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Aquifer Authority Board approves Conservation Plan funding After enduring withering criticism from all quarters, the EAA Board held a special meeting on December 28 and approved a funding mechanism for the Habitat Conservation Plan. The vote was unanimous and there was no discussion. The next step is to submit the plan to the U.S. Fish and Wildlife Service for approval. The funding mechanism approved does not include the contentious rebates to cities that do not use all of their Edwards Aquifer water rights. Instead of rebates, the EAA approved other accommodations to entities that would have benefitted from them. New Braunfels will receive a conservation grant to help pay for a restoration project at Landa Lake, and San Marcos will least its unused water rights to the EAA for a time for storage at SAWS underground Twin Oaks Aquifer Storage and Recovery site. The details of how those accommodations will work are to be worked out at future meetings of the EARIP. Aquifer Authority Board votes down Conservation Plan funding In 2011, it has been 17 years since the Edwards Aquifer Authority was created for the purpose of managing pumping for protection of endangered species that depend on springflows. A fundamental aspect of this duty is the creation of a Habitat Conservation Plan that can be approved by the U.S. Fish and Wildlife Service. For over a decade, little progress was made on preparing this plan, and so in 2007 the Texas Legislature directed the EAA and other regional stakeholders to collaborate on producing it. The Legislature gave the EAA and the stakeholders a deadline of September 1, 2012. Historically, these regional stakeholders have agreed on very little, so they were basically sort of locked in a room together for four years until they could work out all their differences. Miraculously, they did so, and they even agreed on how the Conservation Plan should be funded (see the stories on this page below from earlier this year). The final step in submitting the Plan for Fish and Wildlife consideration is approval by the Edwards Aquifer Authority board. If the 2012 deadline for submission is missed, lawsuits could be filed in federal court and control of the Edwards Aquifer could fall into the hands of a federal judge, as happened in the 1990s, which was the entire reason the EAA was created. On December 13, the EAA board failed to approve funding for the Plan. The failure centered around whether rebates would be extended to the fees that pumpers would be charged to fund the Plan. Currently, pumpers that do not use all of their water rights get rebates on their pumping fees. For example, the cities of New Braunfels and San Marcos get rebates because they switched to getting much of their water from Canyon Lake and do not use all their Edwards rights. On the other hand, San Antonio uses most of its rights and gets fewer rebates. The stakeholder group did not address the rebate issue, believing it to be too political and not directly related to the issue of protecting endangered species. So it was left up to the EAA to decide one way or another and approve a funding mechanism. The belief that rebates could or could not be given was a factor in stakeholder approval of the plan. The cities of New Braunfels and San Marcos approved the Plan believing rebates were possible and that EAA would decide. But after those two cities approved it, the EAA came out with a legal opinion that said the funding agreement itself ruled out a rebate. At that time, the SAWS board had not yet considered the Plan; by the time it did so, it was under the assumption that rebates would not be possible. In any case, the EAA simply failed to decide, and any substantive changes to the funding agreement will require re-approval by the various stakeholders. So it now appears it will be very difficult if not impossible to meet the 2012 deadline. Before the vote was taken, Weir Labatt, who has been deeply involved in local water policy for three decades and currently sits on the Texas Water Development Board, said "This is the capstone of what the EAA is all about: put in place a Conservation Plan that protects the species at San Marcos and Comal Springs. If we don't, we will continue to go down as a region that continues to make bad decisions regarding water." On Dec. 15, the Express-News Editorial Board noted that part of the EAA's failure can be blamed on voter apathy. EAA elections are typically ignored, and last year low voter turnout resulted in the election of Lauro Bustamante, "a perennial candidate for public office" who finally won a seat somewhere by defeating George Rice, an eminent hydrogeologist who is one of the world's foremost experts on karst aquifers like the Edwards. Bustamante told the Express-News that he ran for public office because a home water test indicated his water is too acidid (Edwards water is highly alkaline, not even close to acidic). Bustamante was part of the 8-7 majority that voted against the funding element, and he was the lone EAA board member to oppose the entire plan. The Express-News Editorial Board suggesed the only rational explanation for his election is voters didn't pay enough attention to know what they were doing. New study outlines risks to Aquifer from land disposal of treated water In May of 2011, the United States Geological