Confluence www.twca.org

1. June 2012
Popular Venue Draws A Crowd for
Texas Water
TWCA June Meeting in Horseshoe Bay
TWCA members will be travelling from all over the state to the
Conservation Association
popular Horseshoe Bay Resort in the Texas Hill Country. There’s a full
221 E. 9th Street, Ste. 206 agenda planned for the event, kicked off by the 6th Annual Jim Adams
Austin, Texas 78701-2510 Memorial Golf Tournament on the Ram Rock Course Wednesday after-
512-472-7216 noon, with a 1:00 pm tee off. The TWCA/RMF reception will begin at
Fax: 512-472-0537 5:30 pm. (Visit the website--www.twca.org -- for the latest agenda.)
http://www.twca.org Beginning in the morning on Thursday, the panels will all meet
between 9 am and noon, with the General Session kicking off at 1 pm
with remarks by the Mayor of Horseshoe Bay, Robert Lambert. Par-
Officers
ticipants will have the opportunity to hear from the Chairman of the
Luana Buckner, Senate Natural Resources Committee, Sen. Troy Fraser; from TCEQ
President Chair Bryan Shaw, PhD; and from Melanie Callahan, Executive
Administrator, TWDB. Rounding out the session -- prior to the Board of
Phillip J. Ford, Directors meeting -- is Carlos Peña, Principal Engineer, United States
President-Elect Section of the International Boundary & Water Commission. Critical top-
ics, such as a national perspective on water issues, water conservation,
James M. Parks, and the Lake Granbury study, complete the afternoon’s discussions.
Immediate Past President Back by popular demand is a Reception and Dance, featuring
Cactus Country Band that will surely set your toes a’tapping. The
festivities begin at 6:30 in Salons ABCD.
Association Staff Off to an early start on Friday morning with opening remarks by
Leroy Goodson Burnet County Judge, Donna Klaeger. Reuse will be one of the hot
General Manager topics for the morning, along with remarks by Brigadier General Thomas
e-mail: lgoodson@twca.org W. Kula, U.S. Army Corps of Engineers. Robert Mace will be on hand
to explain that the “Drought Ain’t Over ‘til it’s Over”. Developments in
Dean Robbins groundwater hydrology and a review of the endangered species act close
out the program.
Assistant General Manager
According to General Manager Leroy Goodson, “We are look-
drobbins@twca.org ing forward to hearing from this distinguished group of speakers and to
the fellowship these meetings provide.”
Opinions expressed in
Confluence are those of the
writer and not necessarily
those of TWCA, its officers,
directors or staff.
© 2012, TWCA
FRASER SHAW CALLAHAN MACE
1

2. President’s Message...
Changing of the Guard
but not the Mission
James M. Parks Luana Buckner
As one steps down, another steps up. Over In closing, I want to thank everyone associated with
the past year, it has been my pleasure and honor TWCA for making this last year so memorable for
to serve as President of TWCA. I find it difficult to me. Now, please join me in pledging our support
put into words what this experience has meant to and offering congratulations to Luana Buckner as
me. There are no finer people to have your name she begins her role as President of TWCA.
forever associated with than those who make up the
membership. Water providers are seldom appreciated
by the millions that we serve and if not for the TWCA,
most of us would spend our entire careers without First, my sincere thanks and appreciation to
recognition for the hard work and sacrifice that each Jim Parks for his leadership of TWCA during a very
of us make each day. Thank you, TWCA. difficult and dry year. I hope you will join me in hoping
Texas is going to continue to grow both that we’ll be able to put the drought behind us in the
economically and in population. Additional coming months during my tenure as President.
supplies of water are critically needed but will not I am honored and thankful for this opportunity
come easily. It is incumbent on all of us to remain to give a little back to a great organization that has given
engaged and committed to the implementation of so much to me, personally and professionally.
the State Water Plan, which has been thoughtfully I ask for your help and support to keep this
and carefully developed over the past 15 years. TWCA train on its tracks with full knowledge that I
The Plan is not perfect and can certainly be may be in the conductors chair but Leroy and Dean
improved upon through the reoccurring planning are in the caboose manning the brakes.
cycles. There will always be challenges and
obstacles to overcome so I encourage you to
stay involved and engaged in the process.
2

3. That “Freddy Krueger” is a mighty fine Steer!
Left to right: Leroy Goodson; Colby Goodson; Macie Goodson; Bobby Maddox, Bonham Cattle Co.;
Dan Hoge, judge; Kyla Goodson; Judene Goodson; Lisa Goodson; Stanley Hoffman; Mildred Hoffman;
Kannon Acker Goodson; Kandra Goodson; Kati Robinson; and Mandi Maddox, Bonham Cattle Co.
On Friday the 13th, when Kannon Acker Goodson acquired a steer to raise for the Houston Live-
stock Show and Rodeo, he figured that Freddy Krueger would be an appropriate name for the anmial
-- after the horror movie bad guy. As the animal continued to grow, Kannon -- a member of the Canyon
High School FFA -- knew he he had something special on his hands. According to family members, the
young teen worked “diligently and enthusiastically” doing all the hard work necessary to raise the steer.
It wasn’t Kannon’s first rodeo -- he had been exhibiting cattle for the past five years at the presti-
gious Houston Livestock Show and Rodeo. The difference was that this year, his steer won the Grand
Champion Junior Market Steer at the Houston event. If that honor weren’t enough, the animal was
purchased at auction for $460,000 -- the highest bid in more than a decade! Show judge Dan Hoge slapped
the steer on the haunches and said it was, “near perfect”. The crowd roared its approval!
Kannon -- just 15 -- said it was a “once in a lifetime moment”. “I was nervous but confident,” he
explained. Kannon had devoted countless hours to working with the splendid Charolais steer. “I had to
make sure he was comfortable with me and okay in crowds of people
and animals. There’s always a goat, pig or dog around, so he got used
to them, too.”
The young man said that he’s proud his hard work paid off,
and acknowledged that, “It feels great to be champion.” He has new
animals now, and will be out on the Texas Livestock Show circuit
during the summer, and San Antonio, Fort Worth, Austin, and San
Angelo during the winter. Kannon credits the support of his family
for this success. “It’s something we do as a family and it means the
world to me!” Congratulations Kannon!
3

