Landowners Sue Texas for Putting|Them in a Water Conservation District

AUSTIN, Texas (CN) - Twenty Texans who own 406 square miles of the Texas Panhandle sued the state for trying to force them to join a water conservation district.

Gary Weaks et al. sued the Texas Commission on Environmental Quality on Feb. 27 in Travis County Court, claiming he and his co-plaintiffs acquired "unmanaged" water rights when they bought their land.

Calling it "socialism at its finest," Weaks told Courthouse News that the state has no right to force private landowners into a government water district.

Weaks claims that he and his co-plaintiffs in Briscoe County acquired their land through land patents, in which Texas "relinquishe(d) all public right to these lands, including water rights."

Briscoe County is in the High Plains, southeast of Amarillo. The 20 plaintiffs - 19 people and a family trust - are, so far, "not part of any groundwater conservation district."

Briscoe County has lost population every decade since the Dust Bowl of the 1930s, according to the U.S. Census Bureau. Its population of nearly 6,000 in 1930 sank to 1,790 in 2000 and 1,637 in 2010 - one housing unit and two people per square mile. Eighty-three percent of its people are white.

Their per capita income of $29,917 in 2010 (Census Bureau figures) has risen sharply since then, to $43,606 in 2013, according to the St. Louis Federal Reserve Board.

With the Great Plains and the Southwest suffering from prolonged drought, water has become a scarce resource in the West. As an aging population moves to the Sun Belt, and housing developments are built for them, groundwater pumping has been depleting aquifers at increasing rates.

Comparing local costs of water across the 3.8 million square miles of the United States land areas is fiendishly difficult. But the Texas Tribune reported in 2012 that water-rich Boston charged twice as much for water in 2011 as drought-stricken El Paso and San Antonio .

In January 2013, the Texas Commission on Environmental Quality (TCEQ) mailed notices to government bodies and public water districts that it would recommend putting the 406 square miles at issue into the High Plains Underground Water Conservation District No. 1.

Weaks claims that he and his co-plaintiffs were not given notice of the draft report or provided an opportunity to comment on it.

In December 2013, the TCEQ held a preliminary administrative hearing to take jurisdiction and name parties for an evidentiary hearing, but again, "no actual notice was sent to any private property owner," Weaks claims.

Weaks claims that he and his co-plaintiffs found out about the preliminary hearing and attended it, where he objected to State Office of Administrative Hearings (SOAH) and the TCEQ's claims to jurisdiction over his private groundwater rights.

"The TCEQ acknowledged and made a judicial admission at the preliminary hearing that it had no jurisdiction over private groundwater rights of the Aligned Parties. However, SOAH overruled these objections and took jurisdiction," Weaks says in the complaint.

The SOAH administrative law judge issued a Proposal for Decision recommending that the non-managed land in Briscoe County be added to the High Plains Underground Water Conservation District No. 1. The TECQ adopted the decision on Dec. 12, 2014. Weaks et al. filed a motion for rehearing on Jan. 8, but were rejected on Feb. 5.

Weaks claims that "the TCEQ lacks jurisdiction or authority to force private property water rights owners into a groundwater conservation district without compensation."

The TCEQ told Courthouse News that it does not comment on pending lawsuits.

The plaintiffs seek judgment reversing the TCEQ order affecting their private property water rights, and want the matter remanded to the State Office of Administrative Hearings.

They are represented by Donald Grissom of Grissom & Thompson in Austin.

Water rights, an arcane and generally boring corner of the law, have leapt into prominence as drought, groundwater pumping and mass migration to the U.S. Southwest have drained the aquifers that accumulated water over millions of years.

One hundred seventy years after Mark Twain wrote that in the West, "whiskey is for drinking and water is for fighting," the United States is beginning to understand what Twain meant.

Despite the obvious and wide-ranging implications of drought and groundwater exhaustion, the best publicly available analysis of the effects of groundwater pumping remains the 38-year-old book "Killing the Hidden Waters," by the late Chuck Bowden.

Eighteen percent of Briscoe County's workers work for the government, according to city-data.com. The county is offering a $200 prize for the best picture of the county, according to the county website, checked Monday afternoon.

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