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By Colleen Schreiber BRACKETTVILLE — Anyone who thinks water issues are restricted to the Texas Panhandle or parts of far West Texas in and around Hudspeth County probably hasn’t spent much time in the little Southwest Texas town of Brackettville. The people here are so at odds over water that neighbors no longer speak to each other. They pass in the grocery story without even exchanging greetings. Some in the community have let their differences spill over into participation at school and 4-H functions, activities that normally bind a community together. "If so and so is going to be there, I’m not coming" is a response heard all too often in this once close-knit rural agricultural community. Water has literally divided the town in two. The problem, many say, stems from the fact that Kinney County has a whole lot of water and not very many people. Not only does Kinney County have plenty of water, it also is located relatively close to a couple of thirsty, rapidly growing population centers. That very scenario makes it attractive to water marketers. Austin-based attorney Paul Terrill represents several of the farmers and ranchers involved in the Kinney County water wars. "A significant number of people want to sell their water elsewhere, and some people want to stop them from doing so," is how Terrill sums up the conflict. "There are noble and not so noble reasons," he adds.
"The noble reason is that too much water is sold it could dry up
the community and dry up the springs and harm the economy. Some people
truly believe that. Jim and Jennifer McDaniel are among the few farmers left in Kinney County. The McDaniels moved from the Rio Grande to Kinney County in 1985. They paid top dollar for their farmland at Pinto Valley, which sits atop the prolific Edwards-Trinity Aquifer. They have artesian wells. "There’s never been a shortage of water in our Valley," McDaniel insists. "During the ‘50s drouth they trucked water from this farm to Fort Clark, which had gone dry." Fort Clark and the eastern half of the county are over the Edwards Aquifer, while the McDaniels and Pinto Valley are over the Edwards-Trinity. The McDaniels and Zack Davis are two of the principle parties in Kinney County involved with WaterTexas, an Austin-based, privately funded water development company. While the McDaniels still farm today, if they should decide to stop farming tomorrow or next year or 10 years from now, they want the right to do what they wish with their water, so long as that use doesn’t harm their neighbors. Most say the Kinney County Groundwater Conservation District was approved overwhelmingly by county voters in January of 2002 out of fear that water marketing projects, like the one involving the McDaniels’ farm, would harm the county. However, landowners soon realized that attempts to target water marketing would affect their own water use as well. Since that time, the district has alienated a number of its original organizers, landowners, members of the ag community, and the local Farm Bureau. Turmoil over the district is reflected in the fact that, in just two short years, it has replaced its legal counsel; lost three general managers (one before her first day of work); had three board members resign; and addressed claims of nepotism and conflict of interest. It has adopted rules, completely rewritten them at least once, and adopted piecemeal amendments on a number of other occasions. And, to make matters even worse, it has managed itself almost into insolvency, with significant budget deficits prompting its auditors to question whether it can stay in business. On legal fees alone, the district has amassed a debt of well over $205,000, and it hasn’t even been sued — at least not yet. The district’s first suit may result from its recently adopted management plan. Many in the county accuse the district of using inaccurate science — or perhaps better put, incomplete data — to come up with the amount of groundwater said to be available in the county for purposes of the management plan. At issue is the "total usable amount of groundwater in the district," which state law requires every groundwater district to calculate as part of its management plan. Many say the district has totally ignored the primary source of water in the county — the underground water that flows down from Edwards and Real counties. "They passed a management plan which says that the available groundwater is 69,800 acre-feet," Terrill says. "However, they failed to take into account any of the water that comes into the county from other aquifers from the north, which is the most significant source. Is that scientific? That, to me, is illegal. It’s an entire category of water that they ignored. "What reason would they have for not including this very significant amount of water? Do they want to keep the amount of water artificially low to restrict permits? Do they particularly want to restrict the amount of water that can be exported? "I don’t know. It sure looks that way. Why else would you not include a huge source of water? They should take into account the true amount of water available and include it in the management plan." Don Ralston was the district’s general manager until he resigned this past week. The amount of annual recharge, Ralston says, was a figure given to them by the Texas Water Development Board. Dr. Robert Mace, a hydrologist with TWDB, was the one who calculated the recharge number for Kinney County. However, according to Mace, it was the district that "decided to use the recharge value as the total usable amount of groundwater." Mace admits that water flows underground and under county lines into Kinney County. "That water is called underflow," he explains. "Underflow is water recharged outside of the county that then percolates down