4. Although he was unable to be TWCA’s Confluence Newsletter
with us at the TWCA gratefully acknowledges the
68th Annual Meeting in Dallas, 2012 Sponsors who make this
the conference was dedicated to communication among members
possible...
State Representative
ALLAN B. RITTER PLATINUM
Chair, House Committee on AECOM
Natural Resources Angelina & Neches River Authority
Freese and Nichols, Inc.
Lloyd Gosselink Rochelle & Townsend, P. C.
North Texas Municipal Water District
SAIC Energy, Environment & Infrastructure LLC
San Antonio River Authority
Tarrant Regional Water District
GOLD
Brazoria Drainage District No. 4
Brown & Gay Engineers, Inc.
Chambers-Liberty Counties Navigation District
Colorado River Municipal Water District
Guadalupe-Blanco River Authority
Gulf Coast Waste Disposal Authority
In recognition of his untiring efforts Harlingen Irrigation District Cameron County #1
for the betterment of water resources Jefferson County Drainage District #6
Lavaca-Navidad River Authority
in the State of Texas. Lower Neches Valley Authority
North Harris County Regional Water Authority
Northeast Texas Municipal Water District
Sabine River Authority of Texas
San Jacinto River Authority
Titus County Fresh Water Supply District #1
TWCA Risk Management Fund
Upper Neches River Municipal Water Authority
SILVER
Barton Springs/Edwards Aquifer
Conservation District
Cameron County Drainage District #1
Canadian River Municipal Water Authority
Evergreen Underground Water Conservation District
Franklin County Water District
J. Stowe & Co., LLC
K. Friese & Associates, Inc.
BRONZE
Bell Engineers and Consulting, Inc.
Brazoria County Groundwater Conservation District
John E. Burke & Associates LLC
Kimley-Horn and Associates, Inc.
Klotz Associates, Inc.
Plum Creek Conservation District
Texas Water Foundation, Inc.
4

5. Takings Litigation Against
the Edwards Aquifer
Authority After the
Day Case
by Andrew S. “Drew” Miller
I. Introduction
In February 2012, the Texas Supreme Court
issued its landmark decision in Edwards Aquifer
Authority v. Day. In that case, and for the first time,
the Texas Supreme Court has held that landowners with surface water. Later, Day sought an initial
have a property interest in groundwater prior to regular permit (“IRP”) from the EAA pursuant to
capture that may be the subject of a regulatory the Edwards Aquifer Authority Act (“EAA Act”)
takings claim. The obvious and immediate result (Act of May 30, 1993, 73rd Leg., R.S., ch. 626,
of the Day decision is that landowners may assert 1993 Tex. Gen. Laws 2350, as amended), based
regulatory takings claims against the Edwards on his predecessors’ use of Edwards groundwater
Aquifer Authority (“EAA”), Chapter 36 groundwater from the well during the Act’s statutorily-mandated
conservation districts, and other governmental historic period. Following a contested case hearing
entities in response to regulation that limits or in which Day was able to show that his predecessor
prohibits access to, or production of, groundwater. irrigated only seven acres with Edwards groundwater
Whether and to what extent such claims will succeed during the historic period, the EAA issued an IRP
under the facts of each case, including the situation to Day with a withdrawal amount of 14 acre-feet
of the particular claimant and the nature of the (“AF”) per year. Under the terms of the EAA Act,
regulation at issue, is much less clear. Day was entitled to an IRP for 14 AF based on the
In its Day decision, the Court did not hold number of acres of land that he was able to show
that a compensable taking of Day’s property had had been irrigated with Edwards groundwater.
occurred but, rather, remanded that question to the Day filed a lawsuit against the EAA challenging
trial court for a determination of the merits of Day’s the validity of the EAA’s decision to grant a permit
takings claim. In the wake of the Day decision, to Day for only 14 AF per year, alleging numerous
attention has been turned to the EAA’s remaining errors. The lawsuit also included a claim that the
defenses to, and the merits of, Day’s takings claim,
and to other takings claims that are pending and
which are being threatened against the EAA. This
article summarizes the Day case, and examines
the issues on remand in that case as well as other
pending takings litigation against the EAA.
II. Edwards Aquifer Authority v. Day
Background
In 1994, Burrell Day and Joel McDaniel
(collectively, “Day”) purchased property in Bexar
County upon which existed an uncontrolled, flowing,
dilapidated Edwards Aquifer well with a collapsed
casing and no pump. Water from the well flowed
into a ditch and thereafter into a lake, which was
fed by an intermittent creek, where it comingled Day & McDaniel’s well – September 2004 (from EAA files)
5

