Editorial by Billy Howe

The editorial that ran in this newspaper on February 26, challenging the Texas Farm Bureau’s position on the Lucio groundwater bill, serves to highlight the misunderstanding of what ownership of groundwater in Texas means.

 

I have worked on water issues in the Legislature for most of the last 20 years, much of it with the Farm Bureau. The courts have been very clear in stating that ownership of groundwater is based on the ownership of the land above it. Groundwater belongs to the landowner. It does not belong to the community. Allowing a utility to take credit for water under land it does not own is an attempt to transfer landowners’ groundwater rights to the utility.
“Retail public utilities” under the Lucio bill aren’t just rural. It includes any “person, corporation, public utility, water supply or sewer service corporation, municipality, political subdivision or agency operating, maintaining, or controlling in this state facilities for providing potable water service or sewer service, or both, for compensation.”  That means urban utilities would have this authority as well.

The Lucio bill does little to protect rural water supplies. It would empower retail public utilities to take credit for the water under land they don’t own. If the Legislature can do that, then it has the power to grant any groundwater user that authority. That means large urban areas will ultimately control water rights.
If the big cities hold this power, why should water marketers or big cities pay rural landowners for their water? They can just ask the Legislature to pass a bill to give them rural water rights. This is a bit like the old story of two wolves and a sheep voting on what to have for dinner.

Rural Texas does hold one important advantage and that’s the Texas Constitution. The Texas Farm Bureau recognizes that municipal authorities can take water that they need. Utilities seeking the right to take it without compensation is different matter. That is unconstitutional. If there is a public need for that water, the public must share the cost. The Texas Constitution says so. The courts have agreed with this approach.

 

Rural retail public utilities will find that landowners are likely willing to work out voluntary agreements allowing the utility to pump their water. These landowners understand that it is in their best interest to have affordable and dependable water service. That would seem to be a much more reasonable and legal approach than the certain avalanche of legal action that the Lucio bill would inspire. We respectfully disagree with the bill that Representative Lucio has filed.

 

Billy Howe of the Texas Farm Bureau