96° F Thursday, July 27, 2017

On April 17, at Giddings City Hall, the Lost Pines Groundwater Conservation District board members will be asked to vote on pending applications for the removal of water from the Simsboro Aquifer that lies beneath Bastrop and Lee counties, among others. It’s not an enviable position.

The amounts being requested add up to millions of gallons; it’s been estimated to be around 107 million gallons every day. According to some figures, that’s 4.4 times more water than our groundwater district estimates is available. But let’s be honest – the science doesn’t exist yet to say for certain what is down there. It could be more – it could be less.

So far in Texas history, the right of a landowner to do what he wishes with the water under his property has been upheld time and again in the courts. In 1904, here is what the Texas Supreme Court said about groundwater and the attempt to manage it: “The existence origin, movement and course of such waters and the causes that govern and direct their movements are so secret, occult and concealed, any attempt to administer a set of legal rules with respect to them would be involved in hopeless uncertainty and would therefore be practically impossible.”

Science has advanced some over the years; we now have technology that gives a little better look at what’s down there. Legislation and the law haven’t moved as fast.

What’s called the Rule of Capture (otherwise known as the Rule of the Biggest Pump), is what drives Texas water law – and has for more than 100 years – in fact, Texas is the only western state that continues to use it. It came over from common law in England and it’s in contrast to “reasonable use” or the “American rule,” which provides that the right of a landowner to withdraw groundwater is not absolute, but limited to the amount necessary for the reasonable use of his land, and that the rights of adjoining landowners are correlative and limited to reasonable use. The Rule of Capture basically gives landowners the right to “capture” as much water as they want, even if it leaves their neighbors high and dry. Once captured, they can do what they want with it, as long as it is not deemed wasteful or malicious. Including selling it to today’s oil boomers – the water marketers.

That’s a big selling point for these marketers. If fear is instilled that your neighbor is going to sell his water – possibly leaving you and yours high and dry – well, it is a lot of money vs. what amounts to a worthless piece of land once the water is gone.

One would hope that the Texas Legislature would take the bull by the horns, but so far they’ve only managed to issue weakly worded decrees and laws – as murky as a dying stream. In 1985, they authorized the establishment of underground water conservation districts with directions to conserve, protect, recharge and prevent waste of underground water – in effect opening the door for legal challenges when landowners (or marketers) believe the Rule of Capture is being thwarted. More recently, in 2011 with SB 332, the Texas Legislature recognized that a landowner has a vested ownership interest in the groundwater below the surface as an interest in the landowner’s real property. But it left a loophole, according to some, since it didn’t go far enough by naming specifically who owns the water.

Bastrop County is one of the fastest-growing counties in the state. That’s good news to some and not to others, but everyone agrees that the county will need more and more water.

On the agenda next Wednesday at Giddings City Hall, 118 E. Richmond St., these water marketing groups will be asking for permits to take water from the Simsboro Aquifer:

• Forestar Group (45,000 acre-feet/yr or roughly 40 million gallons daily)

• End Op (56,000 acre-feet/yr or roughly 50 million gallons daily)

Smaller asks not from marketers include LCRA, Manville WSC and Heart of Texas.

Together it amounts to a lot of water. That may or may not be there.

Other permits were issued before the LPGCD wisely decided to place a moratorium on the permitting process until some decisions were made by the Texas Water Board. These permits amount to an additional 40 million gallons of water every day.

Next door, at the Post Oak Savannah Groundwater Conservation District, which draws from the same aquifer as we do, there’s no limit on permits granted. In January 2009, Post Oak manager Gary Westbrook told the Advertiser that anybody who asks for a permit gets one. Everybody who applies pays a nice fee to Post Oak. For example, at that time, water marketer Blue Water paid $800,000 annually for the permits it has received. That’s no guarantee that the water Blue Water wants will be there when they are ready to start pumping, but it gives an idea of how much is at stake here financially.

On Monday, the Bastrop County Commissioners Court passed a resolution commending the LPGCD prudent and cautious management of the water that lies underneath and encouraging the board to protect and conserve our precious groundwater resource.

The board of our groundwater conservation district is “walking a thin line,” as Environmental Stewardship’s Steve Box said. They must figure out a way to protect and regulate while trying to avoid court battles. They need your support and input. More information about the district may be found at lostpineswater.org.

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  1. R. Tallichet says:

    Does a map exist where this water is located in Basttop county?

  2. Lydia says:

    Great article! Thank you!

  3. Svenska Lehrer says:

    This is just outright scary. We need to collectively stand up and refuse to allow our water to be pumped away.

  4. Linda Curtis says:

    There is a map , but it’s not online. If you come to Giddings on Wednesday night (or Thursday, for the overflow from Wednesday night), I have asked Steve Box of Environmental Stewardship to bring his great maps.

    Thank you, Bastrop Advertiser, for keeping folks informed!

    If folks need information about these meetings/hearings, they can call us at 512-535-0989 or contact us through the website at IndyTexans.org.

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