6. Day Case... to Day. The Court ultimately remands the issue of
whether Day has suffered a compensable taking as a
Continued result of the application of the EAA Act’s regulatory
EAA’s permit decision amounted to a regulatory scheme to the trial court for further consideration
taking of Day’s vested ownership rights to the Edwards and decision.
groundwater under his property therefore entitling Motion for Rehearing
Day to compensation. On the question of the validity In April, the EAA filed a motion for rehearing
of the EAA’s permit decision, the Texas Supreme which: (1) asks the court to narrow its focus to
Court held that the decision is valid and supported Edwards groundwater and hold that any interest
by evidence in the record before the agency. held by landowners in Edwards groundwater within
The trial court had granted summary the jurisdiction of the EAA beneath their property
judgment in favor of the EAA on Day’s regulatory may not be the subject of a regulatory takings claim;
takings claim on the ground that Day had no and (2) argues that the discussion in Part IV of the
vested right to groundwater beneath his property Court’s opinion – related to whether the EAA Act’s
prior to capture. The Court of Appeals reversed regulatory scheme as applied to Day has resulted
on that issue, holding that Day has a vested right in a compensable taking – concerns issues that
and remanded the case to the trial court for further were not raised, briefed, or factually developed,
proceedings on the merits of Day’s takings claim. are not properly before the Texas Supreme Court
Both sides sought and were granted review by the for decision and is unnecessary dicta, and therefore
Texas Supreme Court. should be deleted from the opinion. As of this
The Texas Supreme Court’s Holding writing, the EAA’s motion for rehearing remains
The Texas Supreme Court addressed the pending.
vested rights issue – i.e., whether Day has a property Likely Issues on Remand
interest in groundwater prior to capture entitled to The Texas Supreme Court remanded the Day
protection under the takings clause of the Texas case so that the trial court could address Day’s takings
Constitution. The Court repeatedly emphasized claim on its merits and thus determine whether the
that it had never before ruled on this question. legislatively-mandated Edwards permitting process,
The Court then declared that the common law of as applied to Day, deprives Day of his Edwards
ownership of oil and gas applies to groundwater. groundwater and constitutes a compensable taking.
Under that law, oil and gas (and now groundwater) The Court discussed the standards and legal tests
are owned in place. They are considered a part of applicable to making such a determination and, in
the realty, and the landowner is regarded as having particular, the three-factor balancing test set forth
absolute title to these substances, which each by the United States Supreme Court in its 1978
landowner owns privately, separately, distinctly, and decision in the Penn Central Transportation
exclusively, as a result of his proprietorship of the Company v. New York City case – the “Penn
land. A landowner’s right in these substances prior Central” factors. The three Penn Central factors
to capture is entitled to protection under the takings to be looked at have been succinctly restated as:
clause of the Texas Constitution, and therefore may (1) he economic impact of the regulation on
t
be the subject of regulatory takings claim. the claimant;
The Texas Supreme Court’s Discussion in Part IV (2) he extent to which the regulation has
t
of its Opinion: Whether the EAA Act’s Regulatory interfered with reasonable investment
Scheme Results in a Compensable Taking as to Day backed expectations; and
In Part IV of its opinion, the Court discusses, (3) the character of the governmental action.
at some length, the application of the standards In the remanded proceeding, the EAA will
and legal tests used by courts to determine whether advance at least one complete defense to takings
a compensable taking has occurred (including the liability: that the EAA is not liable for a regulatory
three-factor Penn Central balancing test) and how taking of Day’s property because its actions with
these tests and factors might play-out with respect respect to Day’s permit application were mandated
6

7. by the EAA Act. Therefore, regulatory takings D’Hanis and Home Place orchards. The Braggs
liability, if any, properly lies with the State of Texas ask on appeal that the district court’s judgment be
and not the EAA. In addition, the EAA will present modified to correct (by increasing) the amount of
evidence and legal arguments to support a decision just compensation to which the Braggs are entitled.
that the EAA is not liable for a taking of Day’s The Braggs argue that the district court was required
property upon the court’s application and analysis to value the Braggs’ groundwater rights separate
of the Penn Central factors. from the land and failed to do so, and committed
III. Edwards Aquifer Authority v. Bragg other valuation and calculation errors. The Braggs
The Braggs, pecan farmers in Medina County, also argue that they have suffered a categorical or
applied for two IRPs from the EAA for Edwards per se taking of their property (eliminating the need
wells on each of their two orchards. The EAA for a Penn Central analysis) because (1) Edwards
denied the Braggs’ permit application for the well regulation preventing them from withdrawing
on their D’Hanis orchard, which had no historical sufficient water denies them all economically viable
use as it was drilled after the EAA Act was passed use of their lands, and (2) the EAA’s actions on their
and after the close of the legislatively-mandated permit applications constitute physical takings of
historic period. The EAA granted the Braggs’ their groundwater. 
permit application for the well on their Home Place
orchard, but for an amount based on the number of Drew Miller is the
acres irrigated during the historical period, which is 2012-2013 TWCA
less than the Braggs indicated they need to water Water Laws Committee
Chair and a partner
their mature pecan trees. The EAA’s actions on
at the Austin office
both of these permit applications were mandated
of Kemp Smith LLP
by the EAA Act.
where he serves
In 2011, the trial court in Medina County
as the chair of his
issued a judgment holding that the Braggs suffered
firm’s Environmental,
a regulatory taking of both of their orchards under
Adminis-trative and
the Penn Central analysis, and are entitled to
Public Law Department. Drew represents
about $135,000 in compensation with respect public and private entity clients across Texas
to the D’Hanis orchard and about $598,000 in in the areas of water and environmental
compensation with respect to the Home Place law, emphasizing groundwater regulation
orchard. and issues involving contaminated property.
This case is currently on appeal to the Fourth He serves as counsel for the Edwards
Court of Appeals in San Antonio. The EAA argues Aquifer Authority in the Day case and in
on appeal that the trial court’s judgment should be other matters. If you would like additional
reversed because, among other reasons: (1) the EAA information or have questions related to this
is not liable for a taking because its actions on the article or other matters, please contact Drew
Braggs’ permit applications were mandated by the at 512-320-5466 or dmiller@kempsmith.
State of Texas; (2) the applicable statute of limitations com.
bars the Braggs’ takings claims; (3) the EAA Act MARK YOUR
increased the value of the Home Place orchard CALENDARS...
so no compensation is owed; (4) the trial court TWCA FALL MEETING
improperly determined the adequate compensation October 24-26, 2012
owed for a taking of the D’Hanis orchard; and The Crowne Plaza
(5) the trial court improperly determined that the Riverwalk Hotel
Act and its implementation caused a taking of the San Antonio, TX
7