Survey published a fact sheet that summarized its fundings on increasing nitrate concentrations in Barton Springs. Nitrates are a nutrient that can cause blooms of algae when present in excessive concentrations. (see the Barton Springs page) In November, the Save Our Springs Alliance and the Greater Edwards Aquifer Alliance released a report that suggests one of the main causes for the observed increase in nitrate concentrations is the recent proliferation of small wastewater treatment plants that discharge effluent to the land surface in the watershed of Barton Springs. Small plants like these are generally held to much lower treatment standard than large municipal plants, and most are not regulated at all for nutrients like nitrogen and phosphorous. Although they are classified as "no discharge" facilities, meaning they do not release water directly to streams, the water and nutrients contained therein eventually does find its way to streams that recharge the Edwards Aquifer. The report recommends that regulatory standards be revised to provide for consistent, enforceable, and protective permit standards that will ensure facilities operate as intended—with “no discharge” to surface streams and aquifers. Get the entire report here. Cibolo Bluffs Forest Preserve created to protect Camp Bullis and Edwards Since 2007, the issue of land development around Camp Bullis has been on the front burner, mainly because intense development nearby threatens the army's training mission at the facility, but also because the same development is a concern for protection of Edwards Aquifer water quality (browse news items from previous years for a number of stories on this). In November of 2011, the Nature Conservancy formally took possession of a 1,244 acre-tract in north central Bexar county and named it the Cibolo Bluffs Forest Preserve. The property will be maintained to provide habitat for the endangered golden-cheeked warbler and free up the entire 28,000 acre Camp Bullis installation for military training. In the last decade or so, new developments around Camp Bullis have been forcing more birds onto Camp Bullis, and there were fears their increasing presence would limit the ability of the military to use portions of the property. Other concerns were that increasing light pollution would interfere with night training, and aquifer watchdogs were concerned that new developments over sensitive tracts would affect the quality of water that enters the Edwards as recharge. The new Preserve will also protect the Bracken Bat Cave, home of the world's largest colony of Mexican free-tail bats. To purchase the tract, Bexar county contributed $5 million and the Army $2 million. The purchase price was $6.2 million, so some money was left over to endow perpetual maintenance, although the Nature Conservancy says it still needs to raise more money to completely fulfill its conservation role. Aquifer protection tax break fails In August, a constitutional amendment was placed on the November ballot to provide incentives for landowners to adopt practices that would protect water (see story below). On November 8, the measure passed by a wide margin in Bexar county and other counties that depend on the Edwards, but it failed statewide and will not become part of the Texas Constitution. EARIP stakeholders approve Habitat Conservation Plan Back in June, regional stakeholders working to develop a management plan to protect Edwards Aquifer endangered species reached a consensus on the elements of the plan and how it should be funded (see story below). On November 7, the group formally approved the plan by a vote of 24-1, and members hailed the achievement as a historic day for Aquifer management. "No one has ever been able to get this diverse group of stakeholders to agree on a solution for the Edwards issue", said city of Victoria representative Jerry James. The plan still has to be approved by the board of the Edwards Aquifer Authority and the U.S. Fish and Wildlife Service. |
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Controvery erupts over Spring Lake development plan In October 2011, San Marcos Spring enthusiasts became concerned about a new Texas State Campus Master Plan that includes potential developments at the San Marcos Springs headwaters for additional golfing facilities. When discussions about renovating the Spring Lake area first surfaced in December 2008, they were centered on restoring aquatic and terrestrial habitats that had been degraded over the years by construction and operation of Aquarena Center (see “University to give most of Spring Lake back to nature”, San Marcos Mercury, Dec. 20, 2008). So many were surprised to learn that plans included a new driving range, a new parking lot, a par 3 and a par 4 hole, and a golf pro shop. A new railroad overpass proposed by the Texas Departent of Transportation would encroach on a portion of the University's golf course, so the two new golf holes would replace the existing 8th and 9th holes. The plans sparked debate about whether or not the University’s mission includes recreation and whether golf facilities can be compatible or are detrimental to a healthy and functioning ecosystem. Members of the Sacred Springs Alliance said the new golfing additions could damage the area’s archeology and ecology, and the group launched a facebook page and started a petition