History of LWV-TX Action on Texas Water Resources

History of LWV-TX Action on Texas Water Resources

1976-1980: When Proposition 1 authorizing $400 million in Texas Water Development bonds was placed on the ballot in November 1976, the League worked to defeat this proposition. League opposition was based on the absence of financial safeguards guaranteeing timely repayment by beneficiaries of water development projects, absence of environmental protection provisions, and inadequate information as to what projects would be funded. The amendment was defeated. Proposition 2, authorizing $100 million in water quality enhancement bonds, was supported by the League and approved by voters.

Over the next several years, testimony based on League water positions was presented on the state lignite mining program, state water quality management plans, hazardous waste disposal legislation, the High Plans Ogallala Aquifer Study, the federal Soil and Water Resources Conservation Act, and a proposed EPA Groundwater Protection Strategy. LWV-TX Education Fund projects on water issues included co-sponsorship of a regional floodplain conference in 1975; and "Project Safewater" in 1976, which explained through a slide program and information kit the implications of the federal Safe Drinking Water Act for Texas communities.

1981-1984: In 1981, League action again focused on opposition to a proposed constitutional amendment. Proposition 4 would have dedicated half of the state's "excess" revenues in each biennium to a new water fund. In addition to the concern that prompted our opposition to the 1976 amendment, the League opposed the constitutional dedication of state revenues, in accordance with our position on Financing State Government. The League also pointed out that the revision of the Texas Water Plan initiated in 1976 had not been completed. The amendment was defeated. Shortly after the November 1981 election, the governor called for revision of the Texas Water Plan. The state League and local Leagues testified at forums on water planning issues in 1982 and at hearings on a draft revision of the plan in 1983. In September 1984, the Water Development Board adopted a revised plan, "Water for Texas: A Comprehensive Plan for the Future," which emphasized water conservation and reuse, and recognized that importation of water was not feasible under present conditions. In 1981, LWV-TX Education Fund published Fresh Water for Texas Bays and Estuaries.

1985-1988: The 1985 legislative session passed a major package of water legislation. Prior to and during the session, the League lobbied to strengthen provisions for water conservation and protection--especially for groundwater. The package consisted of water conservation programs, protection of freshwater inflows to estuaries, creation of groundwater conservation districts in critical areas, and expanded powers for groundwater districts. These initiatives were funded by a bond issue authorized by voters in the November 1985 election. The League also supported a related ballot issue that passed, authorizing state bonds for an Agricultural Water Conservation fund, if approved by a two-thirds vote of the legislature by 1989.

The League worked with the Water Development Board and the Water Commission for effective implementation of the new conservation requirements and groundwater district provisions. In the 1987 legislative session, some League-supported proposals (for example, stronger septic tank regulation) passed, but all statewide groundwater bills failed.

In 1987-88 local Leagues and the state League participated in the League of Women Voters Education Fund's "Community Drinking Water Survey," interviewing water officials on impacts of the 1986 Safe Drinking Water Act amendments. At Texas Water Commission hearings, LWV-TX testified for more stringent water quality standards and more effective controls of non- point source pollution.

1989-1993: The League reviewed the thirteen critical groundwater area reports published by the Texas Water Commission in 1989 and 1990, and urged the commission to address promptly the more serious problems described in the report. Also in 1990, the state League and several local Leagues presented statements at the Texas Water Development Board's public hearings on draft revisions of the state water plan. We commended the plan's emphasis on water conservation and subsequently worked successfully for legislation adopting water-conserving plumbing standards, as recommended in the plan.

In 1990, we attended numerous meetings of the legislature's interim committee on the Edwards Aquifer and testified in the 1991 legislative session on two bills proposing management of the aquifer, neither of which passed. A League priority in the 1993 legislative session was the creation of a regional management entity for the Edwards Aquifer. The bill the League supported passed in the final days of the session.