8. 2011 Drought --
Lake Conroe Chapter
by Reed Eichelberger and Jace Houston
San Jacinto River Authority
Writing an article about the recent Texas
drought in the Confluence newsletter isn’t like
preaching to the choir, it’s more like preaching
to a group of seminary professors. What can we
possibly say about this drought that hasn’t already
been said or lived by everyone in the water industry?
Perhaps not much, but over the past year, we gained
valuable insights by hearing the various stories of
how the drought impacted different organizations
and individuals in TWCA, so we offer the following
as the San Jacinto River Authority’s chapter in the
ongoing story of the 2011 drought.
You’ll find that many of the themes from our
Photo by Don Sarich
story are familiar. We faced similar challenges to
those experienced in other parts of the state – testing
the reliability of our water rights; attempting to
educate the public about how water supply reservoirs
and water rights work; and dealing with the hue
and cry of lake-area residents and business owners
as water levels declined and fears of the unknown Figure 2 shows how Lake Conroe’s water level
increased. fared through the drought. As previously mentioned,
But we also had some unique challenges and the drought started in early 2010 in Montgomery
interesting storylines that will hopefully make our County. The last time Lake Conroe was at full pool
chapter in this story…not dry reading! elevation was in April of 2010. After a complete
How the Drought Unfolded lack of winter and spring rains in 2011, the lake
in Montgomery County level began to fall steadily throughout the summer
As Figure 1 (below) demonstrates, East Texas as evaporation rates exceeded 150 million gallons
got a head start on the drought. Starting basically in per day and inflows into the lake were essentially
January 2010, Lake Conroe began receiving below- negligible (right).
normal rainfall and experienced a steady decline in Like most lakes that have a lot of lakefront
reservoir elevation that didn’t begin to take a positive residential development and recreational use,
turn until January 2012. Lake Conroe has a “happy zone.” Whenever
If you scroll through a “time lapse” collection the lake is within about three feet of normal pool
of the U.S. Drought Monitors from January 2010 elevation (which for Lake Conroe has been the
through May of 2012 (which you can do at http:// case approximately 95 percent of the time since
www.sjra.net/drought/index.php), you’ll see the the lake was constructed in 1973), most of the
early stages of the drought beginning in East Texas, people within our community are satisfied. In
and find that the drought still hasn’t let up in West fact, Lake Conroe has only dropped below this
Texas. happy zone five times in the past 39 years.
Figure 1. U.S. Drought Monitor for Lake Conroe left the happy zone in about
May 2010 shows early signs of the 2011 drought May of 2011, surpassed its previous record low
beginning to settle into East Texas and Louisiana level in September, and finally bottomed out at
(right). approximately 8.4 feet low in December.
8

9. Of course, Lake Conroe
wasn’t the only lake in our region
that was impacted by the drought.
On August 15, 2011, the City of
Houston called for the release of
some of its water that it owns in Lake
Conroe. This was only the second
time in the history of Lake Conroe
that Houston had called for the
release of water from the Lake. The
release started at 50 million gallons
per day, but ramped up to 165 million
gallons per day through most of
September, October, and November.
The release was finally suspended
on November 30, 2011, when
much-welcomed rains in the Lake
Houston watershed restored Lake
Houston to near-normal levels.
Figure 1. U.S. Drought Monitor for May 2010 Lake Conroe’s conservation
capacity is approximately 416,000
acre-feet. This month (May
2012), Lake Conroe’s storage is
at approximately 370,000 acre-
feet, or 90 percent. When the lake
reached its lowest point in December
2011, reservoir storage was at
approximately 280,000 acre-feet, or
70 percent.
Fear of the Unknown
Numerous times during the fall
of 2011, we received calls from print
and television reporters looking for
a doom and gloom report about the
drought’s effects on Lake Conroe.
“Are we about to run out of water?”
“Are we on the brink of a water
Figure 2. Water level in Lake Conroe from March 2010 to present. supply disaster?” “How many days
of water supply do we have left?”
Over and over, we would
explain the facts to these surprised
reporters, which was that we had
many years of water supply still
available in Montgomery County. We
would explain how all of the municipal
water demand in Montgomery County
is still met using groundwater and
how there is actually very little water
being used from Lake Conroe. Even
with the City of Houston beginning
9

10. to use a portion of its share of the lake, there is still people’s fears. Despite studies that showed how
a lot of supply available. the lake reacts to rainfall cycles, despite historic data
But eventually the questions would come showing that Lake Conroe spills about seven feet of
around to lake level. “But isn’t the falling lake water per year on average, despite past experience
level causing a lot of concern among residents, demonstrating how quickly the lake could rebound;
businesses, and community leaders around the lake?” all of these efforts seemed to do little to calm the
Absolutely. Concern about how long the drought public’s concerns. We even directed their attention
will last. Concern about whether or how long it will to other lakes in the State that have historically
take Lake Conroe to ever recover. Concern about fluctuated much more than Lake Conroe and still
how property values and local businesses may be have healthy businesses and home values. This did
impacted. little to assuage their concerns.
The basic problem is illustrated in the photos A Perfect Storm Becomes
below. Even though Lake Conroe is first and a Perfect Opportunity
foremost a water supply reservoir, it has become So what else could you add to the drought
a major residential, commercial, and recreational to create an even more perfect storm of public
venue. Approximately two-thirds of its 140-mile relations challenges? How about starting a project
shoreline has been developed. There are over to build a $500 million dollar water treatment
4,000 residential docks and a dozen marinas on plant to begin taking water out of Lake Conroe
the lake. All of these residents and businesses have for the first time for public water supply? So now
come to expect, and rely upon, a fairly constant in addition to plummeting lake levels, residents
lake level. In fact, many homes were sold in the in the county are beginning to pay an additional
early days of Lake Conroe with the erroneous fee on their water bills to build a water treatment
promise by unknowing realtors and developers plant to take more water out of the lake.
that Lake Conroe was a constant level lake. Fortunately, this perfect storm has become a
From May to December of 2011, as the perfect opportunity to educate the public about how
drought drove Lake Conroe to record low levels, a a water supply reservoir works. Beginning in January
permeating fear of the unknown created more and of this year, Lake Conroe finally began to receive
more anxiety among residents, business owners, significant rainfall. Water levels have rebounded to
and community leaders. At times it seemed that no within two feet of full pool elevation – back within
amount of data or factual information could calm the happy zone. This has given residents and other
Figure 3. 3-D rendering of SJRA surface water treatment plant that will begin using
approximately 24 million gallons of water from Lake Conroe beginning in 2016.
10

