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txH2O Fall 2011

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The time it never rained

How Texas water management has changed because of recurring droughts

Story by Kathy Wythe

It crept up out of Mexico, touching first along the brackish Pecos and spreading then in all directions, a cancerous blight burning a scar upon the land.

Just another dry spell, men said at first. Ranchers watched waterholes recede to brown puddles of mud that their livestock would not touch. They watched the rank weeds shrivel as the west wind relentlessly sought them out and smothered them with its hot breath. They watched the grass slowly lose its green, then curl and fire up like dying cornstalks.

Farmers watched their cotton make an early bloom in its stunted top, produce a few half-hearted bolls and then wither.

Men grumbled, but you learned to live with the dry spells if you stayed in West Texas; there were more dry spells than wet ones. No one expected another drouth like that of ’33. And the really big dries like 1918 came once in a lifetime.

Why worry? They said. It would rain this fall. It always had.

But it didn’t. And many a boy would become a man before the land was green again.

Prologue, The Time It Never Rained, by Elmer Kelton

The Time It Never Rained, a historical novel by Elmer Kelton, embodies Texas’ drought of record that lasted from 1950 to 1957. The book reflects many of the experiences Texans, especially rural Texans, had during the worst drought in recorded history.

Ranchers sold entire herds of livestock. Farmers watched as their crops shriveled and blew away.

Comal Springs stopped flowing out of the Edwards Aquifer for the first and only time in recorded history.

Rural towns turned into ghost towns when the agricultural population fell by 35 percent. Dallas built pumping stations to pump water out of the salty Red River, making it flow by gravity to Lake Dallas. Once the water arrived in Dallas, people were afraid to drink or use it because of the damage it might do to their families, their water pipes and their laundries. In 1952 the Cotton Bowl, the stadium at Fair Park in Dallas, drilled its own water well within the stadium to water its turf because Dallas could not furnish the water.

By the end of the drought, 244 of 254 counties in Texas were classified as disaster areas. The cost of the drought is estimated at about $3.5 billion (in 2008 dollars) for each year from 1950 to 1957.

Those experiences are etched into the minds of Texans. And those memories were translated into major changes in the way the state of Texas managed and regulated its water.

TWDB formed

One of the first actions the Texas Legislature took after the 1950s drought was the establishment of the

Texas Water Development Board (TWDB) in 1957. The new state agency was charged with forecasting water supply needs and providing funding for water conservation and water supply projects. Today, the

TWDB is responsible for state water plans that, in part, forecast the water needed by the state in times of drought.

Reservoirs built

To help the new water board with its mission, the Texas Legislature also presented Texans with a constitutional amendment in 1957, authorizing the issuance of $200 million in general revenue bonds for TWDB to make loans to municipalities for use in the conservation and development of water resources.

“Because of that and subsequent bonding authority, as well as water providers stepping up themselves to respond to that drought, there was quite an increase in reservoir construction across the state,” said Dr. Robert Mace, deputy executive administrator of TWDB’s Water Science and Conservation program area.

More than 126 major reservoirs were constructed from 1957 to 1980.

Water planning

Along with the creation of the TWDB, the Legislature passed the Water Planning Act of 1957, which mandated that the Texas Board of Water Engineers (later renamed the Texas Water Commission) develop a plan to meet the state’s future water needs.

“That plan was published in 1961. So that really formally kicked off what we would call state water planning in Texas,” Mace said.

“This blueprint of how the state would deal with another drought of record showed how seriously everyone took that drought,” said Dr. Todd Votteler, executive manager of intergovernmental relations and policy for the Guadalupe-Blanco River Authority.

Surface water rights overhaul

Droughts in Texas have also brought major changes in the state’s surface water rights management. A water right is a legal right to divert surface waters for a beneficial use. Although today the state owns the surface water in Texas and grants the right to use this water to different people and entities, it was not always that way.

Dr. Ronald Kaiser, chair of the Texas A&M University Interdisciplinary Graduate Water Degree

Program, said the state’s challenges with water rights go back further than the 1950s drought, to the droughts of the late 1880s and early 1890s.

The riparian doctrine that Texas used at the time, in which landowners adjacent to a stream or river had a right to use the water, “proved unworkable in resolving water scarcity conflicts, forcing the Texas Legislature to change its water allocation law,” he said. “Relying on the water law experiences of western states, the Texas Legislature incrementally adopted the prior appropriation doctrine. In adopting appropriation principles, the Legislature preserved water rights granted under civil law and riparian.”