In the fall of 1991, LWV-TX testified for a more effective Integrated Environmental Plan for the Mexico-U.S. Border Area and supported a constitutional amendment authorizing use of $150 million of Water Development Fund bonds for water and wastewater services to colonias. The League was represented on the Texas Water Commission's Clean Water Council, which submitted its report in November 1992, and on the Clean Texas 2000 Awards Committee, which recommended the April 1993 award winners.

1994-1995: In 1994, LWV-TX Education Fund sponsored a workshop in New Braunfels highlighting local League work to protect water quality in south central Texas. Since early 1994, League members have been participating in regional advisory committees to the Trans-Texas Water Program, which is considering future water supply options to be recommended in the 1996 revision of the Texas Water Plan. The League is also represented on Watershed Texas, a statewide watershed management project of the Texas Natural Resource Conservation Commission's (TNRCC) Office of Water Resource Management.

In the 1995 legislative session, the League supported the bill which was passed to meet U.S. Justice Department requirements for the election of the Edwards Aquifer Authority Board. We opposed several bills that did not pass, including those lowering water quality standards and limiting pollution control authority of the TNRCC.

1997: Major new water legislation, known as SB 1, was drafted by various groups during 1996 in response to a statewide drought and also to provide a broader state framework for dealing with the state's current and future water needs. Early in the session representatives of several public interest and environmental groups, including the League, met to discuss the proposed legislation and to identify essential elements of a state water bill. A resulting policy statement was submitted to legislative staff and these elements were incorporated into the final bill. Key provisions include:

  • adoption of a new state water plan which will incorporate regional plans for drought planning and water conservation by September 1, 2001
  • retention of the right of capture doctrine for state groundwater
  • inter-basin transfers approved by the TNRCC would become "junior" water rights with little or no water to transfer out of the basin during a drought
  • stream flow needs for streams and rivers and environmental flow for bays and estuaries will continue to compete with perceived water use needs of agricultural, municipal, and industrial needs
  • formulation of a state water plan addressing different needs of managing water in various regions of the state

The 1997 appropriations bill contains funding of $36 million for the water legislation during the biennium. An Interim Committee on Water Resources and Development and Management will be created to study a broad range of water issues, including water marketing, and make recommendations to the next legislature. The League plans to monitor this committee during the biennium.

Another bill reinstates the funding mechanism for the state's Clean Rivers Program, which would have expired in 1998. However, the population threshold for cities required to establish a water pollution abatement program was increased, weakening the program. Two constitutional amendments concerning water will be on the ballot in November 1997. One would create Water Development Fund II. The other would allow local governments to give tax breaks to businesses which install water conserving equipment.

1999: LWV-TX worked on water quality and protection issues and on budget issues. LWV-TX had as a key priority the provision of money for water quality and quantity issues. The League successfully supported full funding for the ongoing regional water planning process set up by SB 1 in 1997. LWV-TX joined environmental groups in asking the legislature to fund programs and employees in the storm water permitting process, a water quality program that emphasizes working to maintain the designated uses of specific rivers and streams, water quality improvement and water modeling, and revenue for the National Estuary implementation program for Corpus Christi and Galveston Bay areas. We met with mixed success, but have made an important stride forward in working on the legislative budget and appropriation processes.

The two most important bills, both opposed by LWV-TX, concerned ground water protection and a wastewater discharge bill that restricted the opportunity for public participation. The groundwater bill, originating in the House, was directed at the regulation of the Edwards Aquifer, and would have put a moratorium on the pending Edwards Aquifer (protection) Rules that the League supported. The bill would have established a committee to study the rules adopted by TNRCC that had not yet gone into effect. The League opposed the bill, believing that the rules offered increased protection to the contributing, as well as the recharge zone, and were already the result of a large amount of public participation. The bill did not pass; the rules went into effect June 1.

The second bill, which did pass and was signed into law, authorizes TNRCC to lift the "cap" on wastewater discharges eligible for a general permit. Previously the law had a discharge limit, which if exceeded resulted in having to go through a permit hearing process. These general permits restrict the opportunity for public participation by replacing the contested case hearing process with a notice and comment provision. The bill was strongly opposed by LWV-TX and environmental organizations. This bill serves as an example of legislation that deals with more than one issue, in this case public participation and water quality.