11. interested parties a first-hand opportunity to see how
quickly the lake can rebound with even moderate
rainfall events; even following a record 12-month
drought.
Putting it All in Perspective
During the worst part of the drought, our staff
was fielding numerous calls each day from angry
lake-area residents complaining about not being able
to use their docks or get their boats into the water
from their boat lifts. At one point we finally began
pointing out to them that agricultural losses in Texas
had already exceeded $5 billion. We began pointing
out that there were reservoirs in West Texas with less
than 10 percent storage remaining. We explained
that there were communities in the state that were
down to less than one year of remaining water supply. feed them. And consider the plight of farmers
It’s not that a prolonged drought won’t who had to decide which acreage to irrigate as they
create real economic challenges in Montgomery face the long-term prospect of having to return to
County. It’s just that seeing the bigger picture dry land farming in the Panhandle. The challenge
helps people put their problems in perspective. to all of us is to plan better; to anticipate drought
It is also important to remember that even impacts and prepare for them. Texans don’t give
if our portion of the state has climbed out of the up, even in the wake of a record-setting drought.
drought doldrums for now, we – and everyone Necessity, they say, is the mother of invention…
across the state – will be coping with the economic and we’ve learned from this “time it didn’t
impacts of the drought for years to come. We’ll all
pay the costs of failed crops…of cotton left in the
field because the plants didn’t mature or were too
stunted to harvest…the staggering cost to ranchers
to rebuild cattle herds lost or moved out of state
because of insufficient or cost-prohibitive hay to
Figure 4 shows two photos of the same cove on
Lake Conroe – one taken in November 2011 at
the height of the drought in our area, (above) and
one taken in March 2012 after only three months
of better-than-average rainfall (above right).
11

12. rain.” This is another “teachable moment.” We’re convinced that those of us in the water
The National Drought Mitigation Center industry must continue educating the public about
emphasizes the hydro-illogical cycle that exposes the real impacts of droughts, the real importance of
how people perceive and deal with drought: first long-term water planning, the real value of water,
there’s apathy…so what it if hasn’t rained for and the importance of conserving this precious
a few weeks? Then people start talking about resource. The drought of 2011 drove home the
drought…still no rain…deeper into drought. Folks importance of this educational effort, and in fact,
start to panic. Then, miraculously, it rains! Well, demands a redoubling of our efforts. The public
the drought must be OVER…return to apathy. must understand that much of our great State is still
This perception is nothing new. As Ivan experiencing a serious drought, and that even the
R. Tannehill, a forecaster with what became portions of the State that have experienced some
the United States Weather Bureau, noted in relief are precariously close to slipping back into
“Drought: Its Causes and Effects” in 1947: drought conditions. 
“We welcome the first clear day after a
rainy spell. Rainless days continue for a time and
we are pleased to have a long spell of such fine
weather. It keeps on and we are a little worried.
A few days more and we are really in trouble.
The first rainless day in a spell of fine weather
contributes as much to the drought as the last, but
no one knows how serious it will be until the last
dry day is gone and the rains have come again.” Reed Eichelberger (left) and Jace Houston
San Jacinto River Authority
PROP 2 CAMPAIGN
March TWCA meeting -- Leroy Goodson (left), Gen-
eral Manager of the Texas Water Conservation
Association, presented a Certificate of Apprecia-
tion to Perry Fowler, Assoc. General Contractors
of TX, for his leadership in creating a statewide
education campaign about Proposition 2.
12

13. HONORARY LIFE MEMBERSHIPS
Throughout the years, the Association has awarded Honorary Life Memberships to those individuals who
have contributed above and beyond in their service to the Association and its membership. At the March Annual
Convention Dinner, seven outstanding individuals were presented this award. Presenting the awards, Jim Parks
said, “If we combined all their service years as Directors and participants in TWCA, it would exceed two hundred
years.” Left to right above are: James R. Nichols, Jimmy Banks, Jim Parks, Bruce Rigler, and Richard Bowers.
Juan F. “Frank” Ruiz was also recognized but unable to attend, as were Robert Shirley Wagner. The Wagners
received their Certificate from Leroy Goodson at a water district meeting (above right).
THE PRESIDENT’S AWARDS
At the TWCA’s 68th Annual Convention in Dal-
las, TX in March, Jim Parks (left) presented the The second President’s Award was presented
President’s Award to Brian Sledge, an attorney to Elizabeth (“Liz”) A. Fazio. She currently
and governmental relations consultant with the law serves as Committee Director of the House
firm of Lloyd Gosselink Rochelle Townsend. Committee on Natural Resources. President
Jim Parks made the presentation.
13

14. FEDERAL DEVELOPMENTS..
SEQUESTRATION CALLED “TICKING TIME BOMB”
By J. Tom Ray, Lockwood, Andrews, Newnam, Inc.,
Chair, TWCA Federal Affairs Committee
Having been called a “ticking time bomb”, “a soften it, make the cuts (revenue adjustments) early
sword of Damocles”, and the greatest threat to our or postpone it by changing the dates in the BCA.
national security by none other than the Chairman However, not kicking this legislative mandate down
of the Joint Chiefs of Staff, sequestration (i.e., the road will result in across-the-board budget cuts
statutory mandated spending cuts) is set to explode to non-exempt defense, domestic discretionary and
on the federal budget on January 2, 2013 unless some mandatory or entitlement programs.
Congress and President act to soften or avoid the The numbers are interesting: Congress
mandate. The debacle of the Budget Control Act gives credit for interest ‘savings’, so the $1.2 tril-
of 2011 set up the problem and the consequences, lion in cuts is reduced by 18% to $984 billion.
particularly to our defense budget, are massive. The cuts are evenly divided annually for the next
Recall that the BCA, as it is often referred to, set up nine years, resulting in an annual cut of $109
the “Super-Committee” to define at least $1.2 tril- billion. The annual cut is split evenly between
lion in budget cuts over 10 years, which turned out non-exempt portions of defense and non-defense
to be a politically impossible task. No cuts defined; spending; unless exempt; the cuts are applied
no Congressional action. Therefore, sequestra-
tion will be triggered unless actions are taken to
to both mandatory and discretionary spending.
Taking into account the number of do-
mestic programs that are exempted from seques-
ter and the relative size of the defense budget
versus non-defense discretionary budget, the
sequestration cuts will be 46% of the total de-
fense budget as compared to 27.9% of non-de-
fense and 14.8% of entitlement spending.
The severe cuts, particularly to defense,
are a major concern and Congressional efforts to
14