drive to persuade university regents to abandon the plan. "The citizens of Hays County and San Marcos spent millions of dollars of their tax money and voted to protect the Spring Lake Preserve, to protect Spring Lake," said Dianne Wassenich of the San Marcos River Foundation. In an online blog, golfer Scot Courney said a properly planned and well-thought out project could be an example of smart, effective and ecologically sensitive planning and growth. Naturalists pointed out that while it is constructive to engage in dialogue, many golfers have a mistaken perception of what constitutes sound land management. In his blog post, Mr. Courney described the area as not being “used, enjoyed, or managed properly” because it is overrun with cedar that is non-indigenous and a major water consumer. Neither of those claims are true – cedar is indigenous, low-water using, and an important component of native ecosystems (see the Brush Management page). The Master Plan is to be presented to the University System Board of Regents in November for a vote. You can see the complete plan here. UPDATE: On October 26 the San Marcos Daily Record reported that plans for the two new golf holes had been eliminated. The Texas Department of Transportation revised its design for the railroad overpass so that it no longer encroaches on the existing golf course. Plans for the additional parking, driving range, and pro shop were eliminated from the version of the Master Plan the Board of Regents will vote on in November, and additional study will be conducted. Opponents promised to remain vigilant in case they are added back in with a Master Plan addendum.
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Area mayors oppose higher pumping fees Whenever I go around and lecture on the Edwards Aquifer, I always go down a list of issues that have been left simmering and unresolved over the last 50 years. One of these has recently taken center stage: “Who benefits and who pays?”. When I ask my audiences if it would be reasonable to ask everyone who benefits from the Edwards to pay their fair share for Aquifer protection, the answer is always a unanimous “yes”. This ideal world, in which costs are shared fairly, is far removed from the real world and the current direction of things. In July, Aquifer fees for municipal and industrial pumpers were projected to triple after a regional cost-sharing scheme for a Habitat Conservation Plan to protect endangered species crashed and burned in the state Legislature. Originally, the plan was to implement equitable cost-sharing amongst all who benefit from the Aquifer by implementing a new regional sales tax, but that was not politically possible this year. Instead, developers of the Conservation Plan had to propose higher fees on cities and industries (fees for agricultural pumpers are capped by law). In September, area mayors began to voice opposition to both the higher costs and the species protection plan itself. Castroville Mayor Bob Lee sent a letter to state Senator Carlos Uresti that called for shelving the plan. Hondo Mayor Jim Danner said the higher fees would triple his city’s annual EAA bill and residents wouldn’t be able to afford it. Natalia Mayor Ruby Vera said the plan would $7 to a household’s monthly water bill and “It’s not fair and equitable.” The region’s deadline for submitting a Habitat Conservation Plan is 2012, and it must include a funding mechanism to be approved by federal agencies. Without an approved plan, management of regional water supplies could fall into the hands of a federal judge. Members of the group that developed the plan have said they would try again in the 2013 legislative session to secure equitable funding through a new regional sales tax. For now, higher fees for pumpers are the only option. Texas and Oklahoma break all-time national heat record; drought may last until 2020 Blazing temperatures from June through August resulted in both Texas and Oklahoma breaking a 117 year old record for the hottest average temperature recorded in any state, according to the Texas State Climatologist. The statewide average temperature was expected to be about 86.7 degrees, far surpassing the old record by almost 1.5 degrees. The average high temperature exceeded 100 degrees at all stations except those on the coast, and more than 95 percent of Texas remained in either severe or exceptional drought status. Meanwhile, the National Weather Service declared “La Niña is back”, referring to the condition in which colder than usual ocean temperatures in the central Pacific tend to create drier than normal conditions in the American southwest. The re-establishment of La Niña caused Texas State Climatologist John Nielsen-Gammon to warn the drought could last another five years, or even until 2020. “I’m concerned because the same ocean conditions that seem to have contributed to the 1950s drought have been back for several years now and may last another five to 15 years,” he said. The situation prompted new calls for State Water Plan funding, which has been almost non-existent since the plan was passed in 1997. The Express-News reported that by 2050, unless new water projects are funded, more than 80% of the state’s population will not have adequate water in a drought. The 1997 plan called for $53 billion in state investment and identified another $142 billion in capital costs