Texas land commissioner becomes more active on water policy - Patterson pushes changes in rule of capture

By Robert Elder Jr.

Tuesday, December 2, 2003

Texas - Land Commissioner Jerry Patterson is taking an increasingly forceful role in Texas water policy as opponents of his plan to lease state lands for water sales are expected to gather today in West Texas.

Patterson has called on state lawmakers to change, but not necessarily end, Texas' rule of capture, which allows landowners to pump as much water beneath their land as they want without regard for the impact on their neighbors' supply.

The rule, established in 1904, is a touchstone of private property rights in Texas. But many urban officeholders, and a growing number of ranchers and farmers, also see it as an obstacle to making sure fast-growing areas can obtain the water they need.

Patterson said he isn't recommending any specific action for the newly formed Senate Select Committee on Water Policy, which is studying the full spectrum of state water policy.

But he cautioned that the rule "is not suitable for the 21st century" and indicated support for policies that would greatly curtail the rule.

Patterson said the rancorous debate about for-profit water sales could be calmed if the state had a system similar to correlative rights developed in the wake of Texas' 1930s oil boom -- a system that matched production with demand, often curtailing an individual's production. That would strike at the principle behind the rule of capture.

"If we had some system of correlative rights, we'd be having a whole different debate" on water sales, Patterson said.

Patterson's comments came in advance of a School Land Board meeting in Alpine today. The land board, which Patterson chairs, is scheduled to vote on a model lease for water sales from state lands and call for a subsequent 90-day public comment period on the issue.

Patterson has pushed for such leases as a way to boost revenue for the state's public education fund, which the land board oversees.

The land commissioner also said he expects a pending water deal with a for-profit Midland partnership, Rio Nuevo, to provide valuable hydrological data to the state as well as a bonus payment.

Rio Nuevo, which includes a group of oil men and Austin investor Steve Smith, said it wants to lease 355,000 acres of state land in four West Texas counties -- Hudspeth, Jeff Davis, Culberson and Presidio -- to pump and export groundwater. Rio Nuevo said it doesn't yet have customers.

If the deal is completed, Patterson said he expects Rio Nuevo to pay a nonrefundable bonus of up to $500,000 to the state. And Patterson predicted that Rio Nuevo would spend another $2 million to determine how much water is available on the state lands the partnership wants to lease.

"That data would belong to the State of Texas," regardless of whether there's a lease with Rio Nuevo, Patterson said. "The information would be very valuable to that part of Texas."

Opponents of a West Texas water deal weren't assuaged by Patterson's comments.

Brewster County Judge Val Beard said hydrological studies are needed to determine the effect of large-scale water pumping from West Texas but stressed that it should be done independently.

"If it's developed under the auspices of Rio Nuevo, intrinsically it's going to be suspect," Beard said.

The Brewster County Commissioners Court is one of several governmental bodies in West Texas that opposes water leases on state lands.

Their concerns stem from the lack of data on available groundwater in the region and whether leaseholders would be bound by the rules of local groundwater districts.

Local districts regulate pumping and well spacing, for instance, but cannot prohibit the export of water.

Leaving the rule of capture intact could help the land office cash in on water leases. Some of the land Rio Nuevo has targeted is outside the boundaries of any groundwater district, meaning the partnership could pump as much water as it wanted.

Unlimited pumping would mean Rio Nuevo has more water to sell, which in turn would raise royalty payments to the state.

Patterson said any party that leases state land for water will have to abide by the rules of the groundwater district -- or, if the land is outside a district, the rules of the nearest district.

Any lease will include such a provision, Patterson said, which he acknowledged greatly restricts the rule of capture for state leaseholders.

relder@statesman.com; 445-3671


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