Thursday, May 28, 2015

Rep. Mary Gonzalez and the Right of Capture

A reader alerted me to a story in the El Paso Times yesterday. There was a follow-up story today. In a nutshell, the people of Hays County, Texas (which has been in the news the past few days for devastating floods and loss of life) want to extend Barton Springs/Edwards Aquifer Conservation District to the unregulated part of Hays County. They are concerned about Houston-based Electro Purification sinking commercial wells to serve several large customers. Hays County folks want to protect their water and so HB 3405 has sailed through the Texas legislature until Gonzalez stopped it on proceedural grounds. 

Be sure to read the Texas Tribune's story: Wimberley Groundwater Protection Faces Challenge from El Paso Democrat.

Texas District 75
So why is Rep. Gonzalez so adamant about sinking HB 3405? She contends that it will set a bad precedent for rural Texans afterall her 75th District composes the eastern part of El Paso County including the farm-rich lower valley. But that just doesn't make sense. HB 3405 passed the Texas House by 126-15. You can be sure that there were a number of Representatives who voted "aye" who come from rural districts. So, again, why is Mary on a mission?

It may have something to do with farmers in the El Paso lower valley but only partially. They control the powerful and unaccountable El Paso County Water District #1. The Water District's office is in Clint, part of the 75th District. John Fleck, the best water blogger in the West, reported just today that water from Elephant Butte is again running south but that this is the third year in a row that water has not been released until May and it is almost June.

However, "Bloody" Mary Gonzalez may want to kill the bill for the sake of other interests as well. In his blog post yesterday, Max Powers points the finger at Woody Hunt who, Powers believes, has an interest in Electro Purification. The Hunts deny that. 

I'm only guessing but I think that what is behind Rep. Gonzalez's objection to HB 3405 has everything to do with the Rule/Right of Capture in the State of Texas. Think of it this way. We all live on top of a big lake. You own a little piece on one side of the lake and I own a piece on the other side. I stick a straw in the lake and begin drawing water. Right of Capture allows me to suck-up every last drop in the lake even that which is right beneath your rubber ducky. 

Certainly lower valley farmers who are drawing less and less water from the Rio Grande have to depend on wells. But so do others.

The El Paso Water Utilities also must depend more on underground water. Although their first attempt was unsuccessful, they continue to drill near Fort Hancock, Texas which is in Hudspeth County. Hudspeth County has a water conservation district. If people in Hays County can protect their water from Electro Purification, can people in Hudspeth protect their water from the EPWU?

At a recent meeting a representative of the EPWU became visibly upset when someone wanted to discuss having a water conservation district in El Paso County. The representative could give no reason opposing such a district and only said that he and the other person would have to agree to disagree. What's the fear? 

But the EPWU is not the only entity drilling in Hudspeth. Sure Hunt has water rights around Dell City; but Esperanza Water Service Co. Inc., a Jobe privately-owned company that supplies water in East El Paso County as well as in Hudspeth drills in Hudspeth County as well. Billie Jobe is the President. 

The Hueco Bolson
The real threat seems to be the precedent that a county's water conservation district can regulate how much water others can draw from its underground "lake" or even if they can draw water at all. I'm speculating that Rep. Gonzalez has heard not just from valley farmers (who may be the smallest players in this game) but from the EPWU and from Jobe and possibly Hunt. It's that big underground lake known as the Hueco Bolson that lies below most of El Paso County, about half of Hudspeth County not to mention New Mexico and Mexico. Those who have straws in the lake are thirsty.

One last question - a legal one: does Right of Capture begin when someone buys a piece of land above the "lake" - a vested right - or does it only begin when someone drills a well on their land? That's a current argument in the State of Texas. But what it means is this. EPWU, Esperanza, etc. are not so much concerned about existing wells but future wells as well.


  1. As a Hays Countian who has followed this issue closely, I went into Rep. Gonzalez's office to discuss her concerns regarding HB 3405. She avoided my questions and pawned me off on her Legislative Director who she said was very familiar with the issue.

    Rep Gonzalez's legislative director did NOT know what a Groundwater Conservation District is. She also didn't know if the district they serve (El Paso) has a groundwater conservation district or is in one.

    As far as the concerns she's stated in interviews -- they make NO sense.

    Also, someone should ask her HOW this local bill would set a precedence and hurt the rural farmers in her area -- this statement alone shows she DOES NOT understand what this bill does.

  2. Some good, insightful writing here, Jim. And as thick of a wishy-washy subject as you'll probably find, too! I think who owns Texas waters eventually will be decided in Washington. The issue is too hot for Texas legislators! The groundwater conservation districts were a sop to critics rightfully claiming the absurdity of rule of capture. But my understanding of this mess is that Texas rule of capture trumps groundwater districts. Thus it's a Yogi 'it-aint-over-'til-it's-over' situation. My guess is Rep. Gonzalez was trying her best to tread dicey political waters; and got off into a risky current that -- like most "tragedy of the commons" efforts in Texas -- got her in trouble! Until someone from Washington shooting silver bullets shows up, my money's on those with giant straws.