Porter discusses the past, present and future of water rights in Texas.
This is Part Nine in an occasional series of Q&As with Texans involved in issues of the environment and energy. (Read Part One with Bee Moorhead here, Part Two with Andy Sansom here, Part Three with Katherine Hayhoe here, Part Four with Patrick Kennedy here, Part Five with Michael Banks here, Part Six with Gabriel Eckstein here, Part Seven with John Nielsen-Gammon here and Part Eight with Tad Patzek here.)
Charles Porter is a professor, author, and an expert on water rights and real estate. He is an assistant professor at St. Edward’s University in Austin, where he teaches history courses as well as a class on water use as a global challenge.
Porter’s award-winning book Spanish Water, Anglo Water, traces the fascinating history of water in San Antonio, from its origins in the equitable and free Spanish approach to the emergence of the Rule of Capture and the view of water as a commodity.
An expert in everything from construction management to brokerage ethics and water rights, Porter has testified in more than 300 court cases since 1987. He’s also won Realtor of the Year and teaches continuing education courses for the Texas Real Estate Commission.
His latest water book, with the tentative title Sharing the Common Pool: A Layperson’s Guide to Texas Water Rights, will be published early next year.
Observer intern Priscila Mosqueda asked Porter a few questions about water rights and policy in Texas. Our Q&A, edited for clarity and brevity, follows:
In your book, Spanish Water, Anglo Water you talk about water being free under the Spanish and becoming a privatized commodity as San Antonio grew. How did San Antonians take the change, what did the change mean for Texas water policy then and how does it affect our policy now?
San Antonians took it in several different ways. Some embraced the convenience of having a water tap at their property instead of having a well they had to worry about if they weren’t close to a river, or having to haul water to their home. They definitely liked the fact that they had access to a water tap. Some of the earliest folks that signed up to have a water tap had their water lines taken to their gravesites so they could water the gravesites of their families, which was interesting. However they didn’t all take to it right off, even though the fee was as little as $9 to $12 per year with unlimited amounts of water you could take.
One of the major reasons the water system was put in was to put in a system of fire hydrants downtown to deal with fires. As cities grew, they began to see major fires. One mistake in one stove burns down blocks – there’s a safety risk and a value risk. As city real estate begins to be more valuable than rural real estate, the bank’s going to require you to have some sort of insurance on buildings – one of the risks you have is not having any kind of fire protection. The fire protection that was available then were basic bucket brigades or horse-pulled water containers, so fire hydrants made a big difference. From the fire hydrant industry, then came the first Sanborn insurance maps, which were drawn like aerial photographs of the city showing where fire hydrants were, and a line drawing of size and shape of the buildings so insurers could see how far away from each fire hydrant they were. So you begin to see this total interrelationship between water and insurance and buildings. The more you could insure buildings from fire, the more the central part of the city had a chance to grow.
The city had no concern nor did the people have any concern about whether [George W. Brackenridge, a prominent banker and businessman in San Antonio and member of the UT Board of Regents] or his partners would ever make any money from [the privatized water system] … one of the main sources of revenue was that the city of San Antonio agreed to pay them $150 a year for each fire hydrant in rent. Guess what? The city didn’t pay the very first time, so you’ll see in my book a picture of a lawsuit Brackenridge got against the city, the water company got against the city, because from the very beginning they never intended – you had to force them – to pay their bills.
They made him look like the bad guy but there were several things involved: He owned San Antonio National Bank; he was considered a Yankee Civil War profiteer (even though the bank also underwrote and gave credence to all the San Antonio city bonds); they still all hated him because his homestead was on the river (where Incarnate Word is now); he owned the water company and he owned the bank. So each successive mayor used Brackenridge as the evil monopolizer, which of course was wonderful except for the fact that the cost it took Brackenridge 14 years to recover the investment of running one tap to a house, if you paid your bill on time.
When did they [the city of San Antonio] start charging for water?
The contract went into effect in 1879.
Until about 1924 there was a fixed price for unlimited water. There was a big debate then once the Belgians—a guy from St. Louis bought it from the water company and sold it to the Belgians—tried to operate it but of course they were devastated by World War I. They sold it again to the city of San Antonio in 1927, but in that interim period, people all over the country decided, ‘I can’t operate these water companies for fixed fees with unlimited use, we ought to have meters’. But the people resisted the meters. They didn’t trust the meters so there was a lot of publicity and a lot of education to try to prove to the people that the meters were fair. People thought meters weren’t reliable or rigged, and in reality they said, we don’t want to pay any more for water and so we want to figure out any way we can to have unlimited use for unlimited amount of water and keep the prices as low as possible, which the effect today is, we still across the board don’t pay an adequate amount for water to support our systems.