2001: The legislature continued its examination of Texas water policy and planning. SB 2 (Brown), signed by the governor, revised the state's regional water planning process, established the Texas Water Policy Council, provided direction on water management strategies, and set up a comprehensive study of water resource issues that will occur during the 2002 interim. The bill strengthened the ability of underground water districts to control the pumping of groundwater. The bill also established the water infrastructure fund to be funded through the Texas Water Development Board. LWV-TX did not support or oppose (during the session or the election) a proposed constitutional amendment to authorize an additional $2 billion in general obligation bonds for water projects.

2003: For a session that was not supposed to deal with water there were a large number of significant bills introduced and passed. These include bills that:

  • deal with the Texas Water Development Board administration and funding including the Water Infrastructure Fund, the Rural Community Water and Wastewater Loan Fund, and the Rural Water Assistance Fund
  • consolidate various agricultural assistance funds
  • create the Water Conservation Implementation Task Force
  • require all water conservation plans and drought contingency plans submitted with a water rights permit or financial assistance application to include specific, quantifiable 5-year and 10-year targets for water savings
  • establish the Study Commission on Water for Environmental Flows, prohibits TCEQ from issuing a new permit for in-stream flows dedicated to environmental needs or bay and estuary inflows, and clarifies that groundwater conservation districts may adopt different well spacing or production limits for distinct aquifers or for different geographic areas within their boundaries
  • require the Texas Water Development board to study, investigate, and survey the development of water supplies from seawater desalination
  • relate to notice of groundwater contamination that may affect a public or private drinking water well
  • relate (a) to prohibiting the creation or enforcement of certain restrictive covenants that undermine water conservation; (b) to the authority of certain nonprofit water supply corporations to establish and enforce customer water conservation measures; (c) to the definition, use, regulation, and permitting of grey-water
  • relate to requiring water rights applicants and holders, water utilities, and conservation and reclamation districts to adopt and implement certain water conservation measures
  • relate to lawn irrigation and rainwater cutoffs, wastewater, the discharge of wastewater into waters of the state, storm water, land application of sludge, and water supplies.

Bills that would affect low-flow toilets and washing machines conservation standards did not pass. Two other water bills that did not pass addressed issues relative to small community water systems that face exceptional physical or financial circumstances in attempting to comply with federal Safe Drinking Water Act requirements relating to naturally occurring material. This legislation could have led to the loss of federal funds.

2005: The latest super water bill SB 3 (Armbrister) (in line with SB 1 and SB 2) died in the House, a victim of late filing and bad timing. The bill would have covered conservation, groundwater, in stream flows, protection of the bays and estuaries, and other topics. At the last moment representatives were looking for bills to attach environmental flows and the protection of the bays and estuaries amendments. However, no significant water legislation passed. Senator Armbrister filed a bill in the special session dealing with Article I of SB 3, environmental flows and bay and estuary protection but the bill was not added to the Governor's list for the special session. The Governor had said that school finance took priority before anything else would be considered.

Several water bills that failed to pass.

  • SB 352 (Madla), relating to the protection of groundwater under state lands, was sent to House Land and Resource Management where it died.
  • HB 2429 (Puente), relating to water and energy saving performance standards for commercial clothes- washing machines, died in House Calendars, and was strongly opposed by washing machine manufacturers.
  • HB 1223 (Puente), relating to performance standards for toilets sold in this state, died in House Calendars. This bill, so important to water conservation in the State, was strongly opposed by manufacturers. HB 1226 (Puente), that would establish a Water Conservation Advisory Council, was placed on the General State Calendars, where it died.

Water bills that passed include

  • HB 2428 (Puente), relating to water and energy saving performance standards for commercial pre-rinse spray valves,
  • HB 1224 (Puente), relating to a study of the effects of take-or-pay contracts on water conservation, and
  • HB 1225 (Puente), relating to the grounds for an exemption from cancellation of a water right for nonuse.

2006: The 2nd 5 Year SB1 State Water Plan was adopted in the fall following statewide hearings.

