With each issue, Trib+Water brings you an interview with experts on water-related issues. Here is this week's subject:
Sarah B. Faust is a water and environmental law attorney with Kemp Smith LLP. She has significant experience in water supply, water quality, wastewater management, land use and endangered species issues, with a particular emphasis on groundwater matters. Although much of her work is for governmental entities, she also represents individuals, corporations and other organizations. She lives in her hometown of Austin.
Editor's note: This interview has been edited for length and clarity.
Trib+Water: Why water law? Is there anything particular to the laws in Texas that make practicing water law here more fun than elsewhere?
Sarah B. Faust: Well, one thing about Texas water law that makes it maybe more fun than elsewhere would be that there is very diverse geology, geography and ecosystems across Texas because it’s such a big state, especially in groundwater. We have aquifers across Texas that are very unique in the way that they’re recharged. And the effects from groundwater withdrawal are very different in different parts of the state. We have aquifers on the Gulf Coast where groundwater withdrawal can cause subsidence so that the area around the withdrawal, the land area is actually lowered. In other areas of the state, subsidence isn’t an issue, but here in Central Texas, our aquifers can get very, very low and almost dry up but then recharge very quickly. And they’re very sensitive to pollution. Aquifers in the Panhandle are very different.
So that makes groundwater management very interesting because you’ve got to have a set of legal principles that can be applied to all these really different, unique resources. Additionally, in Texas, we have a long history of water law to draw on, but at the same time, it is also rapidly evolving and changing. And there’s certain surface water issues that are still being decided. So that makes it fun, that it’s big principles that are still being laid out.
Trib+Water: One theory floating out there is there really isn’t a legislative fix for setting up a long-term water regime in Texas but that it will be court fights and case law that determines things. How would you evaluate that argument? And what is your theory of the case on how the state should address its water needs?
Faust: Water law is rapidly becoming an area of critical importance that relates directly to public health, environmental and economic issues. It’s an issue that has implications across the state yet it is also very local and involves every local government and individual in Texas. You need the Legislature to create policy and regulatory structures and create agencies and tell them what to do. But we also need the common law and being able to go to the courts to protect the rights of all these different stakeholders and to have disputes fairly determined. I think that we need both the legislative solutions and the judicial branch.
Trib+Water: Along those lines, what are the cases that folks should look out for as important ones dealing with water in the coming months and years?
Faust: There’s several important cases going on. In 2012, we had the Edwards Aquifer Authority v. Day and McDaniel decided, and that was a very important case. The next sort of step that’s working its way through the courts now is another case, which is the Edwards Aquifer Authority v. Bragg. And those two cases are dealing with groundwater and regulatory takings and the need for just compensation under the Constitution because of groundwater regulations.
There’s another very important case — that’s a federal case — TCEQ v. The Aransas Project. That case is about endangered species. It’s about endangered whooping cranes and whether or not the way the state of Texas manages surface water rights has resulted in a taking. That’s important because the way that they manage the water rights in this particular area is the way they manage it all over the state. And how they take into account endangered species could be changed as a result of this litigation.
Trib+Water: I would imagine that would have quite an effect on water planners all across the state.
Faust: Absolutely an important effect on water planners. We also know that over the next few years we’re actually expecting several more decisions from the Fish and Wildlife Service on endangered species listings. There’s a potential to have many more aquatic species listed. So even where we are not currently managing for endangered species, we might need to in the future. So we need to make sure that’s done in accordance with the law.
Trib+Water: If you had your say on how water policy should be done, what do you think should be the guiding principles that should inform a sustainable, long-lasting approach to making sure Texans have enough water?
Faust: Decisions about water management have effects on many different users. They have effects on individuals, industry, the environment, agriculture. And probably the most important principle is honoring the laws and regulations that we have in place and taking into account the wide variety of stakeholders affected by water management.
Trib+Water: Looking at the legal structure that exists right now when it comes to water in Texas, is the structure robust enough to handle what needs to be done? Is there any aspect of the structure of water law that needs to be looked at, overhauled, changed, expanded?
Faust: I think the answer to that depends on the specific resource in question. We have a fairly good balance in Texas of local governance of water resources and statewide management. If there’s a particular area that needs to be developed further, I would say one thing that we see now is there’s greater demand on our water resources. As we have less freshwater available because of the demand, we’re seeing technology develop to reuse our water. And I think it can be difficult for the legal frameworks to evolve quickly enough to manage these new technologies. So rather than a level of government, it’s actually a process of being able to use our water efficiently and having a legal framework that can evolve and handle the new possibilities that they can be utilized.
We bring all of our common law and all of our existing regulatory structure to deal with a new way of reusing water or using types of water that we didn’t previously access very much, like with desalination. We have to figure out, is the technology safe? How are the current uses being protected? And balance that with making these “new” sources of water available since we need them.
Water disputes are complex and can have wide-ranging impacts. It’s important to have legal structures that can deal with the variety of situations that arise. It’s an endless variety of situations that arise. And it’s part of what makes it an exciting area of the law to work in.