An old-West saying proclaimed, “Steal my horse; carry off my wife; but don’t touch my water.” Texans fight over water. Even here in the Gulf Coast area. In fact, in Montgomery County, we have a good, old-fashioned water war erupting. Last week in Conroe, it escalated again, putting millions of residents in surrounding counties at risk. Here’s the latest volley in a shot heard across the Gulf Coast.

Trigger: Resolution Passed by Conroe

On July 11, 2019, the Conroe City Council passed a resolution supporting the Lone Star Groundwater Conservation District which is fighting the Texas Water Development Board’s (“TWDB”) recommendation to incorporate the 2010 Desired Future Conditions (“DFCs”) into its Groundwater Management Plan.

Battle Lines Drawn

To someone who hasn’t been following this controversy closely, that resolution sounded innocent enough. Like a little squabble about objectives. But it’s much more.

It’s a struggle for control of inexpensive ground water and the right to pump it, even though unlimited pumping will damage other people’s property.

One side says unlimited pumping has no negative consequences and that restricting the pumping of groundwater violates their constitutional property rights, impinges their freedom, and restricts their ability to grow. They also feel that the forced conversion to surface water is a monopoly conspiracy to run up prices needlessly. They see the other side as over-reaching bureaucrats eager to impose needless and expensive regulation on a population strapped by high water rates (even though Moco surface water rates compare favorably with others throughout the region).

The other side says unlimited pumping will cause subsidence, increase flooding, deplete aquifers, and deny others their fair share of groundwater. They see the other side as selfish water hogs, oblivious to the future, blind to science, and set on an unsustainable course.

Wowsers! How’d we get to this point?

Surface Water Vs. Groundwater: Pros and Cons

Several aquifers lie under the Houston region. Decades ago, people in neighboring counties learned that excessive pumping from these aquifers caused both depletion and subsidence. So they started converting to surface water to limit flood threats and property damage.

However, surface water is inherently more expensive for several reasons:

• You have to buy land to create lakes.
• You have to build dams and water treatment systems.
• You have to build extensive water distribution networks instead of pumping it from under your feet.

All of that creates incentives to continue pumping groundwater.

So groups advocating cheaper water in Montgomery County found two hydrologists who, surprise, surprise, told them subsidence and depletion won’t happen there – even though the area is already subsiding and water well levels have been in decline!

State Law Requires Neighboring Counties to Approve Pumpage

The state developed Chapter 36 of the Texas Water Code in large part to protect the public interest from private interests. It governs groups such as the Lone Star Groundwater Conservation District in Montgomery County.

Chapter 36 legislates goals for districts. They include:

• Conservation
• Preservation
• Protection
• Recharging
• Prevention of waste
• Control of subsidence
• Protection of property rights
• Balancing conservation and development of groundwater
• Using best available science.

Four Steps to Manage Groundwater

By law and convention, groundwater and subsidence districts manage groundwater with a four-step process.

• First, they set goals by defining “desired future conditions.”
• Second, they model how much groundwater they can pump to meet those goals.
• Third, they develop a plan for achieving the goals.
• Fourth, they develop rules for implementing the plan.

It’s enlightening to see how those steps have played out in Montgomery County.

Step One: Define Desired Future Conditions

Groundwater management AREAs (GMAs) set “desired future conditions” (DFCs) or goals for a region. This helps prevent selfish decisions by individual groundwater conservation DISTRICTS (GCDs).

Under current law, goals are now set by a vote of all the GCDs in a GMA. 

Instead of your local GCD setting goals for its area, the district must go to the GMA and convince the larger group of GCDs to approve goals for the area. This limits local control, but prevents one district from allowing the aquifer to be mined to the detriment of surrounding counties.

LSGCD did not like the DFCs (goals) that were approved by the members of this area in 2010. So the board, now run by a former Conroe mayor got the Conroe City council to pass a resolution that supported the exclusion of GFCs from the LSGCD groundwater management plan.

Step 2: TWDB Sets Limit

After the districts in a GMA set the DFC or goal, the Texas Water Development Board (TWDB) sets the Modeled Available Groundwater (MAG).  This is the volume of groundwater that can be pumped in a particular area while still meeting the DFC goal.  

For example, if Montgomery County wants to maintain stable water levels in the aquifer (at today’s height), then producers can pump approximately 65,000 acre feet per year. Prior to the introduction of surface water in 2015, producers were already pumping in excess of 90,000 acre feet per year.

Step 3: GCD Develops Management Plan

Once TWDB sets the MAG limit, then the GCD is supposed to develop a management plan that includes the approved DFC and MAG. The plan describes how they will achieve the DFC goals.

