Drown Red Tape in Order to Confront State Water Challenges

In November, Texas voters will be asked to approve Proposition 6, a constitutional amendment that would take $2 billion from the state’s Economic Stabilization Fund, its savings account, to make loans for water development projects.

If the issue sounds vaguely familiar, it should. Just two years ago voters were asked to approve Proposition 2, a constitutional amendment authorizing the state to borrow up to $6 billion to make loans for water development projects. The lending authority contained in Prop 2 was “evergreen,” meaning that the state could relend up to the limit as prior loans were repaid.

Prop 2 passed. Yet so far very little of the money authorized by Prop 2 has been lent out. So why are Texans being asked to take money from the rainy day fund for a purpose never intended when existing revenue sources haven’t been used?

Texas does face some significant water challenges. According to one common estimate, Texas will need an additional 8.3 million acre-feet of water by 2060 to meet the demands of a growing population and economy. Current drought conditions have only heightened awareness of the importance of this issue.

But while Texas’ water challenges are real, they cannot be solved simply by spending more money. If Texas wants to see why water projects aren’t going forward, it needs to look not only at funding but also at regulatory impediments.

Regulation of water in Texas is a Byzantine mix of Spanish, English and statutory law. Groundwater is recognized both constitutionally and by state statute as being a vested property right of the landowner. Surface water, by contrast, is officially owned by the state.

In addition, the Legislature has, perhaps inadvertently, passed legislation which complicates — rather than facilitates — new water supply projects. Senate Bill 2 in 2001 and House Bill 1763 in 2005 enlarged the authority of groundwater conservation districts to limit private development of groundwater. In 2007, SB 3 established a multi-layered process leading to the Texas Commission of Environmental Quality’s adoption of environmental flow standards. Water supply projects based on development of groundwater and new surface water right permits are delayed by these new groundwater and environmental flow statutes.

Other regulatory issues complicate completion of water supply projects.

Regardless of whether Prop 6 passes in November, Texas must deal with these regulatory issues if it wants to ensure adequate water for the state’s future.

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