for water treatment and distribution and flood control, but since 1957 voters have approved only $4.3 billion in bonds for water and wastewater projects, a pace that seems far from adequate. UPDATE: In June of 2012, after additional data trickled in from outlying stations in Oklahoma, the experts said that state actually beat the heat in Texas by 2/10 of one degree, so Oklahoma holds the record. SB 332 takes effect with exemption for Edwards On September 1, Senate Bill 332 became law, and it affirms that landowners have “a vested ownership interest in and right to produce groundwater below the surface”. As outlined in the several stories below, this bill was filed in response to an Edwards Aquifer lawsuit presently before the Texas Supreme Court that involves landowners who were denied a pumping permit because they had not historically used any water. As introduced in January, SB 332 had the potential to dramatically alter regional water management by effectively invalidating all Edwards pumping permits. The final version of the bill, however, included an exemption for the area affected by Edwards pumping regulations, and legal analysts observed that in the end little has changed. Even so, there is still uncertainty about how the bill will eventually affect the Edwards, because the new legislation does apply to numerous Groundwater Conservation Districts all over the Edwards Plateau that were established by local citizens to regulate pumping from the Trinity Aquifer, the main source of water in the Hill Country. These days, we are learning more and more about the connectivities between the Edwards and the Trinity and the recharge that enters the Edwards from it. So to the extent that SB 332 ends up invalidating Trinity pumping regulations or making it more difficult establish new ones, it will also impact the Edwards. It appears there are plenty of lawsuits and court decisions ahead before the ultimate impact of SB 332 is known. |
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Vote set for Aquifer protection tax breaks In November, Texas voters will be asked to decide whether landowners should get tax breaks for taking measures to protect water quality and quantity. Known as the Water Stewardship Amendment, the proposal was developed by The Nature Conservancy. At present, there is no direct incentive for landowners to engage in practices that would protect water, such as keeping cattle out of streambeds or maintaining vegetation around recharge features. If passed, landowners that have an agricultural or wildlife exemption would be able to quality for tax breaks by doing at least three of the following:
Worst one-year drought on record is new addition to history books On August 4, Texas State Climatologist John Nielsen-Gammon declared the 2011 drought to be the most severe one-year drought on record. By the end of July, records had been set for least year-to-date precipitation, driest consecutive 10 months, and driest 12 months ending in July. “These statistics rank the current drought as the most severe one-year drought ever for Texas,” said Nielsen-Gammon. “Never before has so little rain been recorded prior to and during the primary growing season for crops, plants and warm-season grasses.” For now, the most severe Texas drought overall is still the 1950-1957 drought. “The present drought is shorter but sharper,” Nielsen-Gammon added in his press release. “So far, its impacts have been disproportionately felt in agriculture, but many water suppliers throughout the state have now imposed water restrictions.” |
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Aquifer fees to triple for cities and industries In a historic breakthrough in June, members of the Edwards Aquifer Recovery Implementation Program (EARIP) reached a consensus about how to fund an endangered species protection plan (see story below). At that time, it was reported the typical additional monthly cost for homeowners that are SAWS customers would be about $1.50. On July 22, the Express-News reported that new estimates now put the additional cost at $3.13 for typical SAWS customers and about $3.65 for typical Bexar Met customers. The EARIP had initially sought a regional sales tax that would have equitably apportioned the cost amongst all who benefit from Edwards springflows, but that proved politically not possible, so in the end EARIP members had little choice but to place the entire fiscal burden on municipal and industrial pumpers. Fees for irrigation pumpers are capped by law at $2 per acre-foot. Under the EARIP proposal, overall fees for industrial and municipal pumpers will rise from $36 to $116 per acre-foot. |
