With what has been described as the worst drought in recorded history punishing parts of Texas, Attorney General Greg Abbott found a way to keep watering his yard without risking fines or incurring huge monthly bills: He drilled his own well.
Now his lawn is green, and there are no pesky city watering restrictions to worry about.
He is not alone. Abbott, the leading 2014 candidate for Texas governor, has joined an exclusive and growing list of Austin residents. That list includes Ben Crenshaw, the golfing legend, and Mack Brown, the University of Texas football coach — residents who are coping with the drought and rising water bills by procuring their own private water supply underneath their land.
But the trend is worrying city leaders and environmentalists, who fear that the rise in well drilling in rapidly growing Austin will negatively affect limited groundwater supplies, reduce the flow into rivers and discourage conservation.
“To me it’s just unconscionable. It’s a total disregard for the resource,” said Andrew Sansom, executive director of the Meadows Center for Water and the Environment at Texas State University. “What we should be doing is reducing our consumption of water.”
Abbott installed his well a few months before the city began aggressively enforcing its lawn-watering restrictions, issuing at least $11,000 in fines since August. In Abbott’s upscale West Austin neighborhood of Pemberton Heights, where lawns are remarkably green, some residents have put up signs that read “Watering by Private Well” to avoid reproach at a time when most of Austin can water grass only once a week.
Abbott and others who have drilled their own wells say they have a right to the water under their land and contend it is a better way keep their grass green. After all, is it not preferable to put well water on the lawn instead of the scarcer treated drinking water provided by the city?
Austin has no power to stop landowners from drilling water underneath their own terrain in pro-property-rights Texas. It can only monitor the proliferation of private wells, which Jason Hill, an Austin Water Utility spokesman, said officials are doing “vigorously.”
The City Council recently passed an ordinance requiring water well owners to register with the city and pay an annual fee of $90. So far, 314 wells are on file, and dozens more residents have submitted their intent to drill, but the city estimates that more than 500 existing wells have yet to register.
“We’re taking steps to see that we’re conscious of those wells,” said Greg Meszaros, director of the Austin Water Utility. But he was quick to add, “We’re respecting Texas property rights.”
The tension between property rights interests and the management of underwater resources is sure to increase in Texas politics as the drought continues to take its toll on the state’s surface water supplies. With the major reservoirs supplying Austin holding just over a third of their capacity, growing cities and industries are looking to groundwater to quench their thirst.
But the resource is hardly managed in some areas of the state, including Austin. While state legislators have set up nearly 100 entities elsewhere to regulate groundwater, Texas’ capital city goes by the century-old “rule of capture.” According to the rule, Abbott can pump the water under his land as much as he likes, even if a neighbor’s well were to go dry as a result — as long as he is not intentionally wasteful or malicious.
A Texas civil appeals court in El Paso famously upheld the rule of capture in 1954 for the father of Clayton Williams, a 1990 candidate for governor. Clayton Williams Sr. pumped so much water under his land that a popular Fort Stockton spring went dry, but justices ruled that he was within his rights because underground water supplies “belong to the landowner, and may be used by him at his will.”
Abbott’s spokesman, Matt Hirsch, declined to say whether Abbott supports continuing to govern groundwater in Texas using the rule of capture and whether he would seek any changes to it as governor. Hirsch did say Abbott favors individual rights to groundwater.
“As the Texas Supreme Court has made clear, all Texas landowners have a right to the water under their property,” Hirsch said.
A search of state records did not turn up any wells for state Sen. Wendy Davis of Fort Worth, who is poised to be the 2014 Democratic nominee for governor.
“She has a strong record of protecting the rights of Texas property owners and believes that if you own the land, you own the water underneath,” said Bo Delp, Davis’ campaign spokesman. He also said she supports the rule of capture and would not seek to change it if elected governor.
Still, groundwater is not an unlimited resource. Pemberton Heights lies atop the northern segment of a vast underground trove of water known as the Edwards Aquifer. Pumping of the aquifer south of Austin has been so heavy that a federal judge forced the state to manage the resource more than 20 years ago.
The Barton Springs/Edwards Aquifer Groundwater Conservation District is responsible for managing one such southern portion of the resource. Pumping in the Edwards there is known to directly affect spring flows in Austin’s iconic Barton Springs Pool, which the district must protect.
While pumping still puts Barton Springs at risk during times of drought, regulation and monitoring means the aquifer is well understood and managed, said John Dupnik, the district’s general manager.
In Austin, where no such restrictions exist, “all that pumping, all that well development, it’s occurring in a vacuum,” Dupnik said. “It’s not monitored. There’s no understanding of how it affects the system.”
Voters recently approved $2 billion in state financing to help pay for water supply projects, as Texas grapples with its exploding population amid a crippling drought. Abbott told reporters recently that a multipronged strategy, including conservation, is needed to meet the state’s water needs.
But another key strategy would be to drill, he said: “We need to look in the right areas for more access to groundwater.”
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