The TWDB rejected the Lone Star Conservation District’s (LSGCD) plan because it did not include a DFC and MAG approved by the rest of the districts in GMA 14. 

The LSGCD board doesn’t like the DFC that was approved by the other GCDs because it would limit pumpage to a sustainable amount. They think mining the aquifer will have NO negative consequences, either to them or to neighboring counties. 

They don’t want to be stuck with the 2010 DFC because those DFCs limit pumpage to a sustainable amount. Their problem:

Texas law doesn’t allow TWDB to approve just any DFC that LSGCD wants. All GCDs in the area must approve the goal.

Step 4: GCD Adopts Rules to Meet Goals

Once TWDB approves the management plan, a GCD must adopt rules to achieve its goals.  Most often, this means adopting rules that limit pumpage to no more than the MAG (limit). 

However, GCDs can structure rules many different ways to accomplish their goal.  For instance, they could proportionally limit everyone’s pumpage by the same percentage.  Or establish different classes of users with different rules for each, etc.

Chapter 36 gives GCDs quite a bit of flexibility. However, a judge found in May that a rule adopted by LSGCD was outside their statutory authority (see point #4 on page 3).  LSGCD is trying to argue that the Judge’s ruling rejected DFCs. However, other conservation districts argue that his ruling applies only to the rules LSGCD adopted.

DFCs Listed For MoCo in GMA-14 Report

To confirm the latter, I downloaded and reviewed the 2010 GMA-14 report on desired future conditions from the TWDB website. On pages 30/31, it lists the goals for Montgomery County’s LSGCD. The goals say things like, “From estimated year 2008 conditions, the average draw down of the Chicot aquifer should not exceed approximately 3 feet after 8 years.” They go into similar detail for other aquifers, but using different dates, time spans and depletion rates.

A 1186-page document adopted in 2016 contains similar DFCs. See Pages 21 and 22 in Section 3.1.9.

These goals are, in fact, different from the rules that the judge found unenforceable.

Section on Subsidence in Executive Summary

Note the executive summary in the last report. It says:

“Subsidence is a major factor in GMA 14. The GMA 14 consultants spent considerable time and effort to evaluate potential impacts by the DFCs on subsidence. The only means of preventing  subsidence  is  stabilizing  groundwater  levels  throughout  the  Gulf  Coast  Aquifer System. The District Representatives concluded that the only means of stabilizing groundwater levels is to limit groundwater production.”

This report was approved unanimously by every subsidence and groundwater conservation district in the management area plus their consultants.

Complaints by other Districts

If you have a hard time following this (and many people will), consider what other experts in GMA-14 say in their letters to the Texas Water Development Board when protesting the action of the LSGCD:

• City of Houston Public Works: “Houston is concerned that (LSGCD’s) Management Plan … does not safeguard aquifer recharge and recovery and does not support efforts to address subsidence.”
• North Harris County Regional Water Authority: Requests the TWDB to reject LSGCD’s most recent Management Plan for its failure to comply with the Texas Water Code.
• Montgomery County Water Control and Improvement District #1: Complains about the loss of wells due to water level declines and the expenditure of millions of dollars to drill new wells and reset pumps. Requests TWDB to reject the LSGCD Management Plan.
• West Harris County Regional Water Authority: Urges TWDB to reject LSGCD Management Plan because of the impact it will have on groundwater availability and subsidence in northern Harris County.
• Woodlands Joint Powers Authority: Requests TWDB to reject LSGCD Management Plan citing pumping of groundwater above sustainable levels, risk of additional water level declines, land subsidence, and flooding that would negatively impact private property rights throughout the region.
• Harris-Galveston Subsidence District: The LSGCD management plan… “underrepresents the amount of subsidence that has occurred in Montgomery County. … Any additional withdrawal could cause pressure declines in Northern Harris County and additional subsidence.”

Protect Your Own Interests

Every person and entity who stands to be negatively impacted by LSGCD and Conroe’s actions should make their voices heard. They should notify TWDB that they oppose LSGCD’s appeal and support DFCs that prevent water-level declines and subsidence. They also should notify newspapers, neighbors, and community groups. Subsidence is irreversible. A few years of unlimited pumping can produce water level declines that take hundreds of years to reverse.

So speak up NOW.

Posted by Bob Rehak on 7/20/2019

690 Days since Hurricane Harvey

The thoughts in this post are my opinions on matters of public interest and are protected by the First Amendment of the U.S. Constitution and the Anti-SLAPP statute of the great state of Texas.