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Regional Habitat Conservation Plan subject of intense debate Since 2009, regional officials have been working on a Habitat Conservation Plan that is designed to protect endangered bird habitats while providing a streamlined process for development by creating a bank of land that developers can buy into instead of seeking the required federal permits on their own (see background story). In late 2010, officials and residents in Kerr county appeared to have their hair on fire in a public meeting where the proposed plan was blasted as a communist plot that Jesus would oppose (see story from November 2010). By the summer of 2011, several public meetings were scheduled to discuss and present the draft plan and the issue escalated into a full-blown kerfuffle. Kendall county officials were pinched because they said they had not been consulted, and some Hill Country residents criticized the plan as a back-handed way to allow more development in Bexar county at the expense of land values in other areas. Commissioners in Kendall county passed a resolution unanimously opposing the plan, as have officials in several other surrounding counties. Even when counties pass resolutions in opposition, selling a conservation easement to the Plan's land bank would be a private transaction that county officials could not interfere with, so officials in counties surrounding Bexar have little say over whether land in their counties could be set aside to allow development in Bexar county. However, if a developer wanted to do a project that takes habitat in a county besides Bexar, that would require an interlocal agreement with Bexar county, which is the formal applicant for the plan. An inter-local agreement has to be executed before the plan is finalized - counties cannot decide later on they want in on the plan. So if counties choose not to participate, developers may be less likely to pursue projects in areas where they have to navigate the years-long process of seeking federal permits instead of mitigating using the land bank. While officials in surrounding counties made bombastic statements denouncing the plan and whined about being excluded, the Express-News editorial board published an op-ed that concluded nearby counties have no basis to complain. The editors noted the process is being driven locally, not from Washington, and from the start has included landowners and developers in a Citizens Advisory Committee that is co-chaired by Kerr County Commissioner Jonathan Letz. The Express-News board said part of the problem appears to be sour grapes, because two years after rejecting invitations to participate, some county officials are "realizing the downside of pretending that habitat conservation is only a Bexar county issue." Historic breakthrough: EARIP members agree on funding plan for species protection June 9, 2011 might be remembered as a turning point in the history of Edwards Aquifer management, when members of the EARIP met and reached a consensus on funding the Habitat Conservation Plan that must be submitted to the US Fish and Wildlife Service for review in 2012. Without an approved Plan, water management in the region could fall into the hands of a federal judge. The members first reached a consensus in January (see January News Item), when it was envisioned the plan would be funded through a new regional sales tax. That plan crashed and burned in the state legislature, so the EARIP outlined some other options that amounted to a choice between higher fees for pumpers or drastic pumping cutbacks (see May News Item). The EARIP opted for higher fees on pumpers; when passed through to customers, they will amount to about $1.50 per month on a typical SAWS bill. Overall, the annual cost of the EARIP plan is $20.3 million and there are four main elements in Phase I:
Phase II of the plan, if necessary, would occur by 2020 if studies determine that additional protective measures are needed. Phase II elements would be determined based on the effectiveness of Phase I. The EARIP plan still has to be approved by both the EAA and the Fish and Wildilfe Service, so there is no absolute guarantee it will survive as recommended by the stakeholders. Stage 2 water restrictions in place On June 1, with the J-17 index well reaching a level of 650, the city of San Antonio implemented Stage 2 restrictions. See details of San Antonio's rules. Check with your local municipality to see what restrictions may be in place for other areas. |
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EARIP sales tax dead, planners discuss other options In January the EARIP planning group agreed on a new regional sales tax to fund the Habitat Conservation Plan they are preparing (see previous News Item), and House Bill 2760 was filed to set up a public vote on the issue. When the regular legislative session ended on May 30, HB 2760 had not even made it out of House Committee, so it can be declared dead. The sales tax would have created broad-based equitable cost sharing throughout the entire region, but the political climate in Texas makes such a solution not possible. Currently, Edwards pumpers pay fees and undergo pumping cutbacks, but the entire south Texas region, including non-pumpers, benefits from maintenance of springflows, instream flows, and freshwater inflows into the coastal bays and estuaries. With failure of the bill becoming apparent, EARIP members began discussing other funding options that involve either scaling back or eliminating the voluntary irrigation suspension program under which farmers are paid not to irrigate. Under Option I, scaling back the program would reduce the annual price tag of the plan from $27 million to $13 million. Option II would eliminate the program and result in an annual cost of $7 million. The scale-back Option I would establish earlier triggers for requiring farmers who signed up to cease irrigating, but there would otherwise be no new pumping restrictions. If the program is eliminated under Option II, the savings would be significant, but the trade off is that pumping would be drastically reduced. A new Stage V drought category would be created and users in the San Antonio pool would be required to cut back by almost 50%. It seems likely that with such a cutback, all outdoor water use would have to be eliminated. Although it would be rare, it would be painful and last for months. In summary, the region now has to decide whether it wants to pay less or avoid severe additional pumping cutbacks. |
