With each issue, Trib+Water brings you an interview with experts on water-related issues. Here is this week's subject:
Ashleigh Acevedo is an attorney at Lloyd Gosselink Rochelle & Townsend, P.C., who focuses on water quality, water rights and water utility law. Acevedo and her colleague, Brad Castleberry, have published an article in the Texas Water Journal that compares surface water interbasin transfer policy in Texas to other western states.
Editor's note: This interview has been edited for length and clarity.
Trib+Water: Why are interbasin transfers of water important?
Ashleigh Acevedo: Our firm represents a lot of water suppliers. As a water supplier, you have to be concerned about the availability of water and how you will allocate it to customers. From a big picture perspective, it’s about getting water to the places where it’s needed.
Texas doesn’t have the luxury of having major sources of water supplies where we have major population centers. Sometimes that requires creativity in how you’re going to manage what sources are available to which places.
An interbasin transfer, at its most basic level, is the transfer of water from one river basin to another. The general idea is that you take water from an area of the state that is water-rich and move it to an area that doesn’t have that same kind of flexibility and maybe needs more water.
Trib+Water: Can you speak to the legal challenges of these transfers in Texas?
Acevedo: The whole reason we wanted to evaluate the interbasin transfer statute in Texas was to get an idea of how Texas balances this water management tool with the equity to the basin of origin — where the water is coming from. We wanted to see where Texas is compared to other states. How well do we do in making sure that we protect the basin of origin and those folks there but also use the tools we have available to us to the extent that we can?
Trib+Water: What were your findings about Texas in comparison to other states?
Acevedo: We wanted to provide a context for our regulatory framework for interbasin transfers. We did a laborious survey of other western states that have similar water rights programs to Texas and evaluated it for patterns or common elements to use as benchmarks for the state.
We looked at variations of how you could regulate interbasin transfers and the degree of protection that was provided to the basin of origin and how easily you can get an interbasin transfer. The idea was to see where Texas falls on that spectrum. Ultimately, the hope is to help policymakers if they ever wanted to reevaluate Texas’ interbasin transfer laws.
Of the eight states we compared it to, Texas has fairly stringent laws and that goes back to 1997 when the interbasin transfer statute went through a whole revision with Senate Bill 1. The impetus for us to start looking at other states on this issue was after the 2015 legislative session. There was some bill movement that made interbasin transfers more difficult.
In the last couple of decades, there’s been progress towards more regulation and stringency in the requirements for interbasin transfers, so we were curious about whether we are on par with other states: is our law too strict or not strict enough? By strict, I mean whether the framework we have encourages people to get interbasin transfer permits or not. If it’s stricter, there are more requirements to get them and more factors to be considered.
Trib+Water: Walk me through your findings and biggest takeaways from this article.
Acevedo: The structure of the article overall is broken down into these nine common elements we see across interbasin transfer law in the western states. Within each of those elements, we do an evaluation of where Texas falls on each of them.
The biggest takeaway is that in Texas we have an interbasin transfer law that, at least compared to these other states, is relatively strict. We have a lot of requirements and some of those requirements are a disincentive to getting an interbasin transfer.
But it’s not the most restrictive overall. Some states take it even further. Some states don’t go nearly as far. That’s to be expected. Each state has different water supply issues. You have places like New Mexico and Nevada and Arizona that’s mostly desert. But then you have Colorado and Oregon that get to consider their spring snowmelt. Some of these even consider groundwater, which isn’t something Texas does.
There’s a lot of variation, which makes it a tricky comparison but at the same time it’s good because, like in Texas, we have a diverse landscape and water supply. Looking at the bigger picture of how you get water where it’s needed is important.
Trib+Water: Are stricter regulations usually in place to protect the water source?
Acevedo: It’s not necessarily about conservation. It’s more an issue of equity. How can you move water but still be fair to the folks who live where it’s coming from?
When you’re moving water you also have environmental concerns. What impacts are you having on the basin of origin and the receiving basins? You have to strike the perfect balance.
Trib+Water: What haven’t I asked you that’s important to know?
Acevedo: If we’re going to reevaluate the Texas statute, we’ve identified these nine factors that commonly occur across the western United States. We have these examples to guide those decisions. The biggest purpose of this article is that we’ve done the research to give you a real-life comparison: what the variations of an interbasin statute could look like and how it’s working and what we might be able to adopt here.
The article doesn’t intend to advocate for any change, one way or the other. We want to say, look, other states are doing this and here’s how we compare.
If stakeholders and policymakers were to reevaluate the Texas interbasin regulatory framework, we’ve done the research to show what it might look like if you were to change it and how other states have struck that balance.