BY JONATHAN CANNON
HERALD DEMOCRAT
With a legislative charge to manage and conserve groundwater while monitoring its usage, the Red River Groundwater Conservation District is laboring to get on its feet.
However, the work may be moot as the Texas Legislature is expected to revamp the law in the next session and the Texas Supreme Court considers a groundwater case that could reform a century of groundwater rules.
Still, the board said it hopes to adopt temporary rules, bylaws and a management plan by the end of the year to bring those wanting to drill out of limbo.
Tom Bean Mayor Sherry Howard, who pleaded with the board for a permit to construct a water well to increase the city's capacity, was left in some uncertainty during Monday's meeting when the board tabled her request.
"It's just, you don't have any standards to measure against," said Greater Texoma Utility Authority Jerry Chapman, who serves as an advisor to the board.
Board President, and Leonard City Administrator, George "Butch" Henderson told Howard they would move quickly to establish rules. To help progress, the board voted to meet monthly.
The board, which has met five times including Monday, is going over the finer points of its bylaws and hopes to approve them at a meeting in August. The board plans to simply build on the core documents of other districts, adapting them to any unique issues of the Grayson and Fannin county district.
"We didn't try to reinvent the wheel," Chapman told the board as members went over the documents. "There's not a lot of changes you can do."
The board discussed details like choosing a fiscal year so they could adopt their governing document and move onto rules about well spacing and a fee schedule.
In a recent interview, Chapman explained that most conservation districts use spacing to regulate the number of wells and permitting requirements to control the amount of water pumped out of the ground. Without the regulations, the state could face a shortage of groundwater, among other problems, in coming years as the population is expected to double in Texas by mid-century.
In some areas, groundwater is already being pumped from aquifers faster than nature can replenish the underground water sources. "If this practice continues, Texas water costs will rise, land could subside, water quality could decline and people in some areas could run out of water," states a 2002 publication on Groundwater Conservation Districts by experts of the Texas A&M University System.
Chapman said the area served by the Red River district isn't staring these problems in the face yet. However, as water becomes a resource that is thought of more like oil and less like sunlight, the area could face water marketers and an aquifer that is shrinking too quickly.
Currently, most of the groundwater in Texas is being used for agriculture purposes, but "by the 2040s, the TWDB (Texas Water Development Board) projects that more water will be used by cities and industry than by agriculture," the TAMU publication states.
Cities like Amarillo, Bryan-College Station, El Paso, Lubbock, Houston and San Antonio use groundwater extensively to supply homes and businesses. Locally, drinking water sources are a mix of ground and surface sources.
In Denison, most customers are served by surface water from Lake Randell, which is supplemented by water transferred from Lake Texoma. Sherman customers are served by a combination of groundwater and surface water from Lake Texoma. Bonham water customers also receive surface water from Lake Bonham. While these three areas represent a large concentration of the two-county population, many rural consumers get their water from rural water supply companies and special utility districts that pump from wells.
All these wells are governed by "the rule of capture," which dates back to a 1904 Texas Supreme Court case, Chapman said. "This rule allows landowners to pump as much water as they choose, without liability to surrounding landowners who might claim that the pumping has depleted their wells," the TAMU document states.
However, Chapman said a current case has the potential to change that rule. The Court heard in February oral arguments in Edwards Aquifer Authority v. Day.
In 1996, Burrell Day and Joel McDaniel requested a permit from the Edwards Aquifer Authority to pump 700 acre-feet from the aquifer, but were only granted a 14-acre-foot permit, according to court documents. The Edwards Authority said it was because the pair wasn't able to prove historic usage, the way it determines the permit amounts.
Day and McDaniel sued, winning a summary judgment at trial court. The decision dismissed the partner's claims that their constitutional property rights were violated, but overturned the authority's decision, saying they erred in determining historic usage. The authority appealed and won in Appeals Court.
In January, the state Supreme Court took up the case and, after hearing oral arguments a month later, have been left with a load of amicus or "friend of the court" briefs to wade through.
Depending on how the Court decides, the case could disable the state's more than 90 groundwater conservation districts and leave the nine major aquifers and numerous minor ones unregulated. "Groundwater conservation in Texas would be finished," a brief from the Texas Alliance of Groundwater Districts says.
Such a decision could open the state to a free-for-all of water marketing and leave a future generation dealing with dry aquifers. Among other problem, they'd also be left to struggle from drought to drought, an experience former Lt. Gov. Bob Bullock wanted to avoid when he helped pass the enabling legislation for the districts, Chapman said.
However, McDaniel's attorney, Tom Joseph, said it's simply a matter of property rights. "If the sovereign needs what you have, the sovereign pays for it -- that's the American way, that's been the Texan way, except now," he told The Texas Tribune in April.