A collision is brewing in Texas between the approaches of two different water regulators, as suppliers scramble to secure rights to the same aquifer. But the fight isn’t just about the stress created by drought — it also hints at the ways fundamental concepts like private property and markets can begin to unravel when faced with the realities of ecological limits and climate change.
As the Texas Tribune reports, the center of the dust-up is the Carrizo-Wilcox aquifer in central Texas. The trouble is that — unlike the surface water in rivers and lakes, which is controlled by the state government — access to groundwater in Texas is controlled by a network of groundwater conservation districts (GCDs). And like many aquifers in the state, the Carrizo-Wilcox sits under the jurisdictions of multiple GCDs. The system was set up in the middle of the 20th Century to preserve local control and to treat groundwater as a private property right. But in practice, it means each GCD comes up with its own approach for administering water rights, and its own methods and plans for making sure it doesn’t overrun its allocated supply.
When it comes to the Carrizo-Wilcox aquifer, one of the GCDs atop it — the Post Oak Savannah GCD — takes the groundwater-as-private-property issue very seriously, issuing permits even for very large amounts of groundwater to marketers and users well before the water is actually pumped, and avoiding limits to pumping before it happens. Meanwhile, the Lost Pines GCD only issues permits for five-year periods, and requires users to pump their allotted water supply within that time.
The last piece of the problem is that one water marketer, BlueWater, has already secured more than 20 billion gallons of water rights from Post Oak, and is currently trying to leverage that supply into a $3 billion deal with San Antonio to provide the city with water. But other water suppliers are also negotiating with Lost Pines to provide water for the growing communities around Austin. And after years of legal wrangling, they’ve been unable to secure the rights — even as Bluewater gears up to drain billions of gallons from the Carrizo-Wilcox aquifer they’d all be relying on.
The purpose of Lost Pines’ more circumspect approach is to avoid lawsuits; allowing the aquifer to be drained more than planned for could trigger a court case, but so could limiting the pumping of anyone who has already secured water rights. Unfortunately, that approach hasn’t fully protected it: last year, one of the water marketers negotiating with Lost Pines sued the GCD, on the grounds that the more time-limited contracts prevented it from securing the customers it needed. The more open-ended deals provided by Post Oak, meanwhile, are more attractive to investors and customers because they guarantee a flow of water for a longer period, and bring marketers the investment they need to build out infrastructure.
Gary Westbrook, Post Oak’s general manager, told the Tribune that in the case of Lost Pines’ approach to providing water rights, “you’re projecting definitively what’s going to happen.”
“You’re going to choose winners and losers before the game is ever played,” he continued, in a word choice that echoes many defenders of free markets and opponents of environmental regulation.
The trick, of course, is that natural resources like water aquifers know nothing of markets or private property, nor do they respect political boundaries. And since property is fundamentally a social construct — there’s no way it has to be constructed, so societies can design property law however they wish — the structure of property rights don’t always map onto the natural realities and limitations of those resources all that well. The result, on the broadest scale, is that the global economy is in perpetual danger of overshooting the planet’s natural carrying capacity.
On the more local level, the result is fights over water resources, adjudicated by a system of property rights that isn’t well-suited to the challenge. “It’s a grab for a limited resource,” Bastrop County Judge Paul Pape told the Tribune, referring to the approach taken by Bluewater and Post Oak. “Without vigilance, it would be easy to overtax [the Carrizo-Wilcox].”
Texas as a whole has also been caught in similar legal battles with Oklahoma over rights to the water flow in the Red River, and with New Mexico over rights to the Rio Grande. Texas is already being ravaged by drought, with significant hits to its agriculture and beef sectors. And given the population growth in cities like Dallas/Ft. Worth, along with Austin, the state is increasingly desperate for reliable freshwater supplies.
Climate change will only exacerbate the problem. If humanity’s carbon emissions continue on their present course, the number of annual days over 100ºF could almost quadruple by mid-century in Texas, according to the National Climate Assessment recently put out by the federal government. Texas and Oklahoma will also see significant increases in drought, further ratcheting up the water scarcity problem. Perversely, the explosion of hydraulic fracturing as a way to crack open the hitherto unobtainable shale deposits of oil and gas under Texas has further stressed the drying state’s freshwater supplies, as the water is a crucial part of the franking fluid.
And on the west coast, a more acute version of Texas’ challenges can be seen in California, which has been pounded by drought for several years running. California’s system for administering access to surface water is also old and incoherent and poorly run, and the state has no system for administering groundwater supplies at all. California is currently pulling something like six million acre-feet of water more every year than in its natural ecology can replenish. So in the state’s latest legislative session, urban Democrats and other supporters managed to pass California’s first-ever plan for regulating groundwater — over the objections of Republicans and farm-area legislators — and Gov. Jerry Brown (D) is expected to sign it.
Studies have shown that the right kinds of water conservation policies and practices could close California’s water gap with room to spare. But implementing them, of course, would require limiting the very freedoms to use water that Californians, Texans, and other Americans look to private property rights to secure.