Do you think that in Texas, that people would ever not resist an increase in water rates? Do you think it would be possible to convince the public that that’s what we need?
I think the people will always initially resist any increase in any fee in any way, not just water. But eventually I think with education what people realize is that if you want to have some kind of reasonable water availability at your tap, you’re going to have to pay to advertise the system, to maintain the system, for additional resources for the system. If you want Texas to grow, that growth in large degree depends on our water resources. If you don’t conserve it, enhance it, find new sources, protect the system you’ve got, growth won’t be here, therefore you won’t have a job, therefore you won’t live here anymore. I think it will be an uphill battle continuously to be able to a charge a fair rate for what it really costs to maintain a quality system.
What kind of [rate] change are we looking at? Compared to what we’re paying now, what kind of percentage increase would actually be beneficial?
The problem with answering that question is that it’s different in all areas of the state. The worst drought in Beaumont’s history is double the rain that El Paso gets [in a year]. There has to be a formula for the rate that will be fair and enough money for maintenance costs for the system, but also to develop new resources, to advertise fairly the cost of those new systems, include reserve for replacements, anticipating problems in the future, and then have an agreeable return on investment not only for city but also for any private folks. Why would you invest your money in something if you’re not going to get it back for 14 years and not going to get any return on [it] for the 14 years?
There are three major uses [of water]. There’s domestic/lifestyle or residential use, industrial use for power plants, etc., and there’s municipal uses. The fourth is irrigation, and generally speaking irrigation uses 70 percent of all our water resources around the world. Without irrigation for agriculture there wouldn’t be any cotton growing in Littlefield, Texas. I think you’ve got to look at a holistic approach to all the water and understand all surface water and groundwater relate to each other conjunctively – in other words, what happens on the surface as far as diffuse surface water runs underground into an aquifer and pops up again as a spring and makes a creek or a river – all those waters relate conjunctively and change all the time.
So along those lines … do you think that there needs to be some sort of reform in the law in Texas that takes that into account, or do you think the Rule of Capture is viable still?
I think the Rule of Capture is here to stay and it’s fine. The consequence of that is that the areas of the state that do not have a groundwater conservation district, like Bulverde, are very vulnerable to the fact that the Rule of Capture can have the biggest pump take the water away from them. Groundwater conservation districts aren’t too concerned about the Rule of Capture because in reality they get to issue permits for the most important part of the use, which is industrial and irrigation use – so they can manage the groundwater that way. Now there are areas in the state that have no districts. There’s a chance that they’re vulnerable to the Rule of Capture. As far as abolishing the Rule of Capture, that was a ruling in a court and it’s been upheld so many times I don’t think that’s going to happen, I don’t think we’ll legislate that.
The other approach is the conjunctive approach. We’re starting to do that. We recognized many years ago that water ignores political boundaries. That’s why instead of individual districts based on political boundaries we have water management areas. I had trouble answering, “Should all water be owned by the state of Texas?” Those horses are out of the barn already. But by the same token my worry is that even if all the groundwater is owned by the state, with the way politics goes these days, whoever has the most money then will get all the water. So right now I think it’s great to have groundwater owned privately because we’re such a diverse state geographically and geologically that it’s best to have groundwater managed by people locally who understand the local aquifer and groundwater.
Districts do regulate and manage, but a lot of times it’s hard to tell – landowners are never going to admit they’re [pumping water] maliciously to harm their neighbors, being wasteful or negligent (all restrictions under the Rule of Capture); so as far as that goes, do you think there’s a more quantifiable way to measure and limit how much they’re pumping?
I think the way to do it is, and this is very controversial, on irrigation waste you have to have a meter which proves your historic use and the districts and super districts like Edwards Aquifer Authority manages that historic use to make sure you’re allowed a certain amount of water based on your permit. The big hole I see is the domestic livestock use, where you’re exempted up to 25,000 gallons a day from any kind of permit for a domestic livestock well. Even though it says you’re supposed to make your well incapable of taking 25,000 gallons a day, we don’t know when we come up with our model of available groundwater, we make a good guess about what the exemptions are out there. But I can tell you about the way Texans feels because I teach the class to adults all the time around the state. I tell somebody you can drill a domestic lifestyle use well as long as you don’t make it capable of anything more than 25,000 gallons a day, then you don’t need a permit. But if I go up and tell you to change your well and make it incapable of taking more than 10,000 a day instead, that landowner is going to say, “Well, wait just a second, what about my other 15,000 gallons I had a right to?”