to the aquifer." Mace agrees that underflow "is part of the total water budget for water coming into the county," but he takes the position that groundwater districts can decide for themselves whether to include underflow when calculating the total usable amount of groundwater in the district. However, he is not so flexible when it comes to "recharge." "As a hydrologist, ‘recharge’ means something very specific, and it does not include underflow," he says. "An estimate of recharge has to be included in every district’s management plan." Why would one source of water — recharge — be required in every instance, while another — underflow — be ignored if the district so chooses? According to Mace, the Texas Water Development Board has no authority over the matter, even though the legislature has given it millions of dollars to develop models for groundwater management. The same appears to be true for a district’s rules. "It’s the rules," Mace insists, "that really matter when it comes to caps on pumping. But again, the water development board has no authority governing the development of those rules. "When we do our check for administrative completeness, all we do is make sure they have rules or draft rules," Mace says. "We don’t pass judgment on a district’s rules." When drafting its initial set of rules, the district’s first attorney took the position that the procedural rules governing the district should be adopted first and that substantive rules limiting pumping and allocating water should be postponed until after the science is complete. WaterTexas offered to do the science free of charge, but the district rejected the offer, fired its attorney, and hired Austin attorney Brian Sledge. Sledge not only represents the groundwater district in Kinney County, but he also represents water marketers in the far West Texas water wars raging in Dell City. He is reported as well to have been instrumental in last-minute legislation that changed water district boundaries in far West Texas. As some landowners are quick to point out, Sledge had no problem writing a new set of rules without the science. That leads back to many landowners’ original complaint. How do you write a plan without adequate science? And, if the Water Development Board has no authority over the science groundwater districts apply, then why were millions spent by the board on groundwater models? The Kinney County controversy hasn’t been cheap for the farmers and ranchers, either. Many have hired their own attorneys to fight the water district. In essence, they have found themselves paying two lawyers: both the one who supports them, and the district’s lawyer whose salary they pay indirectly through taxes and fees generated by the water district. Attorney Paul Terrill has been involved in the Kinney County controversy almost since day one. He was hired by individual farmers because the district was passing rules they believed were crippling them. One such rule originally called for a cap on temporary pumping at five acre-feet per acre. Terrill’s client, Justin Burk, a livestock producer who also grows alfalfa in Kinney County, would not have been able to continue growing alfalfa under those restrictions. "Alfalfa in that part of the world typically needs seven, sometimes eight acre-feet of water per acre. Because his water use was intensive use on a per-acre basis, but not in an overall sense because he doesn’t farm many acres, that rule was intentionally going to cripple him," Terrill contends. According to Jim McDaniel, it was contemplated from the outset that any groundwater district created in Kinney County would protect existing users, specifically ag users. For example, McDaniel says, during the planning stages "it was agreed that it should be a taxed-based district and there would not be any user fees ... because there are very few of us in this county who have water, and it’s not fair for those few to support the entire district with user fees." However, when the district’s board laid out its draft rules, user fees were not only included, they were a major source of funding for the district. McDaniel and other agricultural operators fought to have historic ag users exempted from user fees, arguing that most groundwater districts have exemptions for pre-existing ag use. Their arguments fell on deaf ears. Today, the district receives a majority of its funding from fees. Ag interests also had to fight to get agriculture recognized in the district’s management plan. In the initial drafts of the management plan, ag was not deemed important enough to gain even a mention, while the protection of officially "endangered" species was addressed at length. Another rule in the original draft allowed for 2.5 acre-feet of water to be used for every acre of contiguous land. That rule would have favored the larger contiguous landowners, even if they had little to no water under their property. In the end, the district opted for rules which granted water use permits based on a three-tier system in which they defined existing use, historical use and new use by attaching specific dates to each category of use. But even this system had problems. The original rules were such that historic use was narrowly defined as use within a 10-year period from 1993 to 2003. There were those who had water underneath their property, but because they had not been capturing that water during that specified time period, could not obtain a historic use permit. Cecil Boulware, for example, owns a 4100 acre farm in Kinney County that was intensively managed under irrigation until about 1987, when most of the 4100 acres was put into CRP. "He had a lot of historic use, but he didn’t have historic use within the timeframe established by the district," Terrill explains. Charlie Foust also has his land in CRP. He filed for a historic use permit