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Stage 1 water restrictions in place On April 12, with the J-17 index well reaching a level of 660, the city of San Antonio implemented Stage 1 restrictions. See details of San Antonio's rules. Check with your local municipality to see what restrictions may be in place for other areas. Earlier this year, stakeholders in the Edwards Aquifer Recovery Implementation Program agreed on a funding mechanism for a plan to protect endangered species dependent on the Aquifer, and State Rep. John Garza sponsored House Bill 2760, which called for an election to implement a new ¼ cent sales tax in counties within the jurisdiction of the EAA and in the watersheds of the Guadalupe and San Antonio rivers. A companion bill, Senate Bill 1595, was sponsored by Sen. Jeff Wentworth. The plan was that if the legislation was approved, the Edwards Aquifer Authority, the San Antonio River Authority (SARA), and the Guadalupe-Blanco River Authority (GBRA) would call for an election in November to let voters decide. In April, the Guadalupe-Blanco River Authority learned that its enabling legislation prohibits it from being involved in levying a tax, so the legislation had to be revised to exclude them. GBRA and SARA also recommended the new tax be limited to the area within the EAA's jurisdiction and not include the watersheds of the Guadalupe and San Antonio rivers. In addition, they recommended the tax be limited at first to 1/8 cent, with another 1/8 cent levied in Phase II of the EARIP program, although no one really knows what Phase II is or when it would occur. The EARIP steering committee approved all three changes and planned a meeting to discuss the changes with Rep. Garza and Sen. Wentworth. |
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Interchange work starts despite lawsuit In early March, work began on the highway interchange over the Edwards Aquifer recharge zone at 1604 and 281, despite a lawsuit and a request by Aquifer Guardians in Urban Areas for an injection to prevent construction (see previous News Item). Because the judge has not ordered construction stopped, the Regional Mobility Authority moved ahead. "We are operating within the legal guidelines given us", said RMA chairman Bill Thornton. AGUA attorney Enrique Valadez said "They are just trying to change the facts on the ground and hope that by the time the judge rules it will be too late to do anything about it." He said his group will continue to work through the legal system to ensure the project is put through a thorough environmental review. |
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Cave-dwelling invertebrates to receive greater protection There are nine species of invertebrates known only from caves in the northern and northwest parts of Bexar county, and in December 2000 the Fish and Wildlife Service designated the nine species as endangered under the Endangered Species Act. In 2002 the Service proposed designating 9,516 acres as critical habitat for the species, but under the Bush administration only 1,063 acres were designated. In 2009 the Service was forced to re-evaluate its process for critical habitat designation in response to a lawsuit filed by local and national environmental groups concerned about construction projects that would threaten the species. In February of 2011, the Fish and Wildlife Service asked for public comment on designation of an additional 6,906 acres as critical habitat. If adopted, the designation could have impacts on many development projects proposed for north and northwest Bexar county. Critical habitat designations only apply to projects that use federal funding or require a federal permit, but the designation would draw focus to TCEQ rules about not filling in or damaging caves and city of San Antonio requirements that developers follow federal laws regarding not harming endangered species. For more on the cave dwelling invertebrates see the Endangered Species page. Ironies abound in EAA request for exemption from proposed legislation Try to follow this thread, my friends, and you will know just how complicated Texas water law really is. First, recall the discussion in the item below, regarding a bill that was filed in January by Senator Troy Fraser. This bill was filed in response to a pending Supreme Court decision regarding a case that originated in an Edwards Aquifer pumping permit dispute. Fraser’s bill would amend Chapter 36 of the Texas Water Code to specifically acknowledge that landowners have a vested ownership interest in and right to produce groundwater from below their land. With me so far? Here’s where it gets weird. On February 12 Rep. Doug Miller of New Braunfels filed House Bill 1279, which would exempt the Edwards Aquifer Authority from Chapter 36 of the Texas Water Code. That’s right, Miller’s proposal is to exempt EAA from a law that is being amended to specifically address a pending court case involving the EAA. From some viewpoints, its possible this might actually make sense, but here’s where it gets even weirder. The EAA claims the proposal has support from key groups that are also seeking the legislation aimed at addressing the property rights issue raised in the lawsuit that we are all waiting for the Supreme Court to rule on. So if both bills pass, it would seem the supporters of the property rights amendment are back at square one, waiting for the court to rule, which the Senate Bill was designed to circumvent. I’m not making any of this up. |