2007: HB 3 (Puente) supported by the LWV-TX creates a basin-by-basin process for developing recommendations to meet in-stream needs, requires the Texas Commission on Environmental Quality to adopt recommendations in the form of environmental flow standards, and creates the Environmental Flow Advisory Group to oversee the process.

HB 4 (Puente) supported by the LWV-TX, is a water conservation bill that represents the consensus recommendations of the state's Water Conservation Implementation Taskforce established by the legislature in 2003. The bill establishes a statewide water conservation public awareness program to educate Texas residents about water conservation.

SB 3 (Averitt) opposed by LWV-TX, passed. This bill became a reservoir designation bill. The passage of SB 3 does not mean that reservoirs will automatically be built, but may set up conflicts that will take years to resolve.

2011: SB 332 (Fraser) originally attempted to reaffirm groundwater as a property right ("rule of capture") by describing it as a "vested" property right. The result would have been to threaten the balance between landowners and the 97 local groundwater conservation districts (GCD) who are the only community regulators of groundwater reservoirs. These reservoirs supply more than 60% of the state's water needs. In a compromise, the bill eventually just re-stated groundwater ownership as a landowner's "property right." Had "vested" remained in the bill, it would have been a constitutionally protected property right, becoming a statute of common law.

The "vested" question was answered by the TX State Supreme Court in the Edwards Aquifer Authority vs. Day case in early 2012 when they ruled that water was indeed owned by the landowner. The full implication of this decision is to classify any restriction in the use or sale of a landowners' water as a legal "taking" which must then be remunerated! The problem now returns to the legislature and the courts to decide how to guarantee the best use of water for the people. In commenting on this Texas Court decision, the New York Times noted that Texas is the only state that "functions by the rule of capture, which allows landowners to pump essentially unlimited amounts of water. Elsewhere in the U.S. groundwater is a public resource."

2012: (March 18, 2012) There were two proposed constitutional amendments relating to water passed by the legislature for the November 2011 ballot:

  • SJR 4 (Hinojosa): This proposition is a product of the Sunset Advisory Commission's recommendations on the TX Water Development Board's (TWDB) ability to issue debt. It authorizes the TWDB to issue self-supporting general obligation fund bonds at its discretion and on a continuing basis (essentially a revolving fund). The TWDB would thus have greater flexibility in targeting needs across a longer time horizon and increase their ability to meet needs of local governments that must upgrade infrastructure to meet growing populations. This amendment passed.
  • SJR16 (Estes): This is the "Water Stewardship Amendment" that would add "water stewardship purposes" to the agricultural exemption option (aka the "open-space valuation option") for property tax valuations. According to the bill analysis, adding water stewardship purposes to the land management practices would give land owners "a tool to better manage their property and incentivize land owners to invest in projects that improve water quality and quantity for the state." This amendment failed.

Otherwise, this session was a disappointment for all hoping that the issues of water demands and shortages would be faced once and for all. The new, increasing challenges involving groundwater depletion, pollution and toxic spillage resulting from natural gas drilling and soil fracturing (i.e., "fracking) will be in the forefront of water planning and permitting for some time to come.

2013: LWV-Texas followed 23 bills during the session, of which seven passed. The most important water bill signed by the governor was HB 4, which sets up the Texas Water Development Board (TWDB) funding for implementation of the so-called SWIFT loan fund (State Water Implementation Fund of Texas) and bond sales to support SWIFT.

Also, this bill re-organized the TWDB from being run by an administrative voluntary board of six appointed by the governor to a paid professional board of three, one each appointed by the governor, lieutenant governor, and speaker of the house, respectively. The reorganization of the TWDB was effective Sept. 1, 2013. However, the SWIFT funds would not be established until the constitutional amendment proposal (SJR 1) passed by the voters in the statewide election November 2013. This vote would authorize the state to move $2 billion from the Rainy Day Fund to set up the funds. There were lots of pros and cons on this proposal, and LWV-TX undertook a campaign to pass the amendment, including a press conference, working with other groups, and working with local Leagues, sending them blue wristbands to show their support. The amendment passed by a wide margin.

