The Texas Water Development Board staff report on the appeal of the desired future conditions of Groundwater Management Area 12 recommends that the Board find in favor of the Districts. The TWDB staff, in their report to the Board dated June 13, 2012, dismissed Environmental Stewardship’s evidence on the impacts of the desired future conditions on property rights as “outside the scope of consideration in this proceeding”. The staff likewise dismissed the evidence on the impacts of the groundwater-surface water interaction as “out of context.” The report claims that, “there are no explicit requirement in the statutes .. to consider impacts on spring flow and other interactions between groundwater and surface water,” though their own administrative rules established such a criterion. Furthermore, Districts are required to consider such impacts before granting or denying a permit, and the 82nd Legislature established this as a requirement in deciding desired future conditions in the next round of the process. It appears that Environmental Stewardship was ahead of the game.
The staff recommendation on the impact on property rights essentially confirms that it is the State’s view that it is not unreasonable to take water from a surface water right by pumping the water out of the ground before it reaches the stream – thereby damaging the surface water right – even though the water has historically flowed to the stream, as it did when the State granted the surface water right. In our view, the TWDB is setting groundwater conservation districts up for takings claims.
In abdicating its responsibilities, the staff complains, “but the Legislature did not define ‘reasonable,’ nor did it provide any guidelines for the TWDB to use in determining whether a DFC is reasonable.” They go on to say, “notwithstanding any findings by the TWDB that a DFC is unreasonable, the final determination of a DFC remains the responsibility of the districts in the GMA”.
Environmental Stewardship is considering its options and will make its case before the full Board on June 21, 2012. The TWDB received statements from 265 individuals expressing support for Environmental Stewardship’s petition; thank you!Click here to comment to the TWDB. Put “ES GMA-12 DFC Appeal” in the subject line.
Click here for TWDB Staff Report
Click here for ES paper on impacts of groundwater-surface water interactions on property rights and State Water Plan projections