even though he knew he wouldn’t be using the water while his farm was in the CRP program. Originally, the rules were such that for him to retain that permit, he would have had to pay a dollar per acre-foot for the water he was permitted even when he wasn’t using it. Terrill negotiated it down to 25 cents an acre-foot. Richard and Beth Ann Smith’s problem was similar but different. They had been paying on a piece of land for 20 years. They bought the property primarily because of the water. It had been irrigated in the past and had the pumps to prove it. The Smiths, however, chose not to farm it while they were paying on it. About the time the water district was being formed, they put some of it back into production for livestock grazing purposes. When the district’s rules first came out, the Smiths essentially did not qualify for any historic use. "Chapter 36 of the Texas Water Code does not specify a time period to define historic use," Terrill explains. "It simply says that historic use must be protected. My opinion is that if you have historic use that you can prove up, that use has to be protected. It doesn’t matter if it was one day, one year, 10 years, 100 years ago," he stresses. Terrill contested the rule on behalf of his clients, and though the outcome wasn’t exactly what he petitioned for, the district did agree to extend the historic use period back to 1960. The final rules, which have now been approved and adopted by the district, define "historic use" to mean the time period from January 1, 1960 and December 31, 1991. "Existing use" is from January 1, 1992 through January 7, 2003, while "new use" is anything after that time period. If water is rationed in the county, those holding new permits would be cut back first, followed by historic users and then existing users. "There’s some legitimate debate about whether the Water Code lets you split up users that way," Terrill says, "but that may be another battle for another day." Many say politics and people issues were at play when the district agreed upon these particular rules and the particular dates. A few wells, in fact, were drilled just in time to qualify for existing use, and those wells will be given higher priority than wells such as those of the Smiths’, that are more than 50 years old. Another controversial rule adopted by the Kinney County groundwater district has to do with fees and when those fees are assessed. Ag permittees must pay the dollar per acre-foot fee upfront for the amount of water they’ve asked for in the permit, even though the district may only allow them to pump a portion of that total. The upfront fee payment, Jim McDaniel says, was decided upon by the district because the district needed to generate some money to help pay its legal bills. Initially, there was not even a refund mechanism written into the rules, though that has since changed. Payments are now made in quarterly installments. There is one more twist, however. "If an applicant is not granted a permit for the entire historical amount that he asked for, the district will refund the balance from the fees paid up front," McDaniel explains. "However, once the historical permit is issued, we are required to pay the full fee for the full amount, even if we don’t use all of the water permitted." That mechanism would seem to discourage conservation rather than encourage it. "Say we have a really wet year and we only use 20 acre-feet and we’re permitted for 100 acre-feet. The district doesn’t refund that $80. They keep it." Individuals also must pay to have their wells metered. Furthermore, unlike the Edwards Aquifer Authority, Kinney County residents pay to have their own meters installed. A meter, he says, can cost anywhere from $600 to $1500, depending on the size needed. McDaniel asked the district to allow for a three to five-year time period after the wells were metered, so a more accurate assessment of water use could be determined, but his request was denied. Most have attempted to prove up historic use by using crop records, electrical bills, fuel bills, etc. McDaniel had a hard time because most of his water is artesian flow. Thus he essentially had to depend on crop records alone to come up with a historic use figure. The Smiths had almost as much trouble because, as relatively recent owners, they had no production records of their own. They sent out letters to people all over the U.S. who either had lived there previously, or who had worked there at one time. They had to obtain affidavits from those people, as well as find aerial maps which showed the fields in production. The deadline for permit applications was October 1, 2003. Those permits are now being reviewed by Steve Walthour, head of permitting for the Edwards Aquifer Authority. Walthour is working on a consulting basis for Kinney County. He will make the scientific and technical determination on how much water the individual applicants should be allowed to pump, but the board must ultimately approve the individual permit applications. Terrill is hopeful the district will move forward with the permits. "The district has fixed some of the problems in the earlier
versions of the rules, and if they keep on addressing problems there
won’t be any lawsuits, but they need to give people their permits.
If they don’t unreasonably restrict private property rights by
artificially discounting the true amount of available water and people
get their permits, then all the wailing and gnashing of teeth will
eventually die down." "Water follows money. The cities have the money. They have the need for the water, and that’s where the water is going to go. "Kinney County is ripe for it because there is a lot of water and not many people and not much local demand for the water. But there is demand from other cities." |
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