Prior appropriation is based on “first-in-time, first-in-right,” which gives the water first to the most senior water rights holder, or the entity or person that had a water right in the river or stream earlier in time, before junior water right holders during times of scarcity and drought.

“This system presented few problems when water was available to satisfy all users,” he said. “However, during drought conflicts arose.”

Those conflicts were brought to a head in a massive lawsuit filed in 1953. The state of Texas filed a lawsuit, referred to as the Valley Water Case, against a Rio Grande Valley irrigation district. The state asked the court to adjudicate the water rights in the Rio Grande Valley because the water rights claims based on civil law, riparian law and the prior appropriation system exceeded the amount of water available in the Rio Grande, said Kaiser, who is also a professor in Texas A&M Department of Recreation, Park and Tourism Sciences.

The suit took years to resolve and involved about 3,000 parties seeking rights to a limited supply of water in the Rio Grande.

“This case illustrated that 78 years of legislative and judicial attempts to reconcile the two systems were expensive and lengthy, and that another approach was needed,” Kaiser said.

A district court judge took possession of the United States’ share of Rio Grande waters, reassigning the rights and establishing the Rio Grande Watermaster.

Carlos Rubinstein, head of the Texas Commission on Environmental Quality (TCEQ), said that by reassigning the rights, the judge “created the new way of managing water in the lower Rio Grande where priority was based on the type of water use, with municipal uses having the highest priority.

“Because of the lawsuit, water rights in the Rio Grande downstream of Amistad Reservoir, unlike the rest of Texas surface water rights, are not based on seniority,” he said. “Instead, the Rio Grande Watermaster controls water allocations under a complex system that is designed to apportion water first for municipal, domestic and industrial uses, then to irrigation districts and agriculture uses.

“It was a significant departure on how water rights in the West are managed,” Rubinstein said. “For the lower Rio Grande below Amistad now, we don’t have a priority date when it comes to water rights.”

Today the state has two additional watermaster programs—South Texas Watermaster Program and Concho River Watermaster Program—that manage, monitor and enforce surface water rights based on priority date and ensure compliance with water rights by monitoring stream flows, reservoir levels and water use.

In 1967, the Texas Legislature passed the Water Rights Adjudications Act, merging the riparian rights system into the prior appropriations system, thus consolidating the allocation of surface water into a unified water permit system, Kaiser said. The Texas Water Rights Commission, a predecessor to TCEQ, was given charge of surface water rights.

Comal Springs and groundwater

When Comal Springs dried up in 1956, another conflict eventually ensued.

In 1991, the Sierra Club filed a lawsuit under the Federal Endangered Species Act. The federal judge in the case, Sierra Club v. Babbitt, ruled that limits on the use of the Edwards Aquifer were needed to protect endangered species found in Comal and San Marcos springs. The best solution, he said, was for the state to manage the aquifer, and in 1993, the Texas Legislature created the Edwards Aquifer Authority (EAA) to regulate groundwater in the aquifer.

The Legislature directed the EAA to regulate pumping from the aquifer, implement critical period management restrictions and pursue measures to ensure minimum continuous springflows of the

Comal and San Marcos springs are maintained to protect endangered and threatened species, according to the Edwards Aquifer Recovery Implementation Program website.

“Giving the Edwards Aquifer Authority the authority to regulate groundwater changed the landscape and represented a fundamental change in groundwater law in Texas,” Votteler said. “You saw an explosion in creation of groundwater districts once the Texas Supreme Court decided the regulatory powers of the Edwards Aquifer Authority were constitutional. The Court gave the Legislature the green light to create districts that could regulate groundwater.”

More droughts, more changes

After the drought in 1995–1996, the Texas Legislature passed Senate Bill 1, probably the most comprehensive water bill in the state’s history. One of the major changes was the state water planning process.

“Initially the planning process was a top-down approach,” Mace said. “It wasn’t until 1997, after another drought in 1996 and the passage of Senate Bill 1, that a regional water planning concept—a ‘bottom-up’ approach—was developed.”

Senate Bill 1 established 16 regional water planning groups that include members representing agriculture, industry, the environment, cities, water utilities, power companies and other interests. The bill also required the TWDB to publish a comprehensive state water plan every five years and base its projections on a 50-year planning horizon.

Mace said the drought in 1996 served as a wake-up call that perhaps the state wasn’t as ready for a drought as it should be, and the state water planning approach needed revising.

“The concern was that the stakeholders, the local folks, weren’t familiar with the plan and hadn’t participated in the development of the plan,” Mace said. With the regional water planning adopted in Senate Bill 1, the local groups “were in the driver’s seat of the planning process with state oversight. The regional water planning groups now make decisions on what projects or strategies need to get used to make sure the state was ready for a drought.”

