Water Shares

Imagine this: Your new neighbors install a powerful pump in their water well, and your well— your drinking water—dries up. In Texas, you would have no legal recourse, because Texas is the only state that still honors the Rule of Capture. (See “The Rule”) A recurring nightmare in Texas water law and public policy, the rule has governed water usage in Texas for more than a century. Many policymakers acknowledge the policy has to change. A model for water management in Texas exists, and is tried and proven. We just have to look back a few hundred years.

When the Spanish arrived in Texas in the 18th century, they implemented a sensible, equitable water policy. Spanish water was free for everyone, not a commodity to be bought and sold.

My book, Spanish Water/Anglo Water, traces the history of Spanish and Anglo water management in San Antonio, where millions of gallons of Edwards Aquifer water emerged from countless springs to create the San Antonio River and San Pedro Creek. There were so many small springs and seeps then that Del Weniger referred to the area in his 1984 book, The Explorer’s Texas, as a “sponge.”

Upon arrival in San Antonio in 1718, the Spanish began digging irrigation ditches known as acequias. Eventually the acequia systems grew to a combined length of 50 miles and comprised the first municipal water system in the United States. Gravity still moves water through segments of this engineering marvel almost 300 years later. In a 1731 decree, Spanish Viceroy Casafuerte established the first water conservation and allocation policy in Texas. It required unused water from the acequias to return to a river or creek—the first environmental flow policy in the state.

Water was free in San Antonio until the Spanish left. Then San Antonio began to grow too large to be served by the acequias. The water, which traveled in open ditches, regularly became contaminated with cholera. And as San Antonio grew, it needed fire hydrants to protect downtown buildings. The City Council knew the city needed an underground water system, but could not afford to build it. So the council outsourced water distribution to a private corporation, San Antonio Water Works Co., which began delivering piped water to the city in 1879.

Many San Antonians were unhappy to see water, a necessity, become a commodity they had to purchase. It didn’t help that the largest shareholder in the water company was a Yankee banker, George Brackenridge. For the next 50 years, Brackenridge became a focus of populist rage. Several mayors were elected after using Brackenridge as a convenient scapegoat for the city’s decision to privatize water.

By 1890, rapid population growth and periodic droughts had diminished the river’s water supply, and the water company had to drill deep wells into the Edwards Aquifer to quench the city’s thirst. Ironically, the drilling dried up Brackenridge’s own head-of-the-river spring, and he had to sell his home to a charity. To this day, San Antonio is the only major city in the United States that depends fully on groundwater.

In Texas, the rule of capture means the person who owns the land owns the groundwater below it. Surface water like rivers and lakes is controlled by the state. The Texas Supreme Court established the groundwater policy in W.A. East v. the Houston and Texas Central Railway Company in 1904. In the case, the company dug a well for water to be used in its machine shops and dried up the well of a neighbor, who sued. The court established the rule of capture based on English common law, arguing that it would be impossible to determine the amount of groundwater and how to share it, and that any attempt to limit a landowner’s water use would impede development. In 1917, citizens amended the Texas Constitution to add that “responsibility for the regulation of natural resources, including groundwater, rests in the hands of the Legislature.” But the legislature has not eliminated the rule of capture, only created a complicated regulatory structure to mitigate it.

In 1949, the legislature created groundwater conservation districts, or GCDs, which allow communities to ration water among residents. These agencies have not solved the rule-of-capture problem. Farmers and ranchers appreciate the protection their local GCD provides from water miners, but many times these same farmers and ranchers become furious when the GCD limits the groundwater they can use for irrigation. Some have sued GCD for compensation. The Texas Supreme Court will soon consider Edwards Aquifer Authority v. Day, which could settle the confusion over groundwater law for everyone.

The story of San Antonio’s water management remains a cautionary tale for the state. In 1993, two real estate developers drilled a well—the infamous “catfish farm well”—into the aquifer that produced enough water for a quarter of the city’s population for a year. Yet the city and state could do nothing to stop them. In response, that same year the Legislature created the Edwards Aquifer Authority, which now governs the aquifer.

The Edwards Aquifer Authority works with other Groundwater Conservation Districts in the area to manage the precious resource. But local control over water will not be enough over the long run. There must be a statewide solution. For one thing, the jurisdictional boundaries of some Conservation Districts do not coincide with the local groundwater pools. As Southern Methodist University historian David Weber observed in 1976, “There is a saying in the West that ‘water does not run downhill. It runs towards money.’” Without a coherent, statewide water policy, entrepreneurs like T. Boone Pickens and others are going to find a way to sell water from rural farming communities to thirsty cities like San Antonio. In rural areas, land prices are determined by their water sources. If that water is sold to cities, we could destroy the rural tax base and the lifestyle it supports.

State lawmakers could avoid this scenario by adopting a version of the sensible strategy employed by those early Spanish settlers in San Antonio. They focused on how water was to be divided equitably for everyone, no matter where they lived or whether they were rich or poor. The special body of law for the colonies, the Recopilación de Leyes de los Reynos de las Indias, laid out the Spanish governors’ primary duty: to ensure all inhabitants had adequate supplies of water.  The Spanish recognized water was precious and administered for the benefit of all people—not just Spanish settlers, but also the Native Americans they encountered.

Of course, reinstating a long-forgotten water policy is easier said than done, no matter how well it may have worked.  Our current system involves many state and municipal entities, and operates largely in reaction to water permit applications.  No one person or agency has the authority, like the Spanish governors had, to ensure everyone has adequate supplies of water.  Our way of doing business favors wealthy Texans, who can hire the best lobbyists and lawyers to make sure their interests are served.  Texas would essentially have to create an entirely new set of policies designed to balance the interests of private enterprise with the good of the community as a whole. It won’t be easy, but it will be just as hard to avoid radically changing the status quo. The fact is, the population in Texas will continue to grow, and the state will have to come up with a way to share the water fairly and equitably. As the history of San Antonio shows, it can be done.

 

Charles R. Porter is an adjunct professor at St. Edward’s University in Austin and is a testifying expert in water rights, real estate and construction nationwide. His most recent book is Spanish Water/Anglo Water.