Molly Ivins April 10

AUSTIN — Long-term thinking is not the forte of the Texas Legislature. Thus, like Dictionary Johnson's comment about the dog walking on his hind legs, the surprise is not to find that it is not done well but that it is done at all. We have a statewide water conservation plan. It could be much better, but let us be grateful that it is done at all.

Thanks to Lt. Gov. Bob Bullock and the peerful state Sen. Buster Brown (well, I couldn't call him "peerless," could I?), we will divide ourselves into about 20 regional water planning areas. Each region will be required to submit water conservation plans to the state every five years, beginning in 2000. The Texas Water Development Board will then take the regional plans and make a state plan. All major holders of water rights will have to develop conservation measures, and all public water suppliers must develop drought contingency plans.

Should the House and the voters concur (what's a Texas election without several impenetrable constitutional amendments on the ballot?), we will consolidate all the bonding authorities for various water projects into one fund. The money will then be parceled out by the Water Development Board based on the regional plans and evidence that communities are using their water wisely.

It's hard to remember during the flood watch, but just last summer, Texas had a $5 billion drought that resulted in 95 percent of our 254 counties getting federal disaster relief. If you want a for-instance of how important water is, note that the Bass brothers of Fort Worth (nobody's fools) have been quietly buying up water rights in Southern California. They know the value of a scarce and critical resource.

The chief problem with Ol' Buster's bill is that it does nothing about the rule of capture. This legal doohickey, promulgated by the state Supreme Court in 1904, allows essentially unlimited pumping of ground water, even if the pumping causes springs, streams and wells to dry up. Touching the rule of capture causes the property-rights crowd to have a hissy, which is especially ridiculous when you consider that it leaves everybody else's property right to ground water at the mercy of one over-pumper.

We already have more than sufficient evidence from West Texas that over-pumpers are perfectly willing to sacrifice springs, streams, wells, entire aquifers and all posterity for their own short-term profits.

So long, Comanche Springs. To put it bluntly, West Texas is going to dry up and blow away if the madness isn't stopped.

Politically, it's a stinker of a problem because those who are the first to be hurt by the rule of capture are also the first to fight any change — to wit, farmers and ranchers. Farmers and ranchers are probably right that they would be the ones to lose out if water rights become a market commodity. With 80 percent of the state's population in urban areas, the cities will just outbid agricultural interests, and there goes the farm. As Ralph Haurtwitz wrote in the Austin American-Statesman, "Water flows uphill toward money."

But there are other ways to do, or undo, our current water laws. The 1904 decision called underground water too "secret, occult and concealed" to be regulated, but that was then.

Actually, the distinction between ground water and surface water is a legal fiction; the same water runs in many aquifers and streams. Some states appropriate ground water; New Mexico has a famous system in which a system of ditches is used to distribute water. California has a "reasonable share" doctrine; Barry McBee, new chairman of the Texas Natural Resource Conservation Commission, has talked about moving to a reasonable share doctrine.

The new water conservation plan makes it easier to establish ground-water conservation districts that in turn can regulate pumping, but the districts are not mandatory, and those outside them can continue to pump.

Another troubling issue is the matter of inter-basin water transfers. Corpus Christi wants to import water from the Colorado River — a considerable distance, you will notice, on your maps — and the Water Development Board wants to pump from the Sabine River basin to Houston.

In most of the West, inter-basin water transfers are now recognized as environmental folly; even those dam-building sons of guns in the U.S. Army Corps of Engineers now condemn it. Conservation is a far cheaper and more effective means of ensuring water supply.

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Molly Ivins is a columnist for the Fort Worth Star-Telegram.

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