Votteler agreed that working on water issues through the state water plan is a priority for the state, but the plan is just half of the equation. “The other half of the equation is how we would finance the projects in the plan,” he said. “That has never been resolved. The Legislature has struggled with that issue and continues to struggle with it.”

He believes that lack of adequate funds is mainly because the state has not had another serious multiyear drought for a number of decades. “People were lulled into complacency,” he said. “Since the 1980s we have had many one- to two-year droughts, and they have terrible impacts, particularly on agriculture, but large municipal and industrial users of water have not been affected as seriously. And so it is not spurring people to action.”

Senate Bill 1 also required water suppliers to develop drought contingency plans that list how they are going to respond when drought comes.

Drought Preparedness Council

In the midst of another drought, the Drought Preparedness Council was created by the 76th Texas Legislature in 1999. The council is a collection of state agencies that coordinate activities on drought.

The council develops and implements a comprehensive state drought preparedness plan, separate from the state water plan, for mitigating the effects of drought in the state.

Current drought

Have all the changes in policies, laws and agencies through the years made a difference in the current drought?

“They absolutely have,” Rubinstein said. “We learn from every drought. And each one leads to identification of things that you might need to look at in statutes or in rules to manage droughts in the future as well.

“That is indicative of what occurred in our sunset bill, where we actually got some additional clarifying authority on how we manage water rights,” he said, adding that the bill was a result of what the state learned from the 2009 drought.

TCEQ has curtailed junior water rights this year to meet at least 12 senior priority rights calls.

“What we would do in a watermaster area, relative to the monitoring of river conditions and ordering curtailments where needed, we’re doing that statewide,” Rubinstein said.

If the commission is not going to curtail the water rights, it can adjust the diversion rate, he said.

“We (the commission) can adjust the diversion rate of a water rights holder, and that’s a way of making it work for everyone,” Rubinstein said. “If you’re a junior rights holder and you can satisfy your demands and save over 30 percent of what you’re entitled to by not diverting other water so that we can make water available to senior water rights holders downstream, then it’s good for us to have the ability to do that rather than to cut you off entirely.

“When you’re dealing with an emergency, such as a drought, and trying to mitigate it, you don’t want to go create another emergency, such as curtailing water rights inappropriately and creating a public health concern,” he said. “We do take into account what it means to shut down a city that happens to be a junior water rights holder.

“When you are in a drought, the watermaster has access to more current data and a constant interaction with the users that allows him to more quickly respond to water shortages,” Rubinstein said. “When you’re looking at how to best utilize state water, you’re able to determine where and what actions you could take to stretch that water as far as you can to meet the demands. We’ve taken the things that we’ve learned from watermaster areas, applied them not only in the 2009 drought but in the drought of this year, in the areas where we don’t have a watermaster.”

Mace said he believes the water planning process adopted by the state has made a difference in its ability to cope with the current drought. “Are we where we need to be with implementation?” he said. “No.”

“One thing to remember is that it’s a plan. So there’s still the responsibility of individual water suppliers and cities to implement that plan to make sure they’re ready for the next serious drought,” he said.

“The plan, at the very least, gets people thinking about the fact that we’ve had really bad drought in the past—therefore, we could have really bad drought in the future—and ask the question, ‘What do we need to do to make sure we have enough water?’ But then it’s contingent upon the local leadership to ensure that those strategies get employed, or put into place, before the next drought hits.”

Votteler agreed that the state is in better shape after the massive effort to develop the water planning process to get the state through the next drought of record. “However, once we achieved having those water supplies online in the 1980s, the effort didn’t continue,” he said. “As new residents have flooded into the state, the surplus has evaporated.”

A look to the future

Mace said he is concerned about how this drought is being conveyed to Texans as the worst drought on record. Because drought can be measured in different ways, this drought may be one of the most intense, but at least for now, it is not the longest, and the impact on water supplies and agriculture is not as great as the 1950s drought.

“Now if it rains this winter, people might walk away from it, going, ‘Well shoot, I just lived through the drought of record, and it wasn’t all that bad,’” he said. “But if conditions like this go on for another five years, you can imagine what that would do to stressing everybody’s water resources. This drought doesn’t have anything on the drought of the ’50s yet.

“The last year of that drought was still fiercer, as far as the Palmer Drought Severity Index is concerned, than this current drought, but its persistence is what was really damaging.

“People need to ask themselves the question, ‘What if this drought lasted another five years? How would we be doing with our water supplies?’ These are the questions the water planners are asking.”

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