With each issue, Trib+Water brings you an interview with experts on water-related issues. Here is this week's subject:
As chair of Lloyd Gosselink’s Water Practice Group, Martin Rochelle focuses on the development and implementation of sound water policy by the Texas Legislature and in representing clients in water quality, water supply, and water reuse matters before the Texas Commission on Environmental Quality, the Texas Water Development Board, the U.S. Fish & Wildlife Service and the U.S. Environmental Protection Agency. He represents an array of water interests across the state, including cities, river authorities, regional water districts and other political subdivisions of the state, as well as industrial and commercial interests. Prior to joining Lloyd Gosselink in 1984, he served as committee counsel to the Texas Senate and as staff attorney at the Texas Department of Water Resources.
Editor's note: This interview has been edited for length and clarity.
Trib+Water: Is water law a growth industry?
Martin Rochelle: It sure seems to be while this drought continues. The importance of water continues to grow and so we have a pretty active court program here at the law firm that we’ve had for about 20 years. Fully half of the lawyers in my firm came through our court program. Water is a big draw. It’s been a big draw for a while and it’s a big draw now. … Certainly, we see engineering firms are moving this way as well.
Trib+Water: What cases have your attention as being influential on where water law is going? Are there any cases on your desk that you would identify as significant?
Rochelle: Well, the whole series of case law related to groundwater ownership in place and the manner in which groundwater conservation districts might be able to reasonably regulate the production of groundwater have, I think, caught everyone’s attention over the last few years and that area of the law remains to some extent disturbingly uncertain for such an important asset for our state and the people in it.
We are actively engaged in a number of cases involving new reservoir projects for our state. My firm has five or six reservoirs that are identified in the state water plan as critical to meeting somebody’s needs. We’re working on those projects and the manner in which state and federal governments permit those. It’s exacting and that’s OK. But it also takes an awful long time and in the middle of the drought, taking … 10 years or longer really enhances the challenge our state has as opposed to making them easier to deal with.
Trib+Water: When you talk about projected reservoirs, that hits a nerve with people. Why do think that is?
Rochelle: It’s fascinating to me. There are a handful of projects — two handfuls, maybe — that are projected to be developed over the next 20 or 30 years. New reservoirs account for well less than 20 percent of the total new water that the state water plan identifies will need to be developed. Conservation and reuse, on the other hand, is almost twice the supply made available from reservoirs.
On the one hand, yes, I see that folks get emotional at the microphones of public meetings related to reservoir projects. And, yet, if you ask most people, about the big lake that they enjoyed or even the small pond or reservoir they went to as a kid growing up, and you ask them to characterize the environmental catastrophe that project resulted in, nobody knows what you’re talking about. It sounds like most, if not all, existing reservoirs are just great but future reservoirs have consequences that seem to be out of line with peoples’ experiences around large lakes.
Trib+Water: What areas of water law need to be better defined, either through statute or through case law?
Rochelle: Groundwater law is somewhat uncertain and it has been. There’s been so many challenges to the rule of capture since 1904 when it was proclaimed by the Supreme Court. That’s a body of law that could use more definition. It’s become a lot more important as groundwater has become such a bigger part of the pie that makes up the supplies that we need to go develop over the next 50 years to address the projected deficit.
As source of water becomes such a greater part of the pieces in terms of solving our future challenges, more definition in the manner in which groundwater districts could reasonably regulate the development and use of groundwater supplies would be very helpful.
Trib+Water: Is this something the Legislature should be taking the lead on or is this something that evolves better through case law?
Rochelle: I’m not sure anybody would agree that laws related to groundwater have developed very efficiently or very cogently through case law. Yes, the Legislature is charged in the Constitution with addressing all of the state’s natural resources in the conservation amendment. Sure, this is something the Legislature should tackle. I think it’s a very difficult area of the law politically. Not just groundwater, all water law is and has been quite difficult. When you think of what the Legislature did in the mid '60s when it passed the water rights adjudication act, it went and adjudicated every surface water right in the state, virtually.
It took the state agency almost two decades to do that work. But I assure you that there were a lot of folks out there in Texas that didn’t like the fact that the state was coming in to tell them how much surface water, lakes, creeks, river water they were going to be able to divert. … Think about the number of budget cycles and the number of different Legislatures that had to appropriate dollars every two years for the state to continue its adjudication process over two decades. That kind of effort and success, I think you could say it probably came at a political cost but it was definitely in the state’s best interest.
Trib+Water: What role do you see for water law firms and their effect on the public policy process on water?
Rochelle: Water lawyers represent the whole marketplace of folks. City and regional water districts and river authorities are tasked with providing critical water supplies to their constituencies. Those are entities that by and large operate outside of a profit motive. They have a charge to protect the public good and I think that many of them do that. The lawyers that represent those entities, I think, are, of course, looking out for the best interests of those clients but they do have a mantle or a charge to do what’s in the public good.
And then there’s, of course, a whole slew of other consultants, including lawyers, that ably and appropriately and fairly represent the private marketplace that perhaps is trying to make a profit off of a natural resource like water. There’s nothing immoral or fattening about it but there’s a different mindset, I think, that comes to it.
All of us in the arena are challenged with very complicated and complex state and federal laws. And that’s appropriate. I don’t think any of us are asking for a check three days after you file an application. It’s a very daunting process to address the environmental impacts of a project, the water rights impacts of a project, the public welfare perspective on projects. … And doing that in a timely and cost efficient way is sometimes very challenging.