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EARIP stakeholders agree on plan, but funding may be a longshot In 2007, the Texas legislature directed the EAA and other state and municipal water agencies to participate in a collaborative, consensus-based stakeholder process to develop a plan to protect the federally-listed species dependent on the Edwards Aquifer. This is known as the Edwards Aquifer Recovery Implementation Program (EARIP). The group was given a 2012 deadline for preparing an approved Habitat Conservation Plan for managing the Aquifer to preserve the listed species at Comal and San Marcos Springs. The Legislature also directed that the Plan must include recommendations regarding withdrawal adjustments during critical periods that ensure the federally-listed species associated with the Edwards will be protected. In January 2011 the group reached a consensus about the elements and financing for a plan. The cost would be about $30 million per year, about half of which would go to the San Antonio Water System to use a portion of the storage capacity at SAWS’ Twin Oaks Aquifer Storage and Recovery facilty to augment flows during dry times. Another $10 million would go to farmers not to irrigate, and the remaining $5 million would go to improving habitat, conservation programs, and scientific studies. The plan would be financed by a new ¼ cent sales tax imposed in counties within the jurisdiction of the EAA and in the watersheds of the Guadalupe and San Antonio rivers. Some officials such as Senator Leticia Van de Putte expressed support for the idea but were skeptical that it could receive approval. In 2011 the state is experiencing unprecedented budget shortfalls, and Governor Rick Perry has made a political career out of vowing to veto any new tax bill that reaches his desk. The EARIP final plan to be submitted in 2012 must include a funding mechanism or it is unlikely to receive U.S. Fish and Wildlife Department approval. At that point, it is possible that water management in the region could fall into the hands of a federal judge. Counties air opposition to Regional Habitat Conservation Plan Since August of 2009, regional officials have been working with Texas Parks & Wildlife staff and stakeholders to develop a Regional Habitat Conservation Plan as an approach to provide endangered species habitat protection while also providing developers with a streamlined approval process for their projects (see details in previous New item). In January of 2011, the Express-News reported that Hill Country counties were lining up against the initiative and passing formal “opt-out” resolutions. A draft plan has not yet been released, yet many rural landowners consider the proposal a method of bolstering development in Bexar county at the expense of Hill Country land values. “Opt-out” resolutions passed by counties are unlikely to have much real impact, however, because the decision to participate is made by individual landowners, not local governments. Landowners who wanted to preserve their property as habitat would negotiate a sale or a conservation easement to a non-profit organization set up to administer the program. Observers noted more than a little irony in the notion that landowners who normally insist on private property rights seem to be making forceful determinations about what sort of private property transactions other landowners might desire to make to preserve habitats. Bill filed to “protect” water rights In February of 2010, the Texas Supreme Court heard arguments in a case that could dramatically alter the rule of capture and effectively invalidate all limitations on Edwards Aquifer pumping that have been established in the last decade by the Edwards Aquifer Authority (see previous New item). By the end of 2010, the Court had not yet ruled on the case, and the rumor I heard from knowledgeable sources was the Court was going to defer ruling until the Legislature could meet and address the issue. In January, State Senator Troy Fraser filed Senate Bill 332, which would specifically affirm that landowners have “a vested ownership interest in and right to produce groundwater below the surface” of their land (see Bill). While Texas is noted for its strong focus and support of private property rights, many liken the rule of capture to a circular firing squad – if everybody has unlimited rights, nobody really has any rights at all. Under the proposed legislation, groundwater conservation districts could still limit pumping rights; however, there is simply not enough water for each landowner to claim a share, so it could reasonably be expected that regulations and pumping limitations would unleash a wave of lawsuits that would take decades to sort out.
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