15. soften or avoid sequestration are coming forward. ments with regard to water resources infrastructure
On May 7th, Chairman Ryan and the House Budget funding and also on the Federal regulatory front.
Committee approved a bill (H.R. 4966) that would, First, both the House and the Senate Energy
among other things, stop the sequestration for and Water FY13 Appropriations bills have been
defense and non-defense discretionary programs, passed out of full Appropriations Committee. It
but leave the sequester for entitlement programs. has been many years since such rapid progress was
However, H.R. 4966 is linked to the Ryan budget made on this bill which funds both the Bureau of
and as a result would cut non-defense discretionary Reclamation and the Corps of Engineers. A group of
spending in 2013 to about the same levels that us recently meet with Roger Cockrell, Staff Director,
will result if sequestration does take place. Senate Subcommittee on Energy and Water Senate
The situation with Congress today is Appropriations. Mr. Cockrell discussed the disap-
that Mr. Ryan’s proposal and any similar ac- pointments of recent appropriations cycles, but was
tions in the House will not be taken up nor actually, at least somewhat, optimistic that the Senate
will they be initiated by the Senate. So, where would pass an EW appropriations bill by October.
does that leave us? Two possible outcomes: (Some basic funding numbers in table below.)
Expect the sword to drop. Unless As you can see, the Senate version of the En-
Congress and President can act in a very limited ergy and Water Appropriations bill is more generous
time available, probably less than six working weeks than the House bill when it comes to water infra-
left in this election year, to deal with sequestra- structure funding. TWCA provided a support letter
tion as well as the Bush tax cuts and debt ceiling, to the Senate Energy and Water Appropriations
we can expect across-the-board cuts to every line Committee for the additional funding in the FY12
item of every federal agency’s budget in the 10% bill and we need to continue this support for FY13.
range (for example, recent conversations with In another piece of good news, Senate En-
Bureau of Reclamation and EPA staff the expec- ergy and Water Appropriators once again added
tation was 10% and 7.8%, respectively); or, $40 million for the Corps of Engineers Environ-
Avoid the issue totally—kick-the-can. mental Infrastructure Construction account. This
Since many economists are saying that if seques- is the section of the Corps budget that funds water
tration occurs, it may throw the nation deeper into resources infrastructure. Although $40 million is
recession, a possible outcome will be that Congress a modest sum when considered in context of total
and President decide to amend the dates in the BCA Federal spending, this add-on would provide for
and push the burden off to another Congress. the continuation of this effort in FY13. Without
Energy Water Appropriations specific support from the Congress, the Corps En-
There have been important recent develop- vironmental Infrastructure Program cannot exist.
15

16. The House version of the FY13 Energy and
Water Appropriations bill also includes an amend-
ment proposed by Representative Rehberg [R:MT],
which was adopted by a vote of 28 to 20 in House
Appropriations and is now a part of the House Bill.
This amendment prohibits the use of Corps FY13
funding to “develop, adopt, implement, administer,
or enforce a change or supplement to the rule dated
November 13, 1986, or guidance documents dated
January 15, 2003, and December 2, 2008 pertain-
ing to the definition of waters under the jurisdiction of
the Federal Water Pollution Control Act.” The Sen-
ate version of the bill has no similar provision.
In addition to this House Appropria-
tions amendment, two authorizing bills have
with Respect to Waters of the United States.”
also been introduced in the Congress which
The chief sponsor is Senator John Barrasso of
would prohibit both USEPA and the Corps of
Wyoming who has been joined by 32 co-sponsors.
Engineers from finalizing the proposed Clean
S.2245 was introduced on March 28, 2012.
Water Act Guidance or of using the Guidance as
The other is a House bill, HR 4965 which
the basis for any decision regarding the scope
was introduced on April 27th by Transportation
of the Federal Water Pollution Control Act.
and Infrastructure Chair John Mica, joined by the
One of these bills is S. 2245, which is titled
full Committee Ranking Democrat Nick Rahall. Its
“To Preserve Existing Rights and Responsibilities
provisions are virtually identical to S. 2245. Expect
lots of action with regard to water resources to be
centered on the FY13 Energy and Water Appro-
priations bill and on the Congressional resistance
to having the Administration finalize the proposed
Guidance with regard to the Clean Water Act.
Whether the Congress ever returns to the
days when Members could request and support
Appropriations funding on behalf of their constitu-
ents, the one certainty is that the day of the “easy
earmark” has passed and is unlikely to return any
time soon.
WIFIA
As severe as the budget deficit and national
debt are, and even with Sequestration looming,
Congress does recognize the importance of water
infrastructure—in the short term to help create
jobs and fight the recession and in the long term
to help sustain the economy and provide for public
health and welfare. At Texas Water Day this year,
the Texas delegation members from both parties
voiced support and agreed, to varying degrees,
16

