EDWARDS AQUIFER AND THE ESA

Dr. William M. Turner

Over the past several weeks,  I have written on the Endangered Species Act (ESA) and its effect on water availability in a number of Western States including Arizona, Oregon, and New Mexico.  Now comes a Federal Court order in Texas to limit ground water withdrawal from the Edwards Aquifer.

The Edwards Aquifer has been designated by the U.S. Environmental Protection Agency as a sole source aquifer for the city of San Antonio.  Of course water in the aquifer serves many other users as well.

The court order was issued to preserve natural spring flow at the Comal and San Marcos Springs fed by the aquifer in order to protect five federally protected species.   Carbonate aquifers such as the Edwards Aquifer, are recharged annually by rainfall and the spring discharge represents the natural discharge of the recharged precipitation from the aquifer. 

The decision is extremely important because it effectively changes the Texas system of water administration with regard to one major aquifer and sets a precedent for elsewhere.  From now on, the Edwards Aquifer will be administered under the doctrine of prior appropriations as compared with the general riparian rights system of water allocation followed everywhere else in Texas.  The operational rules for the Edwards Aquifer can be found at (http://www.e-aquifer.com). 

The riparian rights system of water allocation is based on the old English common law system.  The riparian rights doctrine holds that an individual may divert water from any surface stream that passes through or past his property provided the water is not wasted.  This doctrine developed in areas of abundant water supply.  Texas follows this system except where the surface water has been adjudicated such as the Rio Grande. 

With regard to ground water, the riparian rights doctrine is called the overlying rights doctrine and ground water belongs to the owner of the overlying surface.  In Texas it is called the "Right of Capture."  It is one of the bundle of property rights recognized by the common law. 

Most of the western states, however, subscribe to the doctrine of prior appropriations.  The doctrine of prior appropriations grew out of a system of administrative disposition of land as emigrants to New Spain and after 1821 to Mexico were given grants of land and water.  There was no system of land survey and grant boundaries were described based on geographic features such as rivers and mountain tops.  Where disputes arose over boundaries, the disputes were settled by declaring that the older grant had the better boundary.  With regard to water, the first to place water to beneficial use had the better right to it.

In California, the doctrine of prior appropriation had a slightly different origin but one not inconsistent with the system of administrative disposition.  As gold miners worked placer gold deposits, water was needed to sluice gangue minerals away from the gold.  The claim worker with the first use of water for sluicing had the prior right to use water.

In areas of scare water supply then, the water user with a use in existence when others are denied additional water will have the right to continue using the supply.  So, in the case of the Edwards Aquifer, although Texas is a riparian rights state, the significance of the court order restricting pumping to preserve five species of fauna is to impose the doctrine of prior appropriations on anyone seeking to withdraw water from the Edwards Aquifer. 

Though the demand for water from the Edwards Aquifer is increasing, the available supply has now been fixed by court order to 450,000 acre feet of withdrawal per year until 2007.  Thereafter, withdrawal will be limited to 400,000 acre feet per year. New uses of water from the Edwards Aquifer can only be had by buying the right to use water from someone else or by means of other strategems.  The Edwards Aquifer is fully appropriated according to the court order.

If you are a landowner in the vicinity of San Antonio and are interested in having us represent your interests before SAWS or the Bexar County Metropolitan Water District, contact us.

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