Monday, October 25, 2010

WHO's Water is it?

WHO besides Texas Lone Star is worried about YOUR water?

Lots of folks.

Read about it in the Fort Worth Star-Telegram.  YOU can't afford not to.

But rancher J.K. "Rooter" Brite Jr. is worried -- worried that the courts, legislators or groundwater districts might take that water right away.

Brite, 58, isn't opposed to all regulation -- he doesn't approve of water marketers like billionaire Boone Pickens sucking aquifers dry, and he believes that groundwater districts can provide some protection from the oil and gas industry -- but he said strict groundwater-use regulations could cripple his ranching operation during a drought.

"If that right doesn't belong to me, and I do benefit because I know it's in reserve, then what incentive do I have to care for this land?" Brite said as he drove his pickup through tall stands of native grasses on his 3,400-acre ranch outside Bowie.

Restricting access to groundwater would discourage good range management practices that lead to less silt downstream in the Trinity River as it flows into Lake Bridgeport and Eagle Mountain Lake, he said.

"I guarantee you this soil will move if you don't protect it," said Brite, who serves as vice chairman of an agricultural research committee for the Texas and Southwestern Cattle Raisers Association.

A pending case, Edwards Aquifer Authority v. Burrell Day and Joel McDaniel, has been going on for over a decade and wrestles with the issue of who owns the groundwater underneath land.

The case has been heard by the Texas Supreme Court and may eventually affect the state's interpretation of groundwater rights.

A brief by Austin attorney Paul Terrill on behalf of a Medina County client, who also has a claim against the aquifer authority, argued that the Supreme Court "should reaffirm the clear principle that landowners have vested property rights in groundwater and reject [the aquifer authority] and the State's attempt to reverse a century of precedent and make it so that no government is ever required to pay just compensation for taking groundwater from a landowner."

Another case that concerns landowners is State of Texas v. 7KX Investments, in which land was condemned for a Texas Department of Transportation rest stop along I-35 south of Salado. The owners of the property argued that there was a vested groundwater right with the property and a jury agreed, saying it was worth $5 million.

The state has appealed, and Attorney General Greg Abbott argued in his appellate brief that under Texas' rule of capture law "a landowner does not have a vested and constitutionally protected interest in groundwater."

Any legislative action is unlikely until the Supreme Court rules on the Edwards Aquifer Authority case.

"I think everybody sees this as the big one; it's been before the Supreme Court and everybody has been waiting for a decision from the Supreme Court for months now," said Ken Kramer, executive director of the Lone Star Chapter of the Sierra Club.

Locally, groundwater districts became a political issue this year in the Republican primary race for Parker County judge, when challenger Cary McKay accused County Judge Mark Riley of bringing unwanted regulation to the county with the Upper Trinity Groundwater Conservation District.

At the time the Upper Trinity district was formed, Parker County officials said the state was forcing them to join a groundwater district and the formation of Upper Trinity was viewed as better than being placed in a district with Dallas and Tarrant counties, where they felt their concerns would lost to the bigger cities.

But Brite feels the same way about Upper Trinity, which stretches all the way north to include Montague County, where his ranch is located. He believes Montague County's groundwater planning has little in common with Parker and Wise counties, which have become more suburban over the last decade.

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