17. that something should be done to properly define investment. The key concern, and apparently one
earmarks. Clearing the earmark constraint is that is slowing progress on the bill, is whether EPA
certainly a key to the building the next WRDA or the States’ SRF agencies should administer
bill and to federal support for financing the the program. Whereas TWCA, WESTCAS and
Texas water projects in the State Water Plan. other water associations support the State option,
The progress by the Senate Energy and Water others, notably including AWWA, support EPA.
Appropriations subcommittee to pass a spending In April, I visited with TI subcommittee staff
bill, include plus-ups for the Corps of Engineers and in DC about this question. Who will administer the
Bureau of Reclamation, and working with the House program is now the hang-up. Staff sees the points
subcommittee potentially pass out an appropriations on both sides, and it is important for TWCA to
bill by October, in regular order, is encouraging. So continue not only to monitor but also to provide
is the addition of another potential option for water further input to committee on our position. At the
infrastructure financing. Earlier this year, Chairman upcoming Federal Affairs Committee meeting, we
Gibbs of the Transportation Infrastructure will consider more TWCA input on WIFIA. 
Committee introduced Water Infrastructure
Financing and Innovation Act (WIFIA).
Tom Ray, of Lockwood,
At Federal Affairs Committee meeting in
Andrews Newnam, has
February, we discussed WIFIA. There is certainly followed national water is-
a role for a bill that would provide revolving loan sues for more than 20 years.
financing for large projects or combined projects He can be reached at
of $20 million or more. Positive also is removing j-tray@lan-inc.com.
the Private Activity Bond and encouraging private
68th Annual Convention
Dinner Speaker
TX Agriculture Commissioner
Todd Staples
17

18. Hydraulic Fracturing in Texas: Economic Boom
and Looming Water Resource Challenges
by Leonard Dougal, Partner at Jackson Walker L.L.P. 1
The production of oil and natural gas using explosives down-hole, has been in use since the
long-lateral horizontal drilling combined with multi- 1860s.3 Hydraulic fracturing by name is fairly self
stage hydraulic fracturing, also known as “fracking” explanatory. The basic method is that fluids are
or “fracing,” is revolutionizing domestic energy pumped into hydrocarbon producing formations at
production in the United States. In Texas, fracing high pressure, creating fractures which are pathways
is creating enormous economic benefits, but at the to allow more natural gas or oil to escape. The fluid
same time stretching available water resources as used for hydraulic fracturing is typically about 90%
operators move rigs into more arid areas of the water, 9.5% sand or other proppant, and 0.5% other
state to target higher value oil and liquids, such as chemicals.4 The proppant and chemicals increase
found in the Wolfberry Field in the Permian Basin the length of the fractured pathways within the
and the Eagle Ford Shale in South Texas. A recent formation rock and help the hydrocarbons escape
study by the University of Texas at San Antonio through newly created propped fractures and flow to
estimates that in a single year, 2011, the total the wellbore. The chemical composition of the fluids
economic impact of the drilling and production used can vary among operators and locations.
activity in the 20-county Eagle Ford Shale region In Texas, hydraulic fracturing does not occur near
was 25 billion dollars, including supporting more the surface. Depending on the geography of the
than 47,000 full time jobs.2 Despite drilling location, the depth of the target formation
more than sixty years of experience with hydraulic can range from approximately one to two miles.5
fracturing, the recent domestic expansion of oil and This depth is normally far below the base of the
gas development has resulted in new opposition by useable groundwater. For instance, in the Barnett
environmental and community groups, especially Shale in Texas, shale gas is often found at a depth
as drilling moves into urban areas and regions that of 6,500-8,500 feet while useable groundwater is
have not historically benefitted from production generally located at depths shallower than 1,200
activities. Common concerns voiced by opposition feet; likewise in the Haynesville Shale in Louisiana
groups include the volume of water consumed and Texas, the freshwater depth is above 400 feet
in the fracing process, potential contamination while the gas formations are between 10,500 to
of drinking water supplies, adverse impacts to
surface water, and excessive air emissions. In
light of this heightened attention, there has been a
significant increase in regulatory activity related to
fracing at the local, state and federal levels.
This article briefly outlines the
hydraulic fracturing process and availability
of shale gas, the potential impacts to ground
and surface water, and the federal and state
development of new regulations and guidance.
Hydraulic Fracturing Basics
Hydraulic fracturing has been around
for generations. The basic process was first
patented in 1949, but “shooting” a well by blasting
18

19. 13,500 feet.6 At that depth, the well lateral can solely to supply water on the lease for a rig
extend for thousands of feet horizontally, and these that is actively engaged in oil and gas drilling
long laterals are where the multi-stage fracture or exploration operations.8 The scope of this
operations occur. Nearer to the surface, multiple exemption, especially as applied to fracing, is
strings of steel surface casing protect groundwater, subject to debate. The Railroad Commission
including surface casing which is cemented into place asserts that it exempts from permitting on-lease
below the depth of useable groundwater then all the produced water used for fracing. Nevertheless,
way back to the surface. Additional well production currently some groundwater conservation districts
casing is installed at deeper depths, and finally are requiring the operators to pay fees and
production tubing isolates the produced hydrocarbons obtain drilling permits for such water wells.
from contacting the production casing. Risks to Water Quality
Consumption of Water After studying areas of known oil and gas
Multi-stage hydraulic fracturing operations impacts to groundwater (presumably arising from
require large quantities of water. The Bureau of surface spills), in May 2009 the Chairman of the
Economic Geology reports that individual fracing Railroad Commission of Texas concluded that there
operations routinely consume millions of gallons was “not...a single documented contamination
of water.7 In the Eagle Ford it is not unusual for case associated with hydraulic fracturing.” More
a fracing operation to use more than 5,000,000 recently, the U.S Environmental Protection Agency
gallons and some of the larger fracs can consume dismissed its high profile enforcement case against
over 10,000,000 gallons. Securing such large Range Resources, in which the EPA alleged the
quantities of water has posed a challenge to company’s fracing operations in the Barnett
operators in arid areas of Texas, and has created Shale had led to hydrocarbon contamination of
a growing industry of water purveyors. Existing drinking water aquifers.9 The case was especially
holders of surface water rights have been amending notable as EPA’s position was in direct conflict
those rights to add “mining use” to allow the sale of with findings by the Railroad Commission of
such water to oil and gas operations. Tight supplies Texas which, after a full evidentiary hearing,
of water and local concerns about consumption are unanimously found that Range Resources did
causing operators to devote increasing resources to not contribute to the alleged contamination.
reuse of frac fluids. H o w e v e r, c o n t a m i n a t i o n r i s k t o
groundwater does exist. It comes from surface
spills, mishandling of fluids, or the potential
“In the Eagle Ford it failure in the mechanical integrity of the well
is not unusual for a fracing casing or the cement behind the casing.
After fracing is completed, the pressure
operation to use more
decreases within the well and frac fluid flows back to
than 5,000,000 gallons the surface. This is referred to as “flowback.” The
and some of the larger amount of frac fluid recovered varies dramatically
by well, but has been reported to range from 25%
fracs can consume over to 75%; the flowback rate in the first few days
10,000,000 gallons.” can exceed 100,000 gallons per day and then
decreases over time. Flowback can contain high
Oil and gas rigs routinely use groundwater amounts of total dissolved solids (TDS), formation
produced from the well-site for drilling operations. hydrocarbons, salts and other contaminants that
The Water Code provides an exemption from need to be managed with care. Flowback and
permitting for the drilling of a water well used produced water are typically held in on-site storage
19

