed by bays and estuaries. Today the San Antonio Authority’s environmental science department is assisting the enactment of the law.

The San Antonio agency differs from other Texas river authorities for two reasons. First, it holds the rights to less than 1,000 acre-feet of water, compared with the LCRA’s more than 1 million. This means the San Antonio authority has no water to sell and doesn’t use the river’s water to generate electricity. Scott says the authority is trying to procure more water rights from farmers so it can leave more water in the river and have a healthier flow.

Second, the board of directors is locally elected from the four counties through which the San Antonio River flows. That gives the agency the political jurisdiction to collect property taxes (on average, $23 per property every year) and the duty to look out for the public’s interest. “It makes our board directly accountable to the public,” says Scott. “We have to take a very holistic approach. Some of our constituents are residents, and others are business people.”

According to Lowerre, lack of accountability is a primary reason for the current turmoil in the agencies entrusted to manage the state’s surface water. Most Texans have almost no say in how publicly owned water is managed, and that leaves managing our most precious resource in the hands of a powerful few.

 

Ian Dille is a freelance journalist based in Austin.