But nobody actually uses that much [25,000 gallons per day], right?
Even though nobody uses it, so my suggestion is – and this is going to be tremendously controversial and everybody will scream – if I own my well, my farm, my ranch, I’m gonna put a meter on my well so I can prove my historic use. That way if they ever tell me to cut me back I can prove that I’ve used it for this, for that, and I’ve used x number of gallons over time, that way it’s only fair. The way we traditionally do things in Texas, which is the fair way to do it, if we make a policy change on water, and you have some kind of period of time where you can prove what your historic use was, then we tend to protect historic uses that are beneficial … If you’re out there investing in a ranch and you’re gonna grow hay to sell you’re going to want to make sure you’ve got enough water; if you base your whole livelihood on that and the government takes away that livelihood and you’ve met all the rules, then under our Constitution, thank goodness, you’re justly compensated. If not then there’s no reason for you to take that kind of risk, right?
I know it’s hard to simplify all of this because it’s obviously very complicated, but what do you think if there was one comprehensive solution, even if it’s a series of changes, that we have to make in Texas?
I think we’ve got to educate and give incentives to conserve water at every level – all uses of water. We’ve got to go and look for new sources like desalination of water and we’ve gotta be prepared to pay the fee for that, and we’ve got to do it now because to get the right-of-way to run the lines from a desal plant to run to San Antonio [from the Gulf] would take 10 to 20 years. … The other part of the equation is to educate the public to understand the long-term approach to water policy and that is if we want Texas to grow or maintain a stable economy for us to live and raise our children, we’ve got to have a long-term water policy and understand that it’s going to cost more and more each year to maintain our systems. We’ve gotta have systems that don’t leak; we’ve got infrastructure that’s now over 100 years old – it’s got to be repaired. And we’ve got to find ways also that big cities that have great bond ratings to come out and help little cities that don’t, develop. And that’s what this last proposition did that was passed, thank goodness last fall, allowed the state to go out and use their credit to issue bonds that they can then help smaller cities because you know, I don’t want to invest my money in Robert Lee, Texas because it’s a little bit riskier than investing in Houston.
So that brings up the whole rural vs. urban…
And the third thing is rural vs. urban – we’ve got to make the hardest choice of all. How do we choose between rural and urban lifestyles? How do we protect rural lifestyles when the water is out there in the rural areas and we’ve got people growing in the cities? We want to do both. How do we come up with a policy like that? I do think there’s enough water resources in Texas, just underground – groundwater that’s brackish water – but we’ve got to figure out a way to make those desal plants work and also do something with the by-product of the desal. We can’t control the rain but can sure enhance it, and I think we ought to charge in all directions at once and make water – here we go – our number one policy of everything we do in Texas and that’s going to make people frustrated with me. But everything stems from water – if you don’t have water, you don’t have an adequate tax base that can pay for public services in cities, if you don’t have water you won’t have people in cities that can pay for the other social services we get – you’ve got to look at the most basic thing that we’ve got to have – you’ve got to have water. If you don’t have water, the land’s worthless, you can’t build a city there. So water is our base, it’s our spiritual base, it’s our base to everything and we’ve got to recognize it as that. Now you’ve got me preaching.
What happens if we don’t do this – what happens if we don’t make any changes – we don’t limit, we don’t conserve, we don’t give incentives…?
What’s going to happen eventually is that the state’s growth is going to have to be stymied. As the State Water Plan says there’s simply not enough water in Texas to cover the growth that we anticipate. Therefore if there’s not enough water to cover the growth we won’t have the growth. Once that spiral starts, we don’t want to see people abandon our cities … When population leaves the people that are left have problems and it’s hard to generate interest to come back – the whole Rust Belt is going though that. But we’re smart enough and we’re courageous enough and we’re far-seeing enough that we realize we’re not going to let that happen to us. And you’ve got to look at it from the perspective of an overall policy and remember the most basic thing about water – all water relates conjunctively in one hydrological cycle. And we’ve gotta look at it that way. Make me benevolent dictator and I’ll straighten it all out.