20. tanks or water impoundment pits prior to and during resources. The study will analyze and research
treatment, recycling, and disposal. Underground questions involving water acquisition, chemical
injection is the primary method for disposal mixing, well injection, flowback and produced water,
of flowback and produced water in Texas. and wastewater treatment and waste disposal. The
Similar to the risk to groundwater, as long study will also include five retrospective case studies
as the methods of managing flowback are properly (Bakken Shale, North Dakota; Marcellus Shale,
implemented, there is normally very little risk to Pennsylvania (2 locations); Raton Basin, Colorado;
surface water. However, releases, leaks, and/ and the Barnett Shale, Texas) and two prospective
or spills involving the storage or transportation case studies (Marcellus Shale, Pennsylvania and
of wastewater could pose a contamination risk to Haynesville Shale, Louisiana). EPA expects the
shallow aquifers and surface water bodies. initial result of the study to be available in 2012,
Public Disclosure of Content of with a final report released in 2014.
Hydraulic Fracturing Fluids
Recently, one common theme among state
legislatures and regulators is an increased desire for
fracing operators to disclose the chemical ingredients
used in fracing operations. In Texas, the legislature
in 2011 passed a bill mandating the disclosure of
chemical additives to fracing fluids.10 Pursuant to
the legislation, the Railroad Commission of Texas
has adopted regulations which require operators
to disclose information on frac fluids, including
the total volume of water used; each chemical
ingredient added; the trade name and description
of the chemical; and the concentration of each
chemical.11 This information must be filed with the Conclusion
regulatory agency with the well completion reports The economic benefits of hydraulic fracturing
and, significantly, posted online as well. The online in shale plays are an economic game-changer in
postings are found at the website FracFocus.org. many areas of the country. These operations use
The regulations provide protection for trade secret large quantities of water, which create resource
information, consistent with existing state law as set challenges and conflicts in arid areas. New
forth in the Texas Public Information Act. regulations require public disclosure of facing
chemicals, and in response we may well find that oil
and gas operators will voluntarily choose to use less
exotic chemicals in their future hydraulic fracturing
operations. Also coming will be more emphasis on
recycling and reuse of flowback fluids to reduce the
water consumption footprint of these operations. 
EPA Hydraulic Fracturing Study Leonard Dougal,
Study Plan on November 3, 2011. This Partner at Jackson
plan outlines a study process which will examine Walker L.L.P. 1
the entire “life cycle” of fracing, with specific (Footnotes on page 20)
focus on the potential impact to drinking water
20

21. FRACKING ARTICLE...Pages 17-19 5
See U.S. Environmental Protection Agency, Office of
Research and Development, Plan to Study the Potential
(Footnotes) Impacts of Hydraulic Fracturing on Drinking Water
1
I would like to express my thanks to Jacob Arechiga, Resources 22 (Nov. 2011).
an associate with Jackson Walker for his contributions 6
Id.
to this article. 7
Current and Projected Water Use in the Texas
2
Economic Impact of the Eagle Ford Shale, Center Mining and Oil and Gas Industry, The University of
for Community and Business Research, The University Texas Bureau of Economic Geology (June 2011).
of Texas at San Antonio Institute for Economic 8
Texas Water Code §36.117(b).
Development (May 2012). 9
The EPA action began on December 7, 2010, when
3
Carl T. Montgomery and Michael B. Smith, Hydraulic EPA issued an Emergency Order under Section 1431
Fracturing: History of an Enduring Technology 27 of the Safe Drinking Water Act alleging that Range
(Dec. 2010). Resources’ fracing operations had caused methane
4
American Petroleum Institute, Freeing Up Energy, contamination to two domestic wells.
Hydraulic Fracturing: Unlocking America’s Natural Gas 10
Tex. H.B. 3328, 82nd Leg., R.S. (2011).
Resources 8 (July 19, 2010) 11
16 TAC §3.29.
Welcome to Horseshoe Bay
WANTED! June 13-15, 2012
Reservoir site in Texas for TWCA Mid-Year Conference
pilot development
More Aqua, Inc. is a spin off company from
the Massachusetts Institute of Technology. We
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evaporation losses from water reservoirs.
We are seeking a reservoir in Texas to develop
a pilot. The requirements are:
 20 - 50 acre surface area
 The reservoir is known not to have seepage
losses or is lined to prevent seepage losses
 The water is used for irrigation or industry.
 The pilot project will not interfere with the
reservoir function. Water can be drained or
added as long as we can account for it.
 The duration of the site rental would be
for approximately 2 years.
Please contact:
Moshe Alamaro
CTO, Interim CEO
More Aqua, Inc.
www.moreaqua.com
617-244-7995
21

22. TWCA WELCOMES
NEW MEMBERS
Resource Action Programs
Contact: David Grider
Sparks, NV 89431
Freeman Corbett, LLP
Contact: Ronald J. Freeman
Austin, TX 78759
San Patricio Municipal Water
District
Contact: Brian G. Williams
Ingleside, TX 78362
Velma R. Danielson
Spring Branch, TX 78070
EDITORIAL
SERVICES...
Barbara Payne
281-893-2099
barbara@paynecom.com
22