2017 This session was not focused on water issues. And several good bills that passed in one house failed to be considered in the other due to tensions between the two houses over unrelated, tendentious issues, such as transgender person's use of public restrooms. So progress overall was limited.

The LWVTX supported bills to protect groundwater (see Land Use paper), surface water, encourage conservation, encourage rainwater harvesting, wastewater reuse, storm water control, desalination, and aquifer storage and recovery. Of these, HB 1648 was signed by the governor providing that any private water utility with over 3,300 connections to specify a conservation officer to be responsible for the utility's conservation plan. SB 59 was also signed into law providing more specific support from the Texas Commission on Environmental Quality for water and energy conservation planning by all state entities.

The League also supported many measures that would strengthen the Water Code and the administration of regulations by the Texas Commission on Environmental Quality, the Texas Water Development Board, and the Railroad Commission, which has a great deal of enforcement authority for the drilling industries to prevent contamination of groundwater. The League supported many of the recommendations of the Sunset Commission in its review of the Railroad Commission. Of these, only a few were signed by the governor.

  • SB 864 requires that groundwater conservation districts be notified if the Texas Commission on Environmental Quality receives an application for the use of surface water that identifies groundwater as a backup source.
  • HB 2215 adjusted the due dates for groundwater conservation districts to adopt desired future conditions (31 Tex. Admin. Code, Pt. 10, §356.10[6]) of aquifers in order to harmonize with the dates for new iterations of the state water plan.
  • HB 1818 (a) requires the Railroad Commission to develop an Alternative Dispute Resolution Policy (an annual plan for strategic use of its resources for monitoring and enforcing oil and gas violations) and publish a report of all violations and enforcement measures annually, and (b) provides fees on pipeline applications sufficient to cover administrative and safety enforcement activities.
  • HB 1573 requires training standards for certified water loss auditors.
  • SB 347 specified that regional planning group meetings be subject to all open meeting provisions.

A very interesting bill that passed confirmed the legality of the contract that Midland had negotiated with an oil exploration company to exchange upgrades to its wastewater treatment plant for a guaranteed amount of treated wastewater to use in hydraulic fracturing. This seems like a win-win project that may be replicable in other places. Reducing the use of fresh water for hydraulic fracturing is an excellent conservation measure.

Several bills the League opposed also failed. Most would have rewritten state definitions and regulations in favor of regulating water as a commodity and reducing the time needed to approve a surface water permit, which would shift the balance in favor of developers by reducing protections for the public interest to be considered thoroughly.

The League also watched many bills that would have amended the process of developing the State Water Plan. SB 1511, the only one that passed, provides more hearings by the regional planning groups, the assessment of any strategies that were implemented and identification of impediments to the implementation of those that were not, and allows simplified planning, which means that if nothing has changed, every other 5-year update can be less comprehensive.

         Pertinent bills that passed and were signed by the governor.

  • SB 625 establishes a database of all special purpose districts with many specific data points required.
  • SB 1009 limits information requirements.
  • SB 1430 prioritizes handling of permits for desalination projects and limits time for appeals.
  • SB 1446 loosens some of the notification requirements in contested case hearing on surface water permits.
  • SB 1538 allows the use of the Floodplain Management Fund to collect information about planning, protection, mitigation, etc., and provide it to the public. Signed by the governor.
  • HB 544 allows the Water Development Board to fund planning for water projects as well as implementation.
  • HB 294 allows the Public Utility Commission to take over investor owned water utilities that do not comply with state rules in counties with over 2.7 million population.

         Related measures passed and signed by the governor, of interest as governmental oddities.

  • HCR 31 urges Congress to encourage the U.S. Department of Agriculture to change a regulation that requires a farmer to continue watering a crop that has already failed in order to collect on its crop insurance policy.
  • HB 965 requires state correctional facilities to comply with local water restrictions in times of drought.
  • HB 641 continues the Red River Boundary Commission that negotiates with Oklahoma over shifts in the riverbed.