War Over Texas Aquifer Management Fought at Fifth Circuit

A spring surfaces from the Edwards Aquifer in Texas. (USGS)

HOUSTON (CN) – A tug-of-war over management of a Texas aquifer that provides drinking water for 2 million people, pitting farmers and river conservationists against San Antonio residents, went before a Fifth Circuit panel on Wednesday.

The Edwards Aquifer is contained by limestone that underlies the Texas Hill Country. Shaped over eons by underground rivers, the porous limestone is honeycombed by caves and crevices.

The aquifer lies under eight Texas counties that are broken down into three regions: western counties whose farmers tap the aquifer for agriculture, eastern counties that depend on its springs to feed rivers that sustain a thriving recreational tubing industry, and San Antonio. It provides drinking water for the city’s 1.25 million residents.

In 1995, the Texas Legislature established a 15-member elected board of representatives for the Edwards Aquifer Authority, or EAA.

To balance the competing uses of the aquifer, also home to several endangered salamander species, the Legislature designed the voting system so four directors are elected from the agricultural counties, four from the spring-dependent counties and seven from Bexar County, home to San Antonio.

San Antonio residents’ votes for the directors have less weight than their counterparts in the eastern and western areas because there are far fewer residents in those regions.

The League of United Latin American Citizens, a civil rights group established by Hispanic World War I veterans in 1929, sued the agency in 2012 on behalf of three San Antonio residents who took issue with the aquifer authority’s voting system.

LULAC claims that although San Antonio residents fund 75% of the aquifer authority’s operations through water-use fees they pay to the San Antonio Water Management System – which pays the authority for permits to pump water from the aquifer – they have the least say in its management because their votes are diluted.

The San Antonio Water Management System intervened as a plaintiff and the Guadalupe-Blanco River Authority, which operates seven dams on the Guadalupe River, intervened as defendants along with the cities of San Marcos and Uvalde and Uvalde County.

LULAC says the voting regime violates the one-person, one-vote guarantee of the 14th Amendment, arguing U.S. Supreme Court precedent requires that government agencies with broad powers like the aquifer authority’s must abide by the equal-vote principle.

U.S. District Judge Orlando Garcia disagreed and dismissed LULAC’s equal-protection claims in June 2018, prompting LULAC’s appeal to the Fifth Circuit.

The aquifer authority’s counsel Deborah Trejo, of the Austin firm Kemp Smith, told a Fifth Circuit panel at the Houston federal courthouse Wednesday its powers are very limited by the Texas Legislature.

“It does not own any water. It simply ensures there’s water in the aquifer and that it’s reasonably clean,” she said.

LULAC’s attorney Allison Riggs with the Southern Coalition for Social Justice, a North Carolina nonprofit, said the aquifer authority has more than administrative power because it can decide if a transfer of a water-usage permit from agricultural to industrial use, for example, is for a beneficial use.

Trejo said Riggs is incorrect. “If you say you want to switch from one use to the other, we can’t say no. The EAA’s role is ministerial, changing the permit,” she said.

Though the authority has no direct power to tax, Riggs said it can do so indirectly by fining people who have abandoned wells on their property and asking courts to assess civil penalties against well-permit holders who violate its regulations.

“The EAA can regulate how water can be used on golf courses and mandate conservation through rates increases,” Riggs said.

Senior U.S. Circuit Judge Patrick Higginbotham, a Ronald Reagan appointee, seemed to side with the aquifer authority.

He said Bexar County voters, through their state representatives, did actually have a say in how the competing aquifer uses were balanced by the Legislature, and questioned if LULAC appreciated that the aquifer had helped San Antonio thrive.

The city population increased by 24,200 from 2016 to 2017, making it the fastest-growing U.S. city during that time period, according to the U.S. Census Bureau.

“You’re describing gifts of aquifer as burdens on Bexar County residents. It looks to me like a gift from the good Lord,” he told Riggs.

U.S. Circuit Judge Leslie Southwick, a George W. Bush appointee, also credited claims the authority has limited power, telling Riggs, “The EAA you say has too much power. But it’s clearly a limited power.”

Another Reagan appointee, U.S. Circuit Judge Jerry Smith rounded out the panel and spoke very little during the hour-long hearing.

The judges gave no timeline on when they would release a ruling.

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