TWCA Annual Convention 2018

1. TEXAS WATER LAW
CAN (CHANGES IN) POLICY SAVE US
March 7-9, 2018
Russell S. Johnson
TWCA 74th Annual Convention

2. Introduction
•Demand will increase
•New water is expensive
•Changes in water policy can substantially
lower cost of meeting future demand
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3. Surface Water Law and Policy
•System followed by
most western states
•Emphasizes: age of use
– insuring use
•Fails to consider 21st
century reality
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4. Change #1:
Modify First in Time is First in Right
•Current law fails to consider
importance or use or economic
value of use
•Curtailments of rights should result
in compensation
•Costs borne by higher value users
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5. Change #2:
Change Use It or Lose It
•Current law provides for cancellation for non-use
•Conservation discouraged: no benefit to conserver
•Keep cancellation for non-use
•Allow conserved water to be marketed
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6. Change #3:
Remove Impediments to Marketability of Rights
•Predictable process
•Predictable time to obtain
•Predictable modifications to
transferred permits
•Allows market to reallocate
water
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7. Change #4:
Simplify Permitting for Diversion of Flood Waters Into
Enhanced Recharge/ASR Projects
•Current process focuses on use of normal flows
•No adverse impact if flood flows diverted
•Storage in non-evaporating location
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8. Change #5:
Authorize GCD’s to Administer/Implement
Mitigation of Adverse Impacts Programs
•All existing users fund through mitigation fees
•Allows development if impacts addressed
•Eliminates managing to eliminate adverse impacts –
requires historic users to contribute to reduce their
impacts
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9. Change #6:
Historic Use Protection Should Not Be Forever
•Currently historic users can violate fair share
doctrine
•Currently districts authorize historic use perpetually
•Ultimately all users should be treated equally
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10. Change #7:
Limits on Production Should Be Based Upon Goals
Other Than Desired Future Conditions
•Process is reverse engineered
•DFC’s set to protect historic use and prevent large
scale development
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11. Change #8:
Utility Service Area Should Equal Acreage Fair Share
•Utility serving an area should be encouraged
•Displaces need for individual wells
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12. Change #9:
Regulation by Aquifer and Not By District Boundaries
•Landowners subject to
different authorization –
even though aquifer is
the same
•Aquifer boundaries
rarely follow district
boundaries
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13. Change #10:
Requirement for Export Permit Should be Eliminated
•Use is what matters – not where it is used
•Barrier to moving water from where it is to where it
is needed
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•Water follows
economic
development –
economic
development does
not follow water

14. Change #11:
Retail Water Rates Should Not Be
Restricted to Cost of Service
•Value of water is missing in rate setting
•Low water rates discourage conservation
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15. Change #12:
Rates Should Discourage Discretionary Use
•Inverted block rates are implemented
by most utilities
•This authority should be expanded
•Discretionary use should subsidize
human needs use
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16. Contact Information
RUSSELL S. JOHNSON
MCGINNIS LOCHRIDGE LLP
600 Congress Avenue, Ste. 2100
Austin, Texas 78701
(512) 495-6000 Main
(512) 495-3680 Direct
rjohnson@mcginnislaw